Justin Moore, Appellant v. Joseph Martine, Kathy Martine and Victoria Moore, Appellees (2025)

MEMORANDUM DECISION

[1] Justin Moore (“Father”) appeals the trial court's order granting a motion to transfer venue. We reverse.

Facts and Procedural History

[2] On December 3, 2024, Father filed a “Motion to Register and Domesticate Alabama Child Custody and Parenting Time Orders with the Above Captioned Court Pursuant to I.C. § 31-21-6-4” in the Johnson Superior Court under cause number 41D04-2412-MI-266. Appellant's Appendix Volume II at 11 (capitalization omitted). Father asserted that he resided in Greenwood, Indiana, that his five minor children and Kathy Martine and Joseph Martine (“Maternal Grandfather,” and together with Kathy, “Maternal Grandparents”) resided in Fishers, Indiana, and that the children's mother, Victoria Moore (“Mother”), remained in Alabama. He asserted that Mother was ordered by the Alabama Department of Child Services to keep her address current but she had failed to do so, publication “may be necessary as Mother has not informed [him] or Maternal Grandparents as to her current location,” and, “[w]hile Alabama still retains jurisdiction as Mother may still reside in Alabama, Indiana is the more proper and convenient venue to enforce and modify the current orders on custody and parenting times as all parties, with the exception of Mother, reside in Indiana.” Id. at 12.

[3] On January 9, 2025, the Johnson Superior Court entered an Order Confirming Registration. The court found that, “[o]n July 18, 2022, the Morgan County Juvenile Court of Alabama issued its Further Disposition Order for all children ․” Id. at 46. It ordered that “[t]he Order Confirming Registration is accepted by and made an order with the Johnson Superior/Circuit Court of Indiana.” Id. at 47. It also stated that “[c]onfirmation of the registered order precludes further contest of the order with respect to a matter that may have not been asserted at the time of registration.” Id. That same day, the Clerk of the Johnson County Courts signed a Notice of Registration of Child Custody Order.

[4] The chronological case summary (“CCS”) contains entries indicating that Maternal Grandparents were served on January 13, 2025. On January 30, 2025, Father filed a Notice of Perfected Service on Grandparents asserting that “on January 19, 2025 at 6:42 P.M. [Maternal Grandparents] who reside together ․ were served notice of this action by process service at their residence ․” Id. at 52. He attached an Affidavit of Service indicating that a third party served the “Notice, Order, and Motion as to Registering AL Order” on Maternal Grandfather by personal service on January 19, 2025. Id. at 53. On March 6, 2025, Father's counsel filed an Affidavit and Motion to Deem Mother Served.

[5] On March 6, 2025, Father filed a Verified Petition for Modification. That same day, the court scheduled a preliminary hearing for April 10, 2025, and a hearing for July 10, 2025.

[6] On April 2, 2025, Maternal Grandparents filed a “Verified Motion to Dismiss (Transfer) Venue of Case to Hamilton County” which asked that, “pursuant to Ind. Tr. R. 12(B)(3), ․ the Court ․ transfer this matter to Hamilton County Superior Court 6.” Id. at 62. They alleged that they have lived in Hamilton County since 2021, they had never lived in Johnson County, they have had sole legal and physical custody of the children since 2021, and Father and Mother were entitled to supervised parenting time with the children. They asserted that, “[u]nder Ind. Tr. R. 75(A)(1), preferred venue lies in ‘the county where the greater percentage of individual defendants included in the complaint resides’ ․” Id. at 63. They asserted that preferred venue lies in Hamilton County and transfer was mandatory.

[7] On April 4, 2025, Father filed an “Objection and Response to Respondents’ Motion to Dismiss (Transfer) Venue” which argued that Maternal Grandparents failed to cite a portion of Ind. Trial Rule 12(B) providing that a motion making the defenses shall be made before pleading if a further pleading is permitted or within twenty days after service of the prior pleading if none is required. Id. at 67 (capitalization omitted). He argued that Maternal Grandparents had the opportunity prior to filing their response to the motion to domesticate to file a motion for change of venue and failed to do so, that the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) “does not explicitly provide for a preferred venue,” and “Johnson County is authorized, under the UCCJEA, to decide this case once the Alabama cases are registered in Indiana.” Id. at 68. He also argued that Ind. Trial Rule 75(A)(8) allows “preferred venue to lie in the county where [his] claim may be commenced under any statute recognizing a special or general remedy or proceeding,” “Indiana Code 31-21 recognized a special or general remedy or proceeding to domesticate the Alabama custody orders and to modify those orders,” and his claim was commenced in Johnson County where he resides. Id. at 68-69.

[8] On April 10, 2025, the court held a hearing. On April 17, 2025, the court entered an order transferring the case to Hamilton Superior Court.¹

Discussion

[9] Father argues that the trial court abused its discretion in transferring the case to Hamilton County. He asserts that he followed the requirements in Ind. Code § 31-21-6-4 to register the Alabama orders in Indiana. He argues that Maternal Grandparents failed to timely contest the registration of the Alabama orders. Specifically, he cites Ind. Trial Rule 12 and contends that “[s]ince [Maternal Grandparents] were not required to file a responsive pleading if they consented to the registration, they had twenty (20) days to file their motion to transfer but failed to do so; therefore, they waived their ability to do so, more than four (4) months after the trial court granted the registration.” Appellant's Brief at 10.

[10] Before addressing Father's arguments, we note that Maternal Grandparents did not file an appellees’ brief. When an appellee fails to submit a brief, we do not undertake the burden of developing arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Bixler v. Delano, 185 N.E.3d 875, 877-878 (Ind. Ct. App. 2022) (citing Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006)). Prima facie is defined as “at first sight, on first appearance, or on the face of it.” Id. (quoting Graziani v. D & R Const., 39 N.E.3d 688, 690 (Ind. Ct. App. 2015)). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Id. (citing Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002)).

[11] In Strozewski v. Strozewski, this Court stated:

Indiana Trial Rule 75 provides that, “[a]ny case may be venued, commenced and decided in any court in any county.” Ind. Trial Rule 75(A). However, if a party files a pleading or a motion to dismiss pursuant to Trial Rule 12(B)(3), the trial court shall order the case transferred to a county or court selected by the party filing such motion or pleading if the trial court determines that the county or court where the action was filed does not meet preferred venue requirements or is not authorized to decide the case and that the court or county selected has preferred venue and is authorized to decide the case. T.R. 75(A). The trial rule lists several criteria under which preferred venue can lie. T.R. 75(A)(1)-(10). The rule does not create a priority among these subsections establishing preferred venue. Muneer v. Muneer, 951 N.E.2d 241, 243 (Ind. Ct. App. 2011). Preferred venue may lie in more than one county, and if an action is filed in a county of preferred venue, change of venue cannot be granted. Id.

36 N.E.3d 497, 500 (Ind. Ct. App. 2015).

[12] Trial Rule 75(A)(8) provides that preferred venue lies in “the county where a claim in the plaintiff's complaint may be commenced under any statute recognizing or creating a special or general remedy or proceeding[.]” Ind. Code § 31-21-6-4(a) provides that “[a] child custody determination issued by a court of another state may be registered in Indiana, with or without a simultaneous request for enforcement, by sending” certain documents and information, including under subsection (a)(3) “the name of a parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered,” “to the appropriate Indiana court.” Ind. Code § 31-21-2-7 provides that “ ‘[c]ourt’ means an entity authorized by state law to establish, enforce, or modify a child custody determination.” Father's December 3, 2024 “Motion to Register and Domesticate Alabama Child Custody and Parenting Time Orders with the Above Captioned Court Pursuant to I.C. § 31-21-6-4” asserted that he resides in Greenwood, Indiana, which is in Johnson County. Appellant's Appendix Volume II at 11 (capitalization omitted). At first sight, it appears that Johnson County is a county where Father's claim may be commenced under Ind. Code § 31-21-6-4 and constitutes a preferred venue under Trial Rule 75(A)(8). Although preferred venue may lie in more than one county, if an action is filed in a county of preferred venue, change of venue cannot be granted. See generally Strozewski, 36 N.E.3d at 500 (holding the plaintiff met the requirements of the dissolution statute because, at the time he filed his petition for dissolution in Hamilton County, he had resided in Indiana for at least six months and in Hamilton County for at least three months; therefore Hamilton County was a preferred venue for the action under Trial Rule 75(A)(8), and the trial court did not err in denying the defendant's motion to transfer venue).

[13] We also address Father's argument that Maternal Grandparents’ motion was untimely. Ind. Trial Rule 12(B) provides:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required; except that at the option of the pleader, the following defenses may be made by motion:

* * * * *

(3) Incorrect venue under Trial Rule 75, or any statutory provision. The disposition of this motion shall be consistent with Trial Rule 75,

* * * * *

A motion making any of these defenses shall be made before pleading if a further pleading is permitted or within twenty [20] days after service of the prior pleading if none is required. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, any of the defenses in section (B)(2), (3), (4), (5) or (8) is waived to the extent constitutionally permissible unless made in a motion within twenty [20] days after service of the prior pleading. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

(Emphasis added).

[14] The record reveals that the January 9, 2025 Notice of Registration of Child Custody Order addressed to Maternal Grandparents informed them that “[a] hearing to contest the validity of the registered determination must be requested not more than twenty (20) days after service of notice” and “[f]ailure to contest the registration shall ․ [r]esult in confirmation of the child custody determination; and ․ [p]reclude further contest of that determination with respect to a matter that may have otherwise been asserted.” Appellant's Appendix Volume II at 48-49.² The CCS contains entries indicating that Maternal Grandparents were served on January 13, 2025. Father also filed a Notice of Perfected Service on Grandparents asserting that “on January 19, 2025 at 6:42 P.M. [Maternal Grandparents] who reside together ․ were served notice of this action by process service at their residence ․” Id. at 52. Maternal Grandparents did not contest the registration by the Johnson Superior Court within twenty days of either January 13 or 19, 2025. Rather, Maternal Grandparents did not file any response for more than seventy days when they filed the April 2, 2025 “Verified Motion to Dismiss (Transfer) Venue of Case to Hamilton County.” Id. at 62. Under these circumstances and in light of Maternal Grandparents’ failure to file an appellees’ brief, we conclude that Father has demonstrated prima facie error. Accordingly, we reverse the trial court's grant of Maternal Grandparents’ motion to transfer venue of the cause to Hamilton Superior Court.³

[15] Reversed.

FOOTNOTES

1.   The order merely stated in part: “The Court, being duly advised, TRANSFERS this matter to Hamilton Superior Court 4 for further proceedings.” Appellant's Appendix Volume II at 9.

2.   Ind. Code § 31-21-6-4(a) provides that “[a] child custody determination issued by a court of another state may be registered in Indiana, with or without a simultaneous request for enforcement, by sending” certain documents and information, including under subsection (a)(3) “the name of a parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered,” “to the appropriate Indiana court.” Ind. Code § 31-21-6-4(b) provides that “[o]n receipt of the documents required by subsection (a), the registering court shall ․ (2) serve notice on each person named under subsection (a)(3) and provide the person with an opportunity to contest the registration in accordance with this section.” Ind. Code § 31-21-6-4(c) provides that the notice must state that the failure to contest the registration shall result in confirmation of the child custody determination and “preclude further contest of that determination with respect to a matter that may have otherwise been asserted.” Ind. Code § 31-21-6-5 provides that “[a] person seeking to contest the validity of a registered order must request a hearing not more than twenty (20) days after service of the notice.”

3.   At the hearing, counsel for Maternal Grandparents argued, “[W]e're entitled to this Change of Venue, and I think, um, under the Woodard case it can ․ be done at any time, or granted at any time, requested at any time prior to trial.” Transcript Volume II at 5. He later mentioned “the Woodard case” was “a 2003 case” that “says that ․ the motion to move the case to the preferred county can be done at any time prior to trial.” Id. at 7. In Woodard, a party appealed a trial court's ruling that granted a change of venue in the parties’ pending dissolution proceeding. Woodard v. Woodard, 794 N.E.2d 484, 485 (Ind. Ct. App. 2003), trans. denied. On appeal, this Court observed that Ind. Trial Rule 12(B)(8) provided in part that, “[i]f a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at trial any defense in law or fact to that claim for relief.” Id. at 487. The Court observed that the appellee asserted, and the trial court agreed, that this sentence “allows a party to present any Trial Rule 12(B) motions through the time of trial.” Id. The Court concluded that, given that the appellee did not waive his objection to improper venue and Trial Rule 12(B) allowed such an objection through the time of the trial when no responsive pleading was required, the trial court did not abuse its discretion by transferring the cause to the county in which appellant lived at the time that she filed for a dissolution of her marriage. Id. at 487. Ind. Trial Rule 12(B)(8) no longer contains the language discussed in Woodard. Thus, we do not find Woodard instructive. Moreover, as mentioned above, Maternal Grandparents did not file an appellees’ brief.

Brown, Judge.

Judges Felix and Scheele concur. Felix, J., and Scheele, J., concur.