Opinion
23A-GU-3053
05-31-2024
Susan Farren, Appellant-Petitioner v. A.F. and C.G., Appellees-Respondents
ATTORNEY FOR APPELLANT Brandon C. Elkins-Barkley Cross Glazier Reed Burroughs, P.C. Carmel, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Angela Warner Sims, Judge The Honorable William Byer, Jr., Commissioner Trial Court Cause No. 48C01-1901-GU-66
ATTORNEY FOR APPELLANT Brandon C. Elkins-Barkley Cross Glazier Reed Burroughs, P.C. Carmel, Indiana.
MEMORANDUM DECISION
CRONE, JUDGE.
Case Summary
[¶1] Susan Farren appeals an order consolidating and transferring a guardianship case that she originally filed in Madison County to Marion County, where an adoption case that she brought was being litigated. We affirm.
Facts and Procedural History
[¶2] In January 2019, in Madison County, Farren filed a petition to establish guardianship of S.G., who was born in November 2016. In March 2019, the trial court granted the guardianship petition. In June 2019, Farren petitioned to add Steven Wolter as a successor guardian for S.G. One week later, A.F. (Mother) and C.G. (Father) challenged Farren's guardianship, with each filing a pro se "petition for return of guardianship." Mother and Father requested the appointment of counsel. In July 2019, their requests were denied.
It is unclear whether the successor guardianship was granted.
[¶3] In March 2020, in Marion County, Farren and Wolter filed a petition to adopt S.G. The adoption case was assigned cause number 49D15-2003-AD-12841, and attorneys were appointed for Mother and Father. The adoption case dragged on for years. In July 2023, the parties reached an agreement regarding a mediator. In August 2023, the trial court issued an order appointing guardian ad litem (GAL) for S.G.
[¶4] At a remote hearing on November 13, 2023, the trial court in Marion County advised the parties that it would be consolidating the Madison County guardianship matter with the Marion County adoption case, and it scheduled a hearing on parenting time. Farren and Wolter filed a motion for relief from judgment, citing Indiana Trial Rule 60(B) and arguing that the Marion County trial court did not have authority to enter "an oral order consolidating" the guardianship matter. Mother and Father filed a joint motion in opposition to the motion. In a November 19, 2023 minutes and order, the Marion County trial court stated that, per "Trial Rule 42," the adoption matter "should be consolidated with related Cause 48C01-1901-GU-000066, or, at a minimum, the related guardianship matter should be stayed pending resolution of this case." Within that same order, the Marion County trial court vacated the parenting time hearing and stated that "any order of consolidation or order staying proceedings should be issued by the Madison Circuit Court."
We gleaned this information, and other quoted information not otherwise identified, from the Odyssey case management system.
[¶5] On November 20, 2023, in Madison County, Mother and Father filed their "Motion to Consolidate Pursuant to Trial Rule 42(D)," asserting, inter alia, that a parenting time dispute exists "which would be best resolved" by the Marion County trial court, "which is intimately familiar with the circumstances of these parties over the past three years." That same day, the trial court in Madison County issued the following order:
Comes now the Court, having conducted correspondence with the Marion County Superior Court Family Division Judicial Officer, now Orders this matter consolidated and transferred to Marion County Superior Court, Family Division, Cause #49D15-2003-AD-012841.
Appealed Order at 1. On November 24, in Madison County, Farren filed an objection to, and motion to vacate, the trial court's order. The trial court in Madison County did not rule on Farren's objection and motion. Farren filed a notice of appeal in December 2023 and filed her appellant's brief in February 2024. No appellee's brief was filed.
[¶6] On March 15, 2024, in Marion County, Farren and Wolter filed a motion to continue the final hearing, which had been scheduled for March 25 and 28, 2024. Mother and Father filed a motion to deny Farren and Wolter's "ninth motion to continue this four-year-old pending case." On March 19, the trial court in Marion County denied the motion for continuance. On March 22, Farren, Wolter, their counsel, the GAL, counsel for Mother, counsel for Father, and the trial court of Marion County signed a "Stipulation to Dismiss" in which they "hereby stipulate[d] to the dismissal of [Farren and Wolter's] Petition for Adoption pursuant to TR 41(A)(1)(b)." It further states that the trial court "approves this stipulation. This matter is DISMISSED and all future hearings are vacated."
[¶7] On April 15, 2024, the present appeal of the Madison County trial court's order was fully briefed. Additional details will be included where relevant.
Discussion and Decision
[¶8] Citing Indiana Trial Rule 42, Farren asserts that the Madison County trial court erred when it issued its order consolidating and transferring the Madison County guardianship case to the Marion County adoption case. Mother and Father did not file an appellee's brief. In such a case, we "need not develop an argument for [them] but instead will reverse the trial court's judgment if [Farren's] brief presents a case of prima facie error." In re Adoption of E.B., 163 N.E.3d 931, 935 (Ind.Ct.App. 2021) (citation and quotation marks omitted). Prima facie error means "at first sight, on first appearance, or on the face of it." Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind.Ct.App. 2014). "Still, we are obligated to correctly apply the law to the facts in the record to determine whether reversal is required." Id.
[¶9] At the outset, we observe that the appealed order contains no citation to any statute or rule. Appealed Order at 1. However, the appealed order references correspondence with the Marion County trial court, and the Marion County trial court did cite Trial Rule 42 in its November 19, 2023 order. That fact, coupled with Mother and Father's "Motion to Consolidate Pursuant to Trial Rule 42(D)," convince us that the trial court likely was relying, at least in part, upon Trial Rule 42 when it issued its order.
[¶10] "Indiana Trial Rule 42 provides that a trial court may order actions to be consolidated when the actions involve a common question of law or fact." Kindred v. Ind. Dep't of Child Servs., 136 N.E.3d 284, 292 (Ind.Ct.App. 2019) (concluding that denial of motion to consolidate was not an abuse of discretion), trans. denied (2020). "The decision to consolidate actions is purely discretionary and will be overturned only when a manifest abuse of discretion is established." In re Paternity of Tompkins, 518 N.E.2d 500, 507 (Ind.Ct.App. 1988) (also noting that party must show resultant prejudice to establish that trial court erred in denying Trial Rule 42 motion). Consolidating guardianship and adoption matters is hardly unheard of given the common questions of law and fact. See, e.g., In re Adoption of J.R.O., 87 N.E.3d 37, 39-40 (Ind.Ct.App. 2017) (consolidating CHINS, guardianship, and adoption cases), trans. denied (2018); In re Adoption of S.L., 210 N.E.3d 1280 (Ind. 2023) (consolidation of adoption and guardianship noted in unpublished lower court decision).
[¶11] Farren maintains that consolidation was improper under subsections (A) and (D) of Trial Rule 42. She contends that Trial Rule 42(A) authorizes consolidation of two separate actions but only if such actions are pending before the same court, which, she argues, these were not. She asserts that Trial Rule 42(D) allows consolidation of two matters from different counties, but requires a motion filed in the earlier action, permits consolidation only for discovery and pre-trial proceedings, and mandates that consolidation be into the court with the earliest filed cause.
[¶12] Trial Rule 42(A) provides:
(A) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
"[T]he plain language of Trial Rule 42(A) authorizes only consolidation of actions pending before the court; it does not authorize transfer of actions from one court's jurisdiction to that of another for consolidation." Figg &Muller Eng'rs, Inc. v. Petruska, 477 N.E.2d 968, 970 (Ind.Ct.App. 1985), trans. denied; see also Ingoglia v. The Fogelson Cos., 530 N.E.2d 1190, 1197 (Ind.Ct.App. 1988) (concluding that consolidation of cases from different counties and concerning different parties was contrary to law); cf. Bodem v. Bancroft, 825 N.E.2d 380, 382 (Ind.Ct.App. 2005) (concluding there was no abuse of discretion in consolidating, per Trial Rule 42(A), two actions filed before same court where each case resulted from separate collision, but there was commonality and overlap in motorist's injuries).
[¶13] Farren filed the guardianship case in Madison County. The following year, Farren, along with Wolter, initiated the adoption case in Marion County rather than in Madison County. Regardless of whether the guardianship and adoption actions involved a common question of law or fact, or whether consolidation would avoid unnecessary costs or delay, the actions were not pending before the same court. Cf. J.R.O., 87 N.E.3d 37 (consolidated adoption and guardianship actions were before the same court); S.L., 210 N.E.3d 1280 (same). Therefore, unlike in J.R.O. and S.L., consolidation under Trial Rule 42(A) would not have been appropriate in the present case.
[¶14] Trial Rule 42(D) "explains the procedure and requirements to effectuate the consolidation of cases pending in different courts." Cinergy Corp. v. St. Paul Surplus Lines Ins. Co., 785 N.E.2d 586, 596 (Ind.Ct.App. 2003), trans. Denied. The rule provides in relevant part as follows:
(D) Actions Pending in Different Courts. When civil actions involving a common question of law or fact are pending in different courts, a party to any of the actions may, by motion, request consolidation of those actions for the purpose of discovery and any pre-trial proceedings. Such motion may only be filed in the court having jurisdiction of the action with the earliest filing date and the court shall enter an order of consolidation for the purpose of discovery and any pre-trial proceedings unless good cause to the contrary is shown and found by the court to exist.Ind. Trial Rule 42(D).
[¶15] Here, a parenting time issue seems to have prompted the Marion County trial court to consider consolidation. When Farren and Wolter challenged the Marion County trial court's authority to order consolidation, that court issued its November 19, 2023 minutes and order, stating that, per Trial Rule 42, the adoption matter should be consolidated with the related guardianship case, or the guardianship matter should be stayed pending resolution of the adoption. Within that same order, the Marion County trial court vacated its parenting time hearing and acknowledged that any consolidation and/or stay should be issued by the Madison County trial court.
[¶16] The next day, in Madison County, Mother and Father filed their motion requesting an order consolidating the guardianship cause with the adoption cause "until such time as the [adoption petition] is granted or denied by the Marion [County trial court] and for all other relief just and proper." For support, their motion asserted that: guardianship was awarded in 2019; the same petitioner filed for adoption of the same child; the adoption cause remains pending; Farren and S.G. have resided in Marion County since 2019; a parenting time dispute exists that would best be resolved by the Marion County trial court that is "intimately familiar with the" parties' circumstances during the past three years; the Marion County trial court recommended consolidation and/or a stay; the causes have common questions of law and fact; and, per Trial Rule 42, they were filing their request in the court with the earlier filing date.
Mother and Father attached the Marion County trial court's November 19, 2023 minutes and order to their motion.
[¶17] Mother and Father met Trial Rule 42(D)'s requirement that a party to any of the actions file a consolidation motion in the court having jurisdiction of the action with the earliest filing date. The fact that the appealed order references correspondence between the Madison County trial court and the Marion County trial court does not alter the fact that a proper request for consolidation was filed in the appropriate court.
Of note, had the present case concerned an Indiana cause and one from outside Indiana, communication with and cooperation between the two courts would be expressly permitted under the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act. See, e.g., Ind. Code §§ 31-21-4-1, -8, and -9.
[¶18] Farren is correct that Trial Rule 42(D) permits a party to consolidate "for the purpose of discovery and any pre-trial proceedings," and that the rule generally envisions the consolidation to be into the court having the earliest filing date. Trial Rule 42(D) has been referred to as a "case management tool to direct pretrial activity so as to avoid duplication and unnecessary confusion." State ex rel. Firestone v. Parke Circuit Court, 621 N.E.2d 1113, 1114 (Ind. 1993). That said, our supreme court noted that the comments accompanying the rule "suggest broad applicability[.]" Id. at 1115.
"Under this Rule, all proceedings of any kind prior to the trial itself would be conducted by the court having the earliest filing date. This would include motions for summary judgment." Comments on Rule 42(D) by the Indiana Supreme Court Committee on Rules of Practice and Procedure, reprinted in 3 William F. Harvey, Rules of Procedure Annotated 31 (2d ed. 1988 and Supp.1993). The benefits of consolidation can accrue when a party is engaged in pre-trial settlement negotiations. The rule contemplates return of the consolidated case upon completion of such pre-trial proceedings to the court in which it had been pending so that it can be tried by a judge or jury in the original venue. Where parties elect to settle, the purposes of returning to the original court would not be served by doing so.Id. (initial emphasis added) (affirming consolidation of class actions filed in separate counties). Moreover, "[n]othing in this Rule shall restrict the equitable discretion of the court having the earliest filed action to dismiss or stay that action. If such an order is entered, that court shall no longer be considered the court in which is pending the action with the earliest filing date for purposes of this Rule." Ind. Trial Rule 42(D).
[¶19] The reality of the present case is that the Madison County trial court was persuaded by Mother and Father's motion and/or by correspondence with the Marion County trial court that the guardianship and adoption cases shared common questions of law and fact sufficient to justify consolidation. Indeed, both cases involve the same parties, and, at the heart of them, each case concerns the best interest of the same child, S.G. S.G. has been living with Farren in Marion County since age two, when the 2019 guardianship was granted by the Madison County trial court. Prior to the November consolidation issue, four years had passed with no activity in the Madison County case. Conversely, the adoption case, which Farren herself filed in Marion County in 2020, had been very active from its inception through 2023.
[¶20] Although Trial Rule 42(D) generally contemplates that the court where the earlier case was filed should be the court in which consolidation occurs, the Madison County trial court permitted the guardianship case to be consolidated with the adoption case in Marion County. Farren has alleged no lack of notice or any prejudice whatsoever with the Marion County trial court presiding over the consolidated cases. Considering that Trial Rule 42(D) also allows the court having the earliest filed action to stay or even dismiss its action, in this situation with obvious common questions of law and fact, the same parties, and no allegation of harm in having the Marion County trial court preside over the consolidated cases. We have often held that where the purpose of a rule is satisfied, this Court will not elevate form over substance. J.R.O., 87 N.E.3d at 43 (citing Parham v. Parham, 855 N.E.2d 722, 727 (Ind.Ct.App. 2006), trans. denied (2007)). To hold that the trial court in Madison County must have presided over the consolidated cases under these particular circumstances would be to elevate form over substance, to waste judicial and party resources, and to further drag out proceedings related to a child for no appreciable benefit. This we will not do.
[¶21] Affirmed.
Bailey, J., and Pyle, J., concur.