Jessica D. Grimes v. Tia L. Houser

FILED
Aug 08 2018, 8:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Jessica D. Grimes Robert D. Haas
Indianapolis, Indiana Blankenship & Haas
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jessica D. Grimes, August 8, 2018
Appellant-Petitioner, Court of Appeals Case No.
49A02-1711-MI-2695
v. Appeal from the Marion Superior
Court
Tia L. Houser, The Honorable Timothy W. Oakes,
Appellee-Respondent. Judge
Trial Court Cause No.
49D02-1708-MI-33590
Shepard, Senior Judge.
[1] While the mother and father of a child were engaged in ongoing litigation about
visitation in the court where they had been divorced, the father’s new wife filed
a separate petition regarding visitation in a different court.
[2] The second court dismissed the new wife’s petition on grounds that the original
dissolution court had exclusive and continuing jurisdiction. It awarded
attorney’s fees to the child’s mother.
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[3] The trial court was right on both counts. We affirm.
[4] Tia and Aaron Grimes had a child, S.G. They divorced in 2011, via a decree
issued by Marion Superior Court 1 in Cause Number 49D01-0810-DR-49581.
The court awarded Tia, now Tia Houser, sole legal and physical custody of
S.G. but granted Aaron parenting time.
[5] Aaron married Jessica Grimes (“Mrs. Grimes”), who became S.G.’s
stepmother. Houser and Aaron disagreed about parenting time over the years,
and their disagreements were submitted to Marion Superior Court 1. On July
28, 2017, Aaron moved to dismiss the case due to alleged inactivity. Houser
objected, asserting that the parties had continuing disputes and that Aaron had
failed to respond to discovery requests. The court denied Aaron’s motion on
August 14, 2017.
[6] On August 31st, Mrs. Grimes filed a petition for visitation in Marion Superior
Court 2, claiming Houser had blocked her from seeing S.G. since April 2016.
Houser filed a motion to dismiss and a request for attorney’s fees, asserting
Marion Superior Court 1 had exclusive, continuing jurisdiction over parenting
time issues. On October 26, 2017, Marion Superior Court 2 granted Houser’s
motion without a hearing, dismissing the case and ordering Grimes to pay
Houser $875 in attorney’s fees.
[7] Grimes argues the court should not have dismissed her petition. The standard
of review for dismissal pursuant to Trial Rule 12(B)(1) is a function of what
occurred in the trial court. Bellows v. Bd. of Comm’rs of Cty. of Elkhart, 926
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N.E.2d 96 (Ind. Ct. App. 2010). If the facts are disputed but the court rules on
a paper record, the standard of review for dismissal due to lack of jurisdiction is
de novo. Johnson v. Patriotic Fireworks, Inc., 871 N.E.2d 989 (Ind. Ct. App.
2007).
[8] Indiana Code section 31-21-5-2 (2007) grants exclusive, continuing jurisdiction
over child custody issues to the court that issued the original child custody
determination. That statute was in play in State ex rel. Meade v. Marshall Super.
Ct. II, 644 N.E.2d 87 (Ind. 1994), when a stepmother filed a petition seeking to
bar a mother’s visitation even though the father and mother’s custody dispute
was pending in a different court. The Indiana Supreme Court noted the
interests of children require “stability and continuity” in the legal process, and
efforts to avoid the usual procedures through collateral attack are prohibited.
Id. at 89. The Supreme Court ordered the trial court to dismiss stepmother’s
petition due to lack of jurisdiction. See also Matter of Lemond, 274 Ind. 505, 413
N.E.2d 228 (1980) (holding trial judges and attorneys in contempt for
attempting to circumvent a Court of Appeals decision in a custody dispute by
pursuing a CHINS petition involving the child at issue in the custody dispute).
[9] Mrs. Grimes says she was not a party to Aaron and Houser’s ongoing litigation
in Marion Superior Court 1, but that issue has no more bearing on jurisdiction
than it did in the Meade case. Superior Court 1 issued the dissolution decree
addressing custody and parenting time and had continuing jurisdiction over
parenting time issues. Superior Court 2 properly dismissed Grimes’ petition for
visitation.
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[10] Next, Grimes argues Marion Superior Court 2 should not have awarded
attorney’s fees to Houser. We review the trial court’s decision to award
attorney’s fees for an abuse of discretion. Goodrich Quality Theaters, Inc. v.
Fostcorp Heating and Cooling, Inc., 39 N.E.3d 660 (Ind. 2015).
[11] Indiana Code section 34-52-1-1 (1998) authorizes a trial court to award
attorney’s fees as part of the cost to the prevailing party if the court finds that
either party:
(1) brought the action or defense on a claim or defense that is
frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the party’s
claim or defense clearly became frivolous, unreasonable, or
groundless; or
(3) litigated the action in bad faith.
[12] We have previously stated:
A claim is “frivolous” if it is made primarily to harass or
maliciously injure another; if counsel is unable to make a good
faith and rational argument on the merits of the action; or if
counsel is unable to support the action by a good faith and
rational argument for extension, modification, or reversal of
existing law. A claim is “unreasonable” if, based upon the
totality of the circumstances, including the law and facts known
at the time, no reasonable attorney would consider the claim
justified or worthy of litigation. A claim is “groundless” if no
facts exist which support the claim relied upon by the losing
party.
[13] America’s Directories, Inc. v. Stellhorn One Hour Photo, Inc., 833 N.E.2d 1059, 1070-
71 (Ind. Ct. App. 2005) (citations omitted), trans. denied.
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[14] Mrs. Grimes filed her petition for visitation in Superior Court 2 shortly after
Superior Court 1 denied Aaron’s request to dismiss. Based on precedent
establishing that Superior Court 1 had jurisdiction over parenting time, no
reasonable attorney would have considered Grimes’ petition to be justified or
worthy of litigation in Superior Court 2.
[15] To the contrary, the petition appears to have been an attempt to circumvent
Marion Superior Court 1 while imposing additional expenses on Houser. See
Clary-Ghosh v. Ghosh, 26 N.E.3d 986 (Ind. Ct. App. 2015) (affirming award of
attorney’s fees to father; wife’s contempt petition was frivolous and
unnecessarily litigious), trans. denied. Marion Superior Court 2 properly
awarded attorney’s fees to Houser.
[16] For the reasons stated above, we affirm the judgment of the trial court.
[17] Affirmed.
Brown, J., and Pyle, J., concur.
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