D.A. v. D.P. (mem. dec,)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 12 2018, 8:41 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE David L. Joley Elizabeth A. Bellin Fort Wayne, Indiana Elkhart, Indiana

IN THE COURT OF APPEALS OF INDIANA

D.A., February 12, 2018 Appellant-Petitioner/Respondent, Court of Appeals Case No. 20A03-1705-PO-966 v. Appeal from the Elkhart Superior Court D.P., The Honorable Appellee-Respondent/Petitioner. 1 Stephen R. Bowers, Judge The Honorable Dean O. Burton, Magistrate Trial Court Cause Nos. 20D02-1412-DR-890 20D02-1507-PO-383

1 In this consolidated appeal, D.A. was the petitioner in the protective order action and the respondent in the earlier-filed dissolution action, and D.P. was the converse.

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Kirsch, Judge. [1] This consolidated appeal2 stems from two trial court orders, one that dissolved

the marriage of D.A. (“Mother”) and D.P. (“Father”) and another that

dismissed Mother’s request for an order of protection. Mother raises several

issues, which we consolidate and restate as: whether the trial court erred when

it denied Mother’s verified petition for change of venue from the county. [2] We affirm.

Facts and Procedural History [3] Mother and Father married in April 2007, and they had one child (“Child”)

together, born in 2008. On December 31, 2014, Father filed a Petition for

Dissolution of Marriage in Elkhart Superior Court #2 (“Elkhart Superior #2”)

under cause number 20D02-1412-DR-890 (“Cause 890”). Appellant’s App. Vol.

II at 3. The Honorable Stephen R. Bowers (“Judge Bowers”) was and is the

presiding judge in Elkhart Superior #2, which is located in Elkhart, Indiana. At

the time of the dissolution filing, Father was employed as a Deputy Prosecuting

Attorney for Elkhart County and was at all relevant times assigned to cases out

of Elkhart Circuit Court, located in Goshen, Indiana.

2 In July 2017, this court issued an order granting D.A.’s request to consolidate related appeals, Appellate Case Number 20A04-1705-DR-971 with Appellate Case Number 20A03-1705-PO-966, and directing that all further filings be made under PO-966.

Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PO-966 | February 12, 2018 Page 2 of 14 [4] During the early pendency of the dissolution proceedings, the parties filed

agreed provisional orders concerning custody and visitation. Mother later

sought and obtained modification of the provisional orders, alleging that Father

had committed child abuse, physical and sexual in nature, on Child, and

mother asked for restricted visitation, psychological assessments, and

appointment of a guardian ad litem. The trial court appointed a guardian ad

litem and ordered the parties to mediation. In May 2015, the Indiana

Department of Child Services (“DCS”) filed a petition in Elkhart Circuit Court

alleging that Child was a Child in Need of Services (“CHINS”), related to

allegations of sexual abuse by Father against Child and allegations against

Mother of neglect for failing to protect Child from the abuse. The CHINS

action was removed from Elkhart Circuit Court and transferred to Marshall

County on June 3, 2015 in cause number 50C01-1506-JC-24.3 Id. at 21.

Initially, DCS substantiated the allegations; however, after a psychosexual

assessment by court-appointed Dr. Anthony Berandi (“Dr. Berandi”), who

opined that he did not believe that Child was sexually abused by Father and

that Mother’s conduct was alienating Father, and after an administrative appeal

filed by Father, DCS “unsubstantiated” the sexual abuse allegations against

Father as well as the associated neglect allegations against Mother. Appellant’s

Br. at 25, 26. In early November 2015, Child was removed from Mother’s care

3 After an initial CHINS adjudication, the CHINS cause was transferred because the Elkhart Circuit Court, where Father practiced as a deputy prosecutor, has jurisdiction over juvenile matters; the matter was transferred to the Marshall Circuit Court. Tr. Vol. II at 9; Tr. Vol. III at 25.

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and placed in foster care for eight months. In July 2016, DCS filed a Motion to

Terminate Jurisdiction in the Marshall Circuit Court due to reunification.

Appellant’s App. Vol. II at 25. [5] Meanwhile, on July 1, 2015, Mother filed for and received an Ex Parte Order

for Protection in Elkhart Superior #2 under cause number 20D02-1507-PO-383

(“Cause 383”), enjoining Father from threatening to commit or committing acts

of domestic violence or a sex offense against Mother. Id. at 15, 74-75. [6] On September 9, 2016, Mother filed in the dissolution action a Verified Petition

for Change of Venue (“Verified Petition”) in Elkhart Superior #2 under Cause

890. Id. at 78. Her petition alleged that, due to Father’s status as a Deputy

Prosecuting Attorney for Elkhart County, Father had an undue influence in the

county due to Father’s relationships and employer that required a change of

venue to another county. In support, Mother’s Verified Petition stated, among

other things, that on March 2, 2016, she had reported violations of the Cause

383 Protective Order to the Sheriff’s Office in LaGrange County, where Mother

lived, and that the reported information was not sent to the LaGrange County

Prosecutor and, instead, was forwarded to Elkhart County Prosecutor, Curtis T.

Hill, Jr. (“Hill”); Mother received a letter from Hill in June 2016 stating that the

matter should be addressed in either the pending dissolution proceeding or the

pending protective order proceeding, both in Elkhart Superior #2. Id. at 78-79,

85.

Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PO-966 | February 12, 2018 Page 4 of 14 [7] A few days later, at a September 12 preliminary hearing, Judge Bowers heard

arguments on Mother’s Verified Petition. Judge Bowers noted that Indiana

Code section 34-35-1-1, governing change of venue from the county, requires a

change if Father “has an undue influence over the citizens of the county,” and,

here, the dissolution matter was a bench trial, “so it’s not like you can’t get a

good jury, you don’t get a jury anyway[,]” making the citizens of the county

element inapplicable. Tr. Vol. II at 7. Counsel for Mother urged that Father’s

employment with the prosecutor’s office and the letter from Hill to Mother

illustrated Father’s influence in the county. Judge Bowers advised:

I know that [Father] works for the prosecuting attorney’s office. I’ve had some passing contact with him, but he doesn’t practice in my court. He’s not someone I have to deal with on a daily basis and so I don’t feel that my judgment is in any way compromised by the fact that he works for the prosecuting attorney.

Id. As for Hill, Judge Bowers assured, “I can tell you for sure Mr. Hill carries

no particular[] weight with me.” Id. at 8. Judge Bowers concluded that the

concerns raised by Mother did not have anything to do with his ability to rule

on or handle the dissolution matter and finding that Mother’s Verified Petition

was not sufficiently supported, the court denied it. Id. at 9. [8] In October 2016, Judge Bowers assigned the upcoming evidentiary hearings on

the dissolution matter to Magistrate Dean O. Burton (“Magistrate Burton”),

who is “an appointed Magistrate with the Elkhart Courts.” Appellant’s App. Vol.

II at 8; Appellant’s Br. at 22. No party voiced concern about or objection to the

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assignment. The parties proceeded with a bench trial before Magistrate Burton

on October 4 through October 6, 2016. [9] On October 4, 2016, before trial began, Mother’s counsel again raised the issue

of Mother’s request for a change of venue. Tr. Vol. III at 22-29. After

confirming that the request had already been heard and decided by Judge

Bowers, Magistrate Burton advised Mother that he was not in a position to

change that ruling, and any motion to correct error would need to be filed with

Judge Bowers in Elkhart Superior #2. Counsel for Mother acknowledged that

the Verified Petition had already been heard and decided, and he explained that

he wanted to present argument only as an offer of proof, to show Father’s

standing in the community and his influence over the investigation of any

violation of the protective order resulted in Mother’s inability to receive the

same treatment in court as would Father. Id. at 24, 26. [10] The trial commenced, and the dissolution and child custody matters were

bifurcated. Magistrate Burton entered findings on the issue of dissolution on

October 18, 2016. A judicial election was held in Elkhart County in November

2016, and Father’s trial counsel, Michael Christofeno (“Christofeno”) won the

seat for judge of Elkhart Circuit Court, with his term to begin in January 2017. [11] Trial resumed December 6 through December 13, 2016, on the remaining

issues. After Father completed his testimony on December 6, 2016,

Christofeno filed in court a Motion to Withdraw his appearance, which the trial

court granted, and Father proceeded with the remainder of the trial as a pro se

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litigant. Tr. Vol. VI at 47-49. During Mother’s testimony, she testified to

having been contacted by Father via text message, which she believed violated

the existing protective order, and, therefore, she contacted the LaGrange

County Sheriff’s Office about the alleged violation. Mother’s counsel requested

and received permission at trial to present Mother’s testimony as an offer of

proof with regard to her Verified Petition for Change of Venue, and Mother

testified to (1) receiving in the mail the letter from Hill and (2) being contacted

by the LaGrange County Prosecutor’s Office and meeting with a prosecutor

and an investigator. Tr. Vol. XI at 106-10. The offer of proof was to support

Mother’s contention that, because of Father’s status in the community, she

believed she would be unable to get a fair trial in Elkhart County. Id. at 112. [12] Trial lasted through December 13, 2016, and, at the court’s request, both parties

submitted proposed findings of fact and conclusions of law. On March 29,

2017, Magistrate Burton entered Findings, Recommendations, and Order

(“Order”), which among other things ordered as follows: awarded both parties

joint legal custody and physical custody of Child, which was consistent with the

guardian ad litem’s recommendation; ordered that the parties were to share

expenses in line with the Child Support Worksheets entered into evidence;

ordered that the parties would alternate in claiming the Child as a dependent

for tax purposes; denied Father’s Motion for Reimbursement for Overpayment

of Federal and State Taxes; denied Father’s Verified Showing of Non-

Compliance against Mother; and denied both parties’ request for the opposing

parties to pay attorney’s fees. Appellant’s App. Vol. II at 96-127. Magistrate

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Burton’s Order included a specific section regarding “Wife’s Motion for

Change of Venue,” observing that (1) Judge Bowers originally ruled on and

denied the motion, (2) Mother presented an offer of proof, and (3) the evidence

offered did not establish under Indiana Code section 34-35-1-1 that a change of

venue was warranted. Id. at 96-98. Judge Bowers approved the Order on

March 31, 2017. [13] As to Mother’s request for a protective order, Magistrate Burton issued a

separate Findings, Recommendations, and Order and determined that (1)

Mother failed to prove the existence of domestic or family violence as set forth

in her original petition, (2) Father did not present a credible threat to Mother or

her family, and (3) an order of protection was not necessary to bring about

cession of violence; therefore, Magistrate Burton recommended that the

Protective Order Petition be dismissed. Id. at 133-34. Judge Bowers approved

the recommendation and dismissed Mother’s petition for order of protection on

March 31, 2017. Id. at 135. Mother now appeals.

Discussion and Decision [14] Mother asserts that the trial court erred when it denied her Verified Petition that

sought a change of venue from Elkhart County. In her Verified Petition,

Mother argued that she was entitled to a change of venue pursuant to Indiana

Code section 34-35-1-1, which states, in relevant part:

The court or the judge shall change the venue of any civil action upon the application of either party, made upon affidavit showing one (1) or more of the following causes:

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....

(3) The opposite party has an undue influence over the citizens of the county, or an odium attaches to the applicant or to the applicant’s cause of action or defense, on account of local prejudice.

Ind. Code § 34-35-1-1(3); Appellant’s App. Vol. II at 77-80. The decision to grant

or deny a change of venue from the county will be reviewed for abuse of

discretion. Eads v. State, 677 N.E.2d 524, 525 (Ind. 1997). [15] Mother’s appeal primarily asserts a due process argument, namely that the trial

court violated her state and federal due process rights to a fair trial and to a fair

and impartial judge when it denied her motion for a change of venue. A trial

before an impartial judge is an essential element of due process. Everling v.

State, 929 N.E.2d 1281, 1287 (Ind. 2010). Bias and prejudice violate a party’s

due process right to a fair trial only where there is an undisputed claim or where

the judge expressed an opinion of the controversy over which the judge was

presiding. Id. at 1288. [16] Here, Mother argues that the situation as a whole leads to the conclusion that

her due process rights were violated, and she points to several factors in support

of her position. First, she urges that, although she reported a violation of the

protective order in LaGrange County, her complaint was not forwarded to the

LaGrange County Prosecutor and was, instead, somehow routed to Hill,

Father’s boss, who then sent a letter to Mother and told her to pursue the matter

in Elkhart County, either in the pending dissolution action or the pending

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protective order action. Second, Mother points to the circumstances

surrounding the DCS CHINS case, where allegations of sexual abuse by Father

to Child were, first, substantiated, and then unsubstantiated “based upon a

dubious theory,” and after the Child was placed in foster care for a period of

months, the case was dismissed. Reply Br. at 9. [17] Third, Mother relies heavily on the fact that Father’s trial counsel, Christofeno,

later became the judge of Elkhart Circuit Court and, in that position, necessarily

would be approving or not approving future findings and recommendations of

Magistrate Burton, who was a magistrate for all the Elkhart County courts.

Mother’s theory is as follows: (1) Father’s prior attorney, Christofeno, was

elected the judge of Elkhart Circuit Court in November 2016, effective January

2017; (2) Magistrate Burton, as a magistrate of all of the Elkhart County courts,

would be issuing findings in cases (not this one, but others) that Judge

Christofeno ultimately would be approving or not approving; and (3) therefore,

Magistrate Burton “would soon be working … as the surrogate and subordinate

of” Judge Christofeno, and some impropriety existed by having Magistrate

Burton preside in the dissolution and protective order proceedings, where

Christofeno had advocated for Father. Appellant’s Br. at 23. Mother concedes

that Magistrate Burton was at all times conscientious, thorough, and fair, but

argues that, because Father’s trial counsel later became Elkhart Circuit Court

judge, and Magistrate Burton would therefore necessarily “be working under”

Christofeno, she was denied a fair trial. Appellant’s Br. at 32. She argues that

these several circumstances, taken together, illustrate that her due process rights

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were violated to the extent that the case should have been transferred out of

Elkhart County. We disagree. [18] As an initial matter, we recognize Father’s suggestion that, prior to her appeal,

Mother did not raise any opposition or argument with respect to Magistrate

Burton presiding over her trial, and her argument is therefore waived. Appellee’s

Br. at 10. In response, Mother urges that her Verified Petition was based not

only on Indiana Code section 34-35-1-1, it “was also based on the Indiana and

United States’ Due Processes Clauses[,]” and, thus, the issue of a denial of due

process, including that Magistrate Burton “ended up working as a magistrate

for [Christofeno]” was “solidly before the Court at trial” and was not waived.

Reply Br. at 4, 7. Assuming without deciding that Mother did not waive her

argument with respect to Magistrate Burton, we find no due process violation

occurred. [19] The timeline reflects that Christofeno won the judicial seat in November 2016.

The latter portion of the bifurcated dissolution trial took place in December 6

through 13, 2016, and after Christofeno completed his examination of Father,

he withdrew as counsel on December 6, 2017. Mother had an opportunity,

after the election and before trial, to voice any concerns about Christofeno

becoming the judge of Elkhart Circuit Court and any alleged potential conflict

with Magistrate Burton stemming from Christofeno’s newly-elected position;

she did not do so. The last day of trial was December 13, 2016, and, over two

weeks later, Christofeno was sworn in as judge of Elkhart Circuit Court on

January 1, 2017. The record before us reveals that Mother voiced no objection

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to Magistrate Burton presiding over her trial, and she has not alleged, nor do we

find, that Magistrate Burton acted in a manner that was biased or that Mother

was prejudiced. Mother has failed to show that she was denied a fair trial

because Magistrate Burton presided over her trial. [20] Likewise, we reject Mother’s claims that she was denied due process and a fair

trial for reasons associated with (1) DCS’s reversal of its position concerning

CHINS allegations, and (2) the letter from Hill that, Mother claims, shows that

Father’s boss “intercepted” her complaints alleging violation of the protective

order. Reply Br. at 5. As to the CHINS matter, DCS initially substantiated

allegations, but after receiving a report from court-appointed Dr. Berardi, which

opined that Child had not been sexually abused and that Mother’s conduct was

alienating Child from Father, DCS unsubstantiated the claim. Dr. Berardi

testified at trial and was cross-examined by Mother’s counsel on his findings

and opinions. As to Hill’s letter, Mother presented this evidence as an exhibit

to her Verified Petition, and she made two subsequent offers of proof about it,

testifying that she had contacted LaGrange Sheriff’s Office to report that Father

had violated an existing protective order, namely Cause 383 issued by Elkhart

Superior #2, and that Hill wrote to her about it. Both Judge Bowers and

Magistrate Burton found that the letter from Hill, telling Mother to pursue her

complaints in the pending protection order action in Elkhart Superior #2 or in

the pending dissolution action, did not evidence undue influence or otherwise

require a change of venue. We agree and find that Mother has not proven that

she was prejudiced or denied a fair trial.

Court of Appeals of Indiana | Memorandum Decision 20A03-1705-PO-966 | February 12, 2018 Page 12 of 14 [21] Father urges that Mother’s appeal asserts only due process arguments and

appears to have abandoned her trial court claim that she was statutorily entitled

to a change of venue under Indiana Code chapter 34-35-1 by virtue of Father’s

role as a deputy prosecuting attorney in Elkhart County and his status and

influence in the judicial system associated with that position. Appellee’s Br. at 13

n.2. Mother responds that she has not abandoned that claim and maintains

that she was entitled under the statute to a change in venue. We agree with

Father that, primarily, Mother’s appellate arguments focus on the position that

she was denied a fair trial and due process, but because she does refer to and

include argument regarding Indiana Code section 34-35-1-1, Appellant’s Br. at

30-31, we will address whether the trial court should have granted a change of

venue pursuant to that statute. [22] Under Indiana Code section 34-35-1-1(3), and as is relevant here, the court shall

change the venue of any civil action upon the application of either party if

“[t]he opposite party has an undue influence over the citizens of the county, or

an odium attaches to the applicant or to the applicant’s cause of action or

defense, on account of local prejudice.” Here, the trial court held a hearing on

the matter on September 12, 2016, at which Mother’s counsel argued to Judge

Bowers that, due to Father’s employment with the Elkhart County Prosecutor’s

Office, Father possessed influence in the county and in the judicial processes, as

reflected by the letter she received from Hill, and consequently, Mother would

be prevented from receiving a fair trial, and a change in venue was necessary.

Mother was permitted on two subsequent occasions, October and December

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2016, to present argument and testimony as an offer of proof regarding the

matter. [23] Based on the record before us, we find that Mother has presented no facts to

show that Father’s job as a deputy prosecutor for Elkhart County resulted in an

undue influence of Judge Bowers or Magistrate Burton. Father was an

employee of the Elkhart County Prosecutor’s Office, but did not practice in

Elkhart Superior #2 and did not work for Judge Bowers or Magistrate Burton.

Mother does not point to any act or ruling at trial that was prejudicial to her.

She has failed to meet her burden of proof to show that the trial court abused its

discretion when it determined that she had not established the grounds under

Indiana Code section 34-35-1-1 for a change of venue from the county.

Accordingly, we find that the trial court did err when it denied her Verified

Petition for Change of Venue from the county. [24] Affirmed. [25] Bailey, J., and Pyle, J., concur.

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