Kat Lyric Frederick, Appellant-Defendant v. John Kronberg, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] John Kronberg (“Father”) and Kat Frederick (“Mother”) (collectively, “Parents”) divorced in 2023. Pursuant to their marital settlement agreement, Mother was granted primary physical custody of Parents’ children, O.K. and H.K. (collectively, “the Children”). While H.K. (“Child”) visited with Father in the summer of 2025, Father moved for an expedited provisional hearing for Child to remain in his care for the school year. At the related hearing, after Father's case-in-chief was presented, Mother moved pursuant to Indiana Trial Rule 41(b) to dismiss Father's motion. The juvenile court took the matter under advisement and ultimately ruled in Father's favor, granting Father “temporary” custody of Child, but later indicating that the order issued was a final order. Mother contends that she was not provided with an adequate opportunity to be heard on the matter. Because we agree with Mother, we reverse and remand for further proceedings.

Facts and Procedural History

[2] Parents have been divorced since 2023. Pursuant to the parties’ marital settlement agreement, approved by the juvenile court on April 21, 2023, Mother was granted primary physical custody of the Children, with Father to have parenting time according to the Indiana Parenting Time Guidelines where distance is a factor.

[3] Mother lives in Indiana and Father lives in Massachusetts. At some point in September of 2024, Child was suspended from school for ten days after he made a threat to other students at the school. Child visited with Father during the summer of 2025, for approximately eight weeks, starting in May. On July 11, 2025, Father moved for an expedited provisional hearing for Child to remain in his care for the school year, arguing that a temporary modification of physical custody of Child was in Child's best interests.

[4] The juvenile court ordered a hearing on Father's request, set for July 31, 2025. At the hearing on July 31, 2025, Father gave an opening statement, Mother gave an opening statement, and Father called Reunification Therapist Dr. William Steele to testify regarding his work with the family. Father also called Mother to the stand, and then Father called himself to the stand.

[5] Father testified that in the last eight-and-one-half weeks, Child had been with him in Massachusetts; Child had visited with his “best friend” of four years; and, if Child were to begin school in Massachusetts, he would be attending in person. Tr. Vol. II p. 67. At some point during Father's testimony, the hearing was recessed, and another hearing was scheduled for August 25, 2025. On August 22, 2025, the Guardian ad Litem (“GAL”), Colin Koons, filed an unopposed motion to be excused from the August hearing, noting that his previous recommendations to deny the emergency custody modification remained unchanged. The juvenile court granted the motion.

[6] At the August 25, 2025, hearing, the juvenile court noted on the record that the court was “in the process of [Father's] case in chief.” Tr. Vol. II p. 75. Father continued his testimony from the previous hearing and then called Father's wife (“Stepmother”) to the stand. The juvenile court recessed during this testimony from 10:20 a.m. to 10:25 a.m., after which counsel for Mother stated “[w]e have got an eleven o'clock hard deadline, so I will have no further cross examination questions of this witness at this time[.]” Tr. Vol. II p. 123.

[7] At the end of Father's case-in-chief, Mother moved “under 41B,” arguing that the standard for an emergency request for change of custody had not been met. Tr. Vol. II p. 127.

[8] Mother's counsel stated the following:

Obviously, I–I would have additional evidence to present to the Court. We have [Mother's husband] here. I would recall [Mother] to discuss what is currently happening over the last thirty days[․] My hope and intent was that, if the Court does not believe that an emergency truly exists at this moment, that we would be able to bypass that additional testimony being presented to the Court. I still think this court is going to hear all about it in a–what is going to have to probably a one to two day hearing which is why I think all us receiving a formalized [GAL] report, potentially a custody evaluation, and then potentially mediation is probably the most apropos methodology[.]

Tr. Vol. II p. 130. The juvenile court responded, “Okay. I have given you instructions on proposed orders,” and, “I will have it under advisement until the Court issues an order.” Tr. Vol. II pp. 130–31. On August 28, 2025, the juvenile court issued an order from the expedited hearing to “Address [Child]’s School Enrollment” (the “Order”), in which the juvenile court granted Father “temporary physical custody” of Child. Appellant's App. Vol. II p. 74. The juvenile court ordered Child to be “immediately enrolled in the local in person school from Father's residence[,]” and for Mother to have parenting time pursuant to the Indiana Parenting Time Guidelines when distance is a factor. Appellant's App. Vol. II p. 74.

[9] Mother filed a notice of proposed proffer statement on September 23, 2025, in which she provided that “[a]t the conclusion of the prior hearing, Counsel for [Mother], expressed that additional evidence would be presented if the 41(b) request was denied[,]” and that at the second setting, Mother would have presented additional evidence and witnesses. Appellant's App. Vol. II p. 76. On September 29, 2025, Mother moved for clarification of the Order, seeking clarification that the Order was a final order modifying custody. Mother argued that the Order “does not provide for any expiration of Father's primary physical custody of [Child]” and that “[t]he Order did not schedule any subsequent final hearing[.]” Appellant's App. Vol. II p. 80. On September 29, 2025, the juvenile court issued an order clarifying that the Order was a final order modifying custody.

Discussion and Decision

[10] Mother contends that the juvenile court granted custody of Child without affording her due process. The Fourteenth Amendment “protects the traditional right of parents to establish a home and raise their children.” Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). “[T]he interest of parents in the care, custody, and control of their children [ ] is perhaps the oldest of the fundamental liberty interests recognized” by the United States Supreme Court. Troxel v. Granville, 530 U.S. 57, 65 (2000). “Child custody proceedings implicate the fundamental relationship between parent and child, so procedural due process must be provided to protect the substantive rights of the parties.” Bixler v. Delano, 185 N.E.3d 875, 878 (Ind. Ct. App. 2022).

[11] Initially, we note that the parties agree that further evidentiary hearings are required. Mother contends that because the Order is a final order modifying custody, the juvenile court violated her due-process right to call witnesses and present evidence before issuing the Order. Father contends that the September 29, 2025 order clarifying that the Order was final should be vacated “and remanded with instructions to set this matter for a final hearing,” but contends that Mother invited error by moving for a dismissal under Rule 41(b). Appellee's Br. p. 26.

[12] Father concedes that Rule 41(b) “preserves the right of the moving party to present evidence, if the motion is denied[,]” but argues that “it appears to have been treated as a waiver by the [juvenile] court of Mother's right to present evidence.” Appellee's Br. p. 30 n.2. We disagree that Mother's 41(b) motion amounted to invited error or waiver.

[13] Indiana Trial Rule 41(b) provides the following:

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief.

Mother contends that by denying her the opportunity to present evidence, in addition to denying her due process, the juvenile court failed to consider “all relevant factors” for custody modification required by Indiana Code section 31-17-2-8. Appellant's Br. p. 23. In general, we review custody modifications for an abuse of discretion “with a preference for granting latitude and deference to our trial judges in family law matters.” In re the Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012), trans. denied. Whether a party is denied due process, however, is a question of law that “we review de novo.” McClendon v. Triplett, 184 N.E.3d 1202, 1210 (Ind. 2022), trans. denied.

[14] The Fourteenth Amendment of the United States Constitution prohibits any state from depriving any person of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Article 1, Section 12, of the Indiana Constitution provides that “[a]ll courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.”

[15] In this case, Mother was not given any meaningful opportunity to present evidence before the modification of custody was ordered. At the end of Father's case-in-chief, Mother moved “under 41B,” arguing that the standard for an emergency request for change of custody had not been met. Tr. Vol. II p. 127. Father responded with argument, and the juvenile court then asked the parties to give “proposed orders within two days[.]” Tr. Vol. II p. 130. Mother's counsel stated, “I would have additional evidence to present[,]” and “[m]y hope and intent was that, if the Court does not believe that an emergency truly exists at this moment, that we would be able to bypass that additional testimony[.]” Tr. Vol. II p. 130. Mother's counsel also noted that the juvenile court would “hear all about it in a [․] one to two day hearing[.]” Tr. Vol. II p. 130. The juvenile court indicated it had given instructions for proposed orders and took the matter under advisement.

[16] After the Order was issued, Mother filed a notice of proposed proffer,¹ and moved for clarification of the Order, in which she noted that the Order did not provide for expiration of the custody granted to Father or schedule any subsequent final hearing. In short, Mother's ability to present evidence and argument on her behalf with regard to the custody modification, was denied.

[17] Father nevertheless argues that Mother received due process because she was given the opportunity to cross-examine Father's witnesses, including herself. “Due process requires ‘the opportunity to be heard at a meaningful time and in a meaningful manner.’ ” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Under the circumstances, we cannot say that Mother received an adequate opportunity to be heard in a meaningful time and manner as it relates to the proceedings at issue in this case. See Walker v. Kelley, 819 N.E.2d 832, 837 (Ind. Ct. App. 2004) (affirming the juvenile court's granting of the mother's motion to correct error and set aside its previous default judgment against her and providing, “we do not see how the best interests of the children could be ascertained without a hearing that affords both parents the opportunity to present evidence and cross-examine witnesses”).

[18] Furthermore, to the extent that Father argues that the Order was a “provisional order” we disagree, as “[p]rovisional orders are temporary in nature and designed to maintain the status quo while issues are more fully developed.” In re M.R.A., 41 N.E.3d 287, 293 (Ind. Ct. App. 2015). The juvenile court's clarification on the Order provided that “the Order [․] is a final order modifying custody. To the extent there is any legal ambiguity, the Court further concludes there is no just reason for delay and the Order constitutes a final appealable order pursuant to Trial Rule 54(B).” Appellant's App. Vol. II p. 83. See Indiana Appellate Rule 2(H)(2) (providing that a judgment is final if “the trial court in writing expressly determines under Trial Rule 54(B) [․] that there is no just reason for delay and in writing expressly directs the entry of judgment (i) under Trial Rule 54(B) as to fewer than all the claims or parties[.]”).

[19] Because the Order was a final order modifying custody and was entered without Mother ever having the opportunity to present her case, we reverse and remand to the juvenile court for further proceedings consistent with this memorandum decision.²

FOOTNOTES

1.   Mother's notice of proposed proffer statement indicated that Mother would have presented evidence contesting Father and Stepmother's testimony, evidence related to Child's individualized education plan, Child's services, including counseling services, correspondence between Parents, and additional testimony regarding Child's interactions and relationships within the home and mental health. Mother contends that the evidence described in the proffer “would have been germane to the issue of custody.” Appellant's Br. p. 35.

2.   Because we conclude that Mother did not receive an adequate opportunity to be heard, we do not address her argument that the evidence was insufficient to sustain the custody modification.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur