COA affirms denial of mother’s premature motion to modify child custody 

A mother who fought to modify custody of her two children before the court entered her dissolution decree has had her request rejected by the Indiana Court of Appeals.

In May 2018, the Hendricks Superior Court held a fact-finding hearing on a dissolution petition for Dawn Jones and Steven Gruca’s marriage, and subsequently entered its order dissolving the marriage and establishing custody, parenting time and child support for their two children.

However, Jones moved to modify custody over the children after the fact-finding hearing but before the court had entered a decree of dissolution. Jones asserted, among other things, that several continuing changes in circumstances existed that warranted a modification of custody and visitation and that a change was in the best interest of the children.

She also asserted, among other allegations, that one of the children wanted to live primarily with her, that one of the children had regressed in school work and redeveloped behavioral problems, and that the children’s intellectual growth was being stunted because their father allowed them to play video games while in his care.

The trial court ultimately denied Jones’ motion, noting in its decision that, “Mother did not even wait to see what the Court decided[] before deciding there needed to be a change.”

“Petitions, like Mother’s in this case, are why the holding in (Mundon v. Mundon, 703 N.E.2d 1130, 1133-34 (Ind. Ct. App. 1999)), exists. A court may make a determination of what is in the best interests of the children, based on all the available evidence existing up to that point, and those issues are forever put to rest. The Court, and the parties, may rely on the fact that all of those issues have been resolved and only NEW issues or information will be presented to the Court at a later date. If not for this holding, a litigant could dredge up any incident from the past, including one already litigated, and present it to the Court at any time. The litigation would never end,” the trial court continued.

After rejecting Jones’ allegations, the trial court noted her refusal to cooperate with the parenting coordinator and cautioned “any further refusal to cooperate with the PC, any further actions such as ignoring the PC or refusing to follow her recommendations, could result in severe sanctions.”

Concluding that it would “not tolerate further behavior of this nature”, the trial court therefore denied Jones’ motion to modify child custody, prompting her to appeal in Dawn (Gruca) Jones v. Steven Alan Gruca, 19A-DR-2484.

The Indiana Court of Appeals affirmed, disagreeing with Jones’ assertions that the trial court’s order does not sufficiently identify a valid basis for its decision to deny her motion for modification and that the evidence does not support the court’s judgment.

“Disregarding our standard of review and her burden on appeal to show error, Mother simply asserts that three of the statutory factors ‘have experienced a substantial change’ and then goes on to relitigate the evidence she finds favorable but that the trial court in the first instance did not find worthy of credit or controlling. That is, Mother does not demonstrate how the evidence as a whole ‘leads unerringly and unmistakably to a decision opposite that reached by the trial court,’” Judge Edward Najam wrote for the appellate court.

Next, it further rejected Jones’ argument that the trial court violated her constitutional right to open courts under Article 1, Section 12 of the Indiana Constitution when it ordered her to take future issues regarding custody, support, or visitation to the PC before bringing the issues to the court.

The appellate court concluded that Jones’ argument that the trial court erred does not challenge the factual basis for its findings.

“Rather, she simply asserts that any restriction on her right to file a motion for modification is per se contrary to law. Mother is incorrect. And, insofar as Mother asserts that the trial court improperly delegated its judicial power by requiring the parties to first try to resolve their disputes out of court with the PC, Mother’s argument is not supported by cogent reasoning, and we do not consider it,” the appellate court concluded.

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