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A new trial has been ordered in a Warrick County custody dispute after the Court of Appeals of Indiana determined that a successor judge abused her discretion when ruling based only on a review of prior transcripts.
Mother S.D. and R.D. were married for seven years and had two daughters together.
During the marriage, S.D. became pregnant with M.D. R.D. believed that M.D. was his son, but shortly after his birth, R.D. took a paternity test and learned that he was not M.D.’s biological father.
S.D. and R.D.’s marriage was dissolved a year later.
In fall of 2019, S.D., her two daughters and M.D. moved in with B.J., and in February 2020, B.J. filed a petition to establish paternity of M.D.
S.D. and B.J. were married in July 2020 and had another child.
In January 2021, S.D. filed a petition to dissolve her marriage to B.J. Also, she and R.D. modified their dissolution decree to agree that M.D. was a child born of the marriage.
The Warrick Superior Court approved the modification, and R.D. began paying child support for M.D. The trial court also consolidated the paternity and dissolution cases for the purpose of conducting hearings.
In August, R.D. filed a motion to intervene in both cases and argued that he was M.D.’s legal custodian. The trial court granted his motion to intervene in the paternity case.
The court held evidentiary hearings across several days in 2022. The parties gave conflicting evidence, and the court ultimately decided S.D. would have joint custody of M.D. while B.J. would have parenting time with the children. R.D. received no custody or visitation rights to M.D.
The court also ordered B.J. to pay $207 in child support per week, and it found that the de facto custodian statute did not give the court authority to grant visitation between R.D. and M.D.
Shortly after issuing the final orders, the trial judge resigned.
Before the successor judge was appointed, S.D. and R.D. filed joint motions to reconsider and correct error. They argued that the trial court’s ruling was not supported by evidence and that it erred as a matter of law when it concluded R.D. was not M.D.’s de facto custodian.
The successor judge held a hearing on S.D. and R.D.’s motions and informed them she would listen to the recorded hearings before ruling on the motions. Then, the court held another hearing at which B.J. argued it should deny the motions because the prior judge was in a better position to weigh the evidence after observing the demeanor of the witnesses.
The trial court granted S.D. and R.D.’s motions to reconsider and to correct error in the paternity case but concluded that a new trial was not necessary. It also found that the trial court erred in its previous ruling and that B.J. is not fit to have custodial rights to M.D.
Further, the trial court found that it was in M.D.’s best interest to award equal legal and physical custody to both S.D. and R.D. B.J. would have no custody rights to M.D. but would have supervised parenting time.
The court later issued a separate order granting S.D.’s post-trial motion in the dissolution proceeding.
B.J. filed his appeal, raising the issue of whether the successor trial judge erred in reweighing the evidence and credibility of the witnesses.
The appellate court found an abuse of discretion, determining the successor judge did not have an opportunity to hear the evidence and observe the demeanor of witnesses for herself when she didn’t hold a new evidentiary hearing.
“For all of these reasons, the trial court abused its discretion when it deviated from the direction provided under Trial Rule 63(A) and issued new findings of fact and new conclusions of law based only upon a review of the transcripts,” Judge Paul Mathias wrote.
The appellate court thus reversed the trial court’s orders granting S.D.’s and R.D.’s post-trial motions and remanded for a new consolidated trial on the parenting time and custody issues presented by S.D. and B.J.’s divorce case and paternity case concerning M.D.
Judges Elizabeth Tavitas and Peter Foley concurred in Bryan J. Jackson v. Samantha DeJean, Ryan DeJean, 23A-DC-1410.
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