Three judges for the Indiana Court of Appeals agreed that the trial court should revisit its order granting custody of a child to her abusive father, but they disagreed as to how the lower court should deal with the case. In Anita (Handy) Oberlander v. Kevin Handy, No. 08A04-0903-CV-121, the parties’ violent and tumultuous relationship ended after a short term marriage of a few months. Oberlander had filed for divorce and sought an order of protection due to Handy’s violent behavior. Handy repeatedly violated the protective order, contacting and following Oberlander. Handy’s behavior continued to escalate and in April of 2007, Oberlander found him hiding in her home and he subsequently assaulted her with her own stun gun. When police arrived, Handy fled and led them on a high speed chase before crashing his vehicle and being airlifted to a hospital. He was subsequently convicted of felony counts of domestic battery. Following his discharge from the hospital and a suicide attempt, Handy began taking medication which seemed to help control his anger. He also began actively engaging in anger management classes and counseling. Oberlander participated in the counseling and Handy’s behavior improved so much so that the protective order was modified in July 2007 to allow Handy to resume restricted visitation. While the couples’ divorce proceedings were still pending in August 2007, Handy’s visitation with a daughter he had from a prior marriage was halted as a result of the violent incidents and criminal convictions.
By September 2007, Handy moved back into the marital home despite Oberlander’s objections. When Oberlander called the police to have him removed, the police claimed the modified protective order was too vague and they refused to force Handy to leave the residence. In February, 2008, Oberlander was contacted by her youngest son who was home with Handy. When she came home, she found her son locked out of the home and Handy became verbally and physically abusive. He destroyed several items of personal property and threw the couple’s daughter out of the computer chair, causing the child’s head to hit the coffee table. Police were called and remained while Oberlander packed her and the children’s belongings so she could leave the residence. Oberlander abruptly moved to South Carolina to reside with her father, claiming she feared Handy would hunt her down.
Leading up to the final divorce hearing, Oberlander’s prior attorney withdrew and she had been unable to find another attorney through legal aid. She failed to attend the final hearing in Indiana because she could not afford the travel expenses and contended she feared for her and her children’s safety. The trial court held the final hearing in her absence and concluded that Oberlander had abandoned Handy and hindered visitation, even going so far as to call her conduct “unconscionable.” The Carroll Circuit Court sided with Handy and granted him full custody of their daughter, despite his history of violence.
Oberlander filed a request for relief from judgment alleging fraud. A subsequent investigation by the Department of Child Services, which was ordered by the trial court, recommended Oberlander have custody of the daughter and Handy have supervised visitation for the time being. Despite that recommendation, the Carroll Circuit Court judge denied Oberlander’s request, finding she didn’t prove fraud. Oberlander appealed. In their decision, the Court of Appeals upheld the trial court’s decision to not grant relief pursuant to Indiana Trial Rule 59 or 60. Chief Judge John Baker and Judge Ezra Friedlander wrote that Oberlander’s failure to appear precludes her from seeking relief from judgment and precludes her from making a valid argument the trial court actually committed an “error” that must be rectified. Judge Patricia Riley dissented with the other judges, writing that she would grant Oberlander’s motion to correct error and remand for a new hearing based on Walker v. Kelley, 819 N.E.2d 832, 837 (Ind. Ct. App. 2004). Judge Riley also wrote in a footnote she is troubled by the trial judge’s judgment in her award of custody to Handy because she was the same judge who stopped Handy’s visitation with his other daughter from the prior marriage. (emphasis added).
Despite upholding the trial court’s decision not to grant relief due to “error,” the Indiana Court of Appeals believed the Carroll Circuit Court had the option to treat Oberlander’s motion as a motion to modify the custody arrangement it had ordered in the final hearing. The ICA remanded the matter for the trial court to revisit the case and weigh all the evidence to determine whether a modification of the current custody arrangement is warranted. In the written opinion authored by Chief Judge Baker, the Court of Appeals stated, “We urge the trial court to look to the factors set forth in Indiana Code section 31-17-2-8 and apply those factors explicitly in its final custody order.” (emphasis added).
It is obvious that although the Court of Appeals did not reverse the Carroll Circuit Court’s order regarding the relief of judgment, the ICA found the custody order issued by the lower court quite troubling as evidenced by their remand of the case to have the custody issues revisited and the strongly worded dissent and footnote issued by Judge Riley. To read the full case, please select the link: