COA reverses custody change for man who didn’t appear at hearing

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A Bloomington man who claimed he never received notice of a court hearing established prima facie error in a case where the mother of his child was awarded custody and parenting time, prompting the Court of Appeals of Indiana to reverse and remand to the trial court.

In July 2021, Spring Delano filed a letter with the Owen Circuit Court expressing concern for her and Christopher Bixler’s child. The court concluded it would construe the letter as a motion to modify custody, parenting time and child support.

One month later, the court held a hearing at which Delano appeared, pro se, and Bixler did not appear. The court stated that it had attempted to notify Bixler of the proceedings, but correspondence had been returned as undeliverable because the father had not provided an updated address.

Delano testified she had not spoken to Bixler in eight months, and she didn’t know where he currently lived, saying, “[n]o one can find him. (The Department of Child Services) can’t find him in Monroe or Owen, we’ve seen him parked in certain places, have little birdies of where he is and DCS can never find him.”

The mother alleged neglect of the child by Bixler, poor living conditions and an inability to exercise her parenting time due to her inability to locate the father and child. She ultimately requested custody.

The trial court agreed, granting Delano legal and physical custody and while giving Bixler parenting time only as she approved. Also, Bixler was ordered to pay 46 a week in child support.

But about two weeks later, Bixler’s attorney filed an appearance because the father’s previous attorney had withdrawn from the case in 2019. Bixler filed a motion for relief from judgment.

At a subsequent hearing, Bixler testified that he had been at a new address for seven or eight months after a hectic eviction, which he claimed Delano knew, and he had never received a copy of her July filing. He also said he would have contested her motion and had not learned about the trial court’s order modifying custody, parenting time and child support until after it was entered.

When asked if he had filed a notice of relocation with the court he said, “No, not immediately. It was kind of a toss up.”

Delano testified that she had tried to send her initial letter to Bixler, but she admitted she sent it to an address where he had told her he was no longer living. When asked when Bixler told her he wasn’t living there, she answered, “Before.”

Delano then stated, “I knew he was living there but he told me he wasn’t living there. That’s why I kept going there.”

The mother agreed that she knew of four addresses at which Bixler might have been living, but she did not send a copy of her letter to those locations because she did not “have their addresses[,] [she] just [knew] the places,” and she never saw Bixler after filing her letter.

The court then entered an order denying Bixler’s motion for relief from judgment, stating, stated, “Attempts were made to provide Father with Notice, including sending Notice to the address maintained on file with the Court.”

On appeal, the COA reversed and remanded to the trial court for an evidentiary hearing, finding the appellant demonstrated prima facie error.

“Father’s motion for relief from judgment alleged that he has a meritorious defense to Mother’s claims and argued he should be allowed to present those defenses at a hearing,” Judge Elaine Brown wrote for the COA. “At the hearing on Father’s motion, his attorney argued that Mother had omitted crucial information at the previous hearing which the court would have considered in making its determination, and Father testified that he would have contested the request to change custody.

Under the circumstances and in light of the record,” Brown wrote, “we conclude that Father has demonstrated prima facie error.” The case is Christopher Ray Bixler v. Spring Nicole Delano, 21A-JP-2054.

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