Court of Appeals of Indiana | Memorandum Decision 37A03-1711-DR-2632 | January 10, 2019 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Christopher P. Phillips

Phillips Law Office, P.C.

Monticello, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeffery C. Sharp,

Appellant-Respondent,

v.

Shiela D. Scott 

(f/k/a Shiela D. Sharp),

Appellee-Petitioner.

January 10, 2019

Court of Appeals Case No.

37A03-1711-DR-2632

Appeal from the Jasper Circuit 

Court

The Honorable Rex W. Kepner, 

Special Judge

Trial Court Cause No.

37C01-1410-DR-874

Mathias, Judge.

[1] Jeffery Sharp (“Husband”) appeals the Jasper Circuit Court’s denial of his 

motion for change of judge. Concluding that Husband was not entitled to a 

change of judge, we affirm.
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Facts and Procedural History

[2] Husband’s and Shiela Sharp’s (“Wife”) marriage was dissolved in 2015. In its 

distribution of the marital assets, the trial court awarded Wife exotic wood 

owned by the parties. Upon sale of the wood, Wife was ordered to pay the 

parties’ joint tax debt. The remaining balance, if any, was to be divided 60% to 

Wife and 40% to Husband.

[3] Before their marriage was dissolved, the parties’ business, Sharp Electric, sold 

exotic wood to Bradley Crum (“Crum”) for $5,000. During the dissolution 

proceedings, the parties submitted evidence that the wood had a value of 

approximately $186,000. Tr. pp. 7–9, 39. In its order dividing the parties’ 

marital assets, the trial court found:

The above division takes into consideration the fact that the Wife 

received a gift of $90,000.00 in land value from her father that 

she used to obtain real estate for the parties. But more 

importantly, it also takes into consideration that the husband 

attempted to and perhaps did sell some of the exotic wood owned 

by the parties. It remains unclear how much of the wood is 

missing. Per the testimony of the parties, this wood has a value of 

around $200,000.00 or more. In the event the wood is missing 

and not attainable by the Wife, then all the taxes due and owing 

to both the State and Federal Government shall be paid solely by 

the Husband.

Appellant’s App. p. 10.

[4] On August 10, 2017, Wife filed a motion to enforce the court’s order 

concerning the distribution of the parties’ assets. Wife stated that Crum refused 

to allow her to take possession of the wood in his possession and that he was 
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attempting to hide or dispose of the wood. Wife also alleged that Husband 

refused to assist with obtaining the wood in Crum’s possession. On August 15, 

2017, the trial court granted Wife’s motion and ordered that 

upon presentation of the Court’s Order of October 28, 2015 to 

any law enforcement official having jurisdiction over Bradley 

Crum to render any and all assistance allowing her to obtain 

possession of all of the wood in Bradley Crum’s possession at his 

residence or any other location that he may have moved the 

wood to in order to carry out the Court’s Order of October 28, 

2015.

Appellant’s App. p. 13.

[5] Thereafter, Crum filed a motion to intervene and requested that the trial court 

enter a stay of its October 28, 2015 order dividing the parties’ marital assets and 

the August 15, 2017 order. In his motion, Crum argued that he was a bona fide 

purchaser and submitted proof of payment for the wood. Wife objected to 

Crum’s petition to intervene in the dissolution proceeding.

[6] On September 11, 2017, Husband filed a motion for automatic change of judge 

pursuant to Trial Rule 76(B). Wife objected to Husband’s motion and argued 

that the motion was not proper under Rule 76(B) because neither of the parties 

requested a modification of the dissolution decree.

[7] The trial court held a hearing on all pending motions on October 12, 2017. At 

the hearing, Crum agreed to return the wood to Wife in exchange for $5,000, 

the same amount he paid for it. The trial court reiterated that any balance 

remaining over $5,000 after the sale of the wood would be split 60/40 in favor 
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of Wife. Appellant’s App. p. 32. Husband’s motion for change of judge was 

implicitly denied as the trial court continues to rule on motions filed in the 

proceedings, including Husband’s request that the trial court stay its October 

17, 2017 order enforcing the dissolution decree.1 Husband now appeals the 

denial of his motion for change of judge.

Standard of Review

[8] Wife has not filed an appellee’s brief, and therefore, we need not undertake the 

burden of developing an argument on her behalf. See Trinity Homes, LLC v. Fang, 

848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial court’s

judgment if the appellant’s brief presents a case of prima facie error. Id. Prima 

facie error in this context is defined as, “at first sight, on first appearance, or on 

the face of it.” Id.

Discussion and Decision

[9] Pursuant to Indiana Trial Rule 76(B), in a civil action, a party is entitled to one 

change of judge. However, “[a]fter a final decree is entered in a dissolution of 

marriage case or paternity case, a party may take only one change of judge in 

connection with petitions to modify that decree, regardless of the number of 

times new petitions are filed.” Id. See also In re Marriage of Turner v. Turner, 785 

N.E.2d 259, 261 (Ind. Ct. App. 2003) (quoting Trojnar v. Trojnar, 656 N.E.2d 

287, 289–90 (Ind. Ct. App. 1995) (explaining that Trial Rule 76(B) allows for 

1 The trial court granted Husband’s motion to stay pending appeal.
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“one change of judge in connection with a dissolution proceeding prior to entry 

of a final decree ... and one change of judge in connection with proceedings to 

modify that decree.”). “Accordingly, the right to a change of judge in 

connection with a petition to modify must be viewed prospectively, inasmuch 

as that right is derived from the newly-filed petition and does not relate back to 

pending matters.” Id. at 262.

[10] On the other hand, “[t]he judge who presided at trial should rule on post-trial 

motions because ‘parties are entitled to have issues determined by the judicial 

entity hearing the evidence and observing the demeanor of the witnesses.’” Id. 

(quoting Vehslage v. Rose Acre Farms, Inc., 474 N.E.2d 1029, 1033 (Ind. Ct. App. 

1985)). This policy is memorialized in Trial Rule 63(A), which provides in 

pertinent part: 

The judge who presides at the trial of a cause or a hearing at 

which evidence is received shall, if available, hear motions and 

make all decisions and rulings required to be made by the court 

relating to the evidence and the conduct of the trial or hearing 

after the trial or hearing is concluded. 

See also Turner, 785 N.E.2d at 262 (quoting Bailey v. Sullivan, 432 N.E.2d 75, 76 

(Ind. Ct. App. 1982) (explaining that “‘[t]he principal behind Trial Rule 63 is 

obviously that a judge who has directed a trial is, if available, the best person to 

rule on post-trial motions”). In sum, a party does not have the right to file a 

change of judge motion with every type of post-decree petition. See Linton v. 

Linton, 166 Ind. App. 427, 430, 339 N.E.2d 96, 97 (1975) (holding that a party 
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was not entitled to change of judge in post-decree proceeding relative to 

contempt citation).

[11] In this case, the motion pending before the trial court was not a motion to 

modify the divorce decree. The pending matters before the court were postdecree motions to enforce distribution of the parties’ asset and a motion to 

intervene filed by Crum who had possession of and a monetary interest in the 

parties’ asset. These motions related back to issues adjudicated in the final 

decree. Moreover, the trial court did not modify its distribution of the parties’ 

asset, i.e. the exotic wood, in its October 17, 2017 order. For all of these 

reasons, we conclude that Husband was not entitled to a change of judge under 

Trial Rule 76(B), and we therefore affirm the judgment of the trial court.

[12] Affirmed.

Bailey, J., and Bradford, J., concur.