Gayda v. Gayda

HOFFMAN, Presiding Judge. Jennie Gayda appeals the trial court’s denial of her motion for change of venue from the judge in a dissolution proceeding. Jennie asserts that the trial court’s judgment in the dissolution must be reversed, and the case remanded for a new trial. Jennie filed a motion for change of venue from the judge on June 29, 1981. The trial court granted the motion on the same day and listed a panel of judges. Jennie struck from the panel. Richard failed to strike, and on July 16, the Clerk of the Lake Superior Court struck for him, leaving the Honorable Morton B. Kanz, who qualified as special judge. The clerk was ordered to notify counsel for Richard, and this was the first notification he received of the change of venue from the judge. On July 22, Richard filed a motion to strike change of venue from judge. On August 12, after holding a hearing, Judge Kanz found that there was no provision in the rules for the clerk to strike for a party in the case of a change of judge. Judge Kanz disqualified himself and ordered the entire file be sent back to Judge Danikolas. On August 19, Judge Danikolas held a hearing on the motion to strike and ultimately granted the motion. The court held that Richard had not been served with a copy of the motion for change of venue from the judge nor did Jennie’s attorney file a certificate of service showing Richard’s attorney was served. The court ordered the motion for change of venue from the judge stricken on the basis that it had not been timely filed. On August 20, Jennie again filed for a change of venue from the judge. A hearing was held on September 25, and Judge Danikolas denied the motion and found it was untimely filed. On October 16,1981, the trial court issued its Dissolution of Marriage Decree. Jennie raises no issue as to the final decree or division of property, only the denial of her motion for change of venue from the judge. Richard counters that the judgment is correct because he was not served with a copy of the motion for change of venue from the judge, and therefore, it was untimely filed. Indiana Rules of Procedure, Trial Rule 5 provides in pertinent part: “(A) Service: When required. Unless otherwise provided by these rules or an order of the court, each party shall be served with ... (3) every written motion except one which may be heard ex parte[.]” A change of venue from the judge must be granted by the trial court upon the filing of a motion by one party or his attorney.1 Ex parte is defined as: “On one side only; by or for one party; done for, in behalf of, or on the application of, one party only.” Black’s Law Dictionary 661 (4th Ed. 1951). [13] Therefore, Jennie was not required to serve Richard with notice of the motion for change of venue from the judge. The resolution of this appeal is found in Ind.Rules of Procedure, Trial Rule 79. Subdivision (10) provides: “When it becomes necessary to submit a written list under subdivision (4) of this rule, the presiding judge, within two [2] days after his attention has been called to that fact, shall submit to the party or parties a written list in accordance with subdivision (4) of this rule. The party or parties shall strike from the written list as provided in subdivision (4) of this rule within not less than seven [7] nor more than fourteen [14] days thereafter as the court may allow. If the moving party fails to strike within the time allowed, he shall not be entitled to a change of venue from the judge and the presiding judge shall resume jurisdiction over the ease. If the non-moving party fails to strike within the time allowed, the clerk shall strike for him.” (Emphasis added.) Therefore, Judge Kanz was properly qualified as special judge. He was mistaken in finding that there was no provision in the rules for the clerk to strike for a party in the case of a change of judge. However, Judge Kanz did disqualify himself and returned the cause to Judge Dani-kolas, who lost jurisdiction even for emergency matters once Judge Kanz was qualified. This led to another error which would also have been avoided had TR. 79 been adhered to. Subdivision (4) contains the answer to this dilemma: “If neither method provided for by subdivisions (2) or (3) for the selection of a special judge be adopted, then the presiding judge, or if there be no such judge, the regular judge of the court, shall submit a list of three [3] persons from which, by striking, an appointee may be selected. In an adversary proceeding each party shall strike one [1] name and in an ex parte proceeding said party shall be entitled to strike one [1] name from such list. The moving party shall strike first. From the name or names remaining the judge submitting such list shall select and appoint the special judge. “In cases other than those enumerated in subdivision (1) where a judge on his own motion disqualifies himself, the plaintiff side shall strike first. If the special judge selected hereunder qualifies then subsequently becomes disqualified by reason other than the filing of a motion for change from the judge, or disqualifies himself, such fact shall be certified to the Supreme Court which thereupon shall appoint a special judge." (Emphasis added.) This cause must therefore be reversed because Judge Danikolas was without proper jurisdiction to decide the matter. It should have been certified to the Supreme Court for the appointment of a special judge. Reversed. GARRARD, J., concurs. STATON, J., dissents with opinion. Footnotes [1] Ind.Rules of Procedure, Trial Rule 76.