Carrie Sturdivant v. Michael Sturdivant (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 31 2016, 7:10 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Kevin L. Likes Jon C. Owen
Likes Law Office Yoder & Kraus, P.C.
Auburn, Indiana Kendallville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carrie Sturdivant, May 31, 2016
Appellant-Petitioner, Court of Appeals Case No.
57A04-1510-DR-1701
v. Appeal from the
Noble Circuit Court
Michael Sturdivant, The Honorable
Appellee-Respondent. G. David Laur, Judge
Trial Court Cause No.
57C01-1502-DR-24
Kirsch, Judge.
[1] Carrie Sturdivant (“Mother”) appeals the trial court’s dissolution decree, which
granted physical custody of the parties’ children to Michael Sturdivant
(“Father”). Mother raises one issue for our review: whether the trial court
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abused its discretion when it determined the issue of custody in a summary
proceeding manner.
[2] We affirm.
Facts and Procedural History
[3] On February 6, 2015, Mother filed a petition for dissolution of marriage.
Mother and Father are the parents of two children. At the final hearing on the
petition for dissolution, the parties informed the trial court that issues of
property and debt had been determined by agreement, and the hearing would
only discuss issues of custody, parenting time, and child support. Tr. at 6-7.
Both parties were sworn in, and Mother’s counsel advised the trial court that,
prior to the hearing, the parties had agreed to a summary presentation. Id. at 4-
5, 10. Thereafter, the hearing proceeded with the attorneys primarily presenting
evidence, and the parties responding to inquiries by the trial court. At a later
point in the hearing, Mother’s counsel informed the trial court that the
agreement to a summary presentation was to not include testimony from any
other parties or other witnesses. Id. at 50.
[4] At the conclusion of the hearing, the trial court took the matter under
advisement, and on August 13, 2015, issued the dissolution decree, in which it
ordered that Mother and Father shall have joint legal custody of the children
and that Father shall have physical custody of the children. On August 26,
2015, Mother filed a “Verified Motion for Stay of Execution, Motion to Correct
Error, and Motion for Relief from Judgment.” Appellant’s App. at 16. In her
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motion, Mother acknowledged that “counsel for the parties stipulated to
presenting the evidence in summary fashion.” Id. The trial court denied
Mother’s motions in an order dated on September 28, 2015. Mother now
appeals.
Discussion and Decision
[5] Mother argues that the trial court abused its discretion when it determined the
issue of custody of the children in a summary proceeding manner. In the
present case, both Mother and Father were present at the final hearing on the
dissolution petition, were represented by counsel, and were sworn in by the trial
court. Mother’s counsel notified the trial court that, prior to the hearing, the
parties had agreed to a summary presentation. Tr. at 10. The hearing then
proceeded with the attorneys primarily presenting evidence, and the parties
responding to inquiries made by the trial court. Later in the hearing, Mother’s
counsel informed the trial court that the agreement to a summary presentation
was to not include testimony from any other parties or other witnesses. Id. at
50. No objections were made to the summary nature of the proceedings.
“[O]bjections not contemporaneously raised are waived.” Bogner v. Bogner, 29
N.E.3d 733, 740 (Ind. 2015). Timely objections to the procedure utilized by the
trial court are required, and “‘[a]n appellant cannot sit idly by without
objecting, await the outcome of trial, and thereafter raise an issue for the first
time on appeal.’” Id. (quoting Trout v. Trout, 638 N.E.2d 1306, 1307 (Ind. Ct.
App. 1994)).
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[6] In the present case, both parties agreed to proceed with the final hearing in a
summary fashion, and at no point did either party object to the hearing being
conducted in this manner. Further, after the dissolution decree was issued,
Mother filed a motion to correct error, in which she stated that, “counsel for the
parties stipulated to presenting the evidence in summary fashion” at the final
hearing. Appellant’s App. at 16. We, therefore, conclude that Mother has
waived her right to appeal the nature of the summary proceeding.
[7] Additionally, despite this waiver, “Indiana adheres to the rule requiring a
showing of prejudice before reversal may be granted.” Neese v. Kelley, 705
N.E.2d 1047, 1050 (Ind. Ct. App. 1999). Mother has the burden to show actual
prejudice. Id. Here, Mother was represented by counsel during the proceedings
and was given a full opportunity to present her own arguments and evidence.
Mother was also given the opportunity to rebut the arguments presented by
Father. We, therefore, conclude that Mother was not prejudiced by the
summary nature of the proceedings. The trial court did not abuse its discretion.
[8] Affirmed.
[9] Riley, J., and Pyle, J., concur.
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