Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020 Page 1 of 11

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

Michael R. Auger

Franklin, Indiana

ATTORNEYS FOR APPELLEE

Robert A. Plantz

Aaron C. Lopez

Robert A. Plantz & Associates, 

LLC

Merrillville, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Marriage of:

Joni Popejoy,

Appellant-Petitioner,

v.

David Popejoy,

Appellee-Respondent.

July 14, 2020

Court of Appeals Case No.

19A-DR-2887

Appeal from the

Pulaski Circuit Court

The Honorable 

Mary C. Welker, Judge

Trial Court Cause No.

66C01-1205-DR-29

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2887 | July 14, 2020 Page 2 of 11

[1] Joni Popejoy (“Mother”) appeals the trial court’s order modifying child 

custody, parenting time, and child support. She raises the following restated 

issues for our review:

I. Whether the trial court abused its discretion when it 

modified child custody, parenting time, and child support 

because Mother asserts that those issues were not raised to 

the trial court; and 

II. Whether the trial court abused its discretion when it 

denied Mother’s motion for a continuance of the final 

hearing.

[2] We affirm.

Facts and Procedural History

[3] Mother and David Popejoy (“Father”) were previously married and share three 

children from their marriage. Appellant’s App. Vol. II at 3, 4,7, 29. Mother and 

Father had joint custody of the children. Id. at 25. On June 1, 2018, Mother

filed a Verified Motion for Contempt Regarding Parenting Time, alleging that 

Father was withholding parenting time from Mother and had failed to pay child 

support. Id. at 22-23. On that same date, Mother also filed a Rule to Show 

Cause and Application for Temporary Emergency Removal of Children From 

Their Current Place of Residence. Appellee’s App. Vol. 2 at 2-3. Paragraph three

of that filing stated “[t]hat since the entry of this Court’s Order, there has been a

change in circumstances so substantial and continuing so as to make the current 

child custody Order not in the best interest of said minor children.” Id. at 2. In 
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paragraph five, Mother requested that the trial court “give [Mother] temporary

emergency physical and legal custody of [the children].” Id. Mother further 

asked the trial court to “give [Mother] temporary emergency custody, both 

physical and legal, of the minor children, allowing [Mother] to remove the 

children from the County of Pulaski, Indiana and take them to the County of 

Hamilton, Indiana.” Id. at 3.

[4] On June 4, 2018, Mother filed a Notice of Intent to Relocate and indicated that 

she would be moving from Pulaski County, Indiana to Noblesville, Indiana. 

Appellant’s App. Vol. II at 25. On June 20, 2018, Father filed his Objection to 

Relocation. Id. at 28. On July 6, 2018, a hearing was held on Mother’s Motion 

for Contempt, Mother’s Notice of Intent to Relocate, Mother’s Petition to 

Modify Custody, and Father’s Objection to Relocation. Id. at 29. After the 

hearing, the trial court issued an order on August 16, 2018, appointing a 

guardian ad litem to investigate the issues of custody and parenting time and 

approving the parties’ Temporary Agreement regarding parenting time. Id. at 

29-30. 

[5] On December 17, 2018, a telephonic pretrial conference was held, and the 

matter was set for a custody hearing on April 11, 2019. Id. at 12. On April 4, 

2019, Mother filed a Motion to Continue the April 11, 2019 custody hearing, 

specifically requesting that the trial court “continue this matter for a [c]ustody 

[h]earing on a time and date in which both parties and this Court can agree.” 

Id. at 33. The trial court set the matter for a telephonic pretrial conference on 

April 5, 2019, and at that hearing, Mother’s Motion to Continue was denied 
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and Mother’s counsel notified the trial court that he would be filing a Motion to 

Withdraw. Id. at 14. On that same date, counsel for Mother filed his Motion 

to Withdraw, and the motion was granted by the trial court on April 8, 2019. 

Id. at 34, 35.

[6] On April 11, 2019, the parties appeared for the custody hearing. Tr. Vol. 2 at 

16-17. At the beginning of the hearing, Mother, who was representing herself, 

requested a continuance to “seek legal counsel” because she claimed she was 

unaware of the law and felt like she needed an attorney to proceed. Id. at 17. 

After some argument from the parties, the trial court denied Mother’s request

for a continuance, maintaining that she had already gone through three 

attorneys and that the reason her attorney was forced to withdraw was because 

of Mother’s own actions and specifically stating that “based on the information

I have, the reason for the loss of an attorney is of your own doing, ma’am.” Id. 

at 39. The trial court also determined that if it continued the hearing, there

would be no time available until August 2019, and the trial court did not believe 

that it would be fair for the children to wait that long for a resolution. Id. 

[7] During the hearing, evidence was heard concerning the issues of custody, 

parenting time, and child support. At no time did Mother object to litigating 

these issues or claim that she had not received notice that these issues would be 

addressed at the hearing. Id. at 16-141. At the conclusion of the hearing, the 

trial court took the issues of permanent custody, parenting time, and child 

support under advisement. Appellant’s App. Vol. II at 38. On November 12, 

2019, the trial court issued its order, awarding custody of the three children to 
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Father, ordering parenting time in accordance with the Indiana Parenting Time 

Guidelines, and child support in accordance with the attached Child Support 

Worksheet. Id. at 18-21. Mother now appeals. 

Discussion and Decision

I. Modification 

[8] “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.’” 

Hecht v. Hecht, 142 N.E.3d 1022, 1028 (Ind. Ct. App. 2020) (quoting Werner v. 

Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011), trans. denied). We also 

review a trial court’s decision to modify child support and parenting time only 

for an abuse of discretion. Moell v. Moell, 84 N.E.3d 741, 744-45 (Ind. Ct. App. 

2017); Hooker v. Hooker, 15 N.E.3d 1103, 1105 (Ind. Ct. App. 2014). This is 

because it is the trial court that observes the parties’ conduct and demeanor and 

hears their testimony firsthand. Hecht, 142 N.E.3d at 1029. We will not 

reweigh the evidence or judge the credibility of the witnesses. Id. Rather, we 

will reverse the trial court’s custody determination only if the decision is 

“clearly against the logic and effect of the facts and circumstances or the 

reasonable inferences drawn therefrom.” Id. 

[9] Mother argues that the trial court abused its discretion when it issued its order 

modifying child custody, parenting time, and child support. She asserts that 

these modifications were in error because neither party raised these 

modification issues before the trial court. She contends that neither her Notice 
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of Intent to Relocate nor Father’s Objection to Relocation expressed any 

request to modify custody or parenting time, and therefore, the trial court’s 

modifications of custody, parenting time, and child support were erroneous as a 

matter of law. 

[10] In this case, the underlying issue is Mother’s intent to relocate. When a parent 

intends to relocate, that parent must file a specific notice with the trial court that 

issued the original custody and parenting time order and serve notice to the 

non-relocating parent. Ind. Code § 31-17-2.2-1(a); Ind. Code § 31-17-2.2-3. 

The nonrelocating parent must then file a response either consenting to the 

relocation or objecting to the relocation. Ind. Code § 31-17-2.2-5. The trial

court may grant a temporary order restraining the relocation of the children 

until the matter can be presented at a final hearing. Ind. Code § 31-17-2.2-6. 

[11] Here, on June 1, 2018, Mother filed her Rule to Show Cause and Application 

for Temporary Emergency Removal of Children From Their Current Place of 

Residence. Appellee’s App. Vol. 2 at 2-3. Paragraph three of this pleading stated

“[t]hat since the entry of this Court’s Order, there has been a change in 

circumstances so substantial and continuing so as to make the current child 

custody Order not in the best interest of said minor children.” Id. at 2. 

Paragraph five requested that the trial court “give [Mother] temporary 

emergency physical and legal custody of [the children].” Id. Mother further 

requested the trial court to “give [Mother] temporary emergency custody, both 

physical and legal, of the minor children, allowing [Mother] to remove the 

children from the County of Pulaski, Indiana and take them to the County of 
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Hamilton, Indiana.” Id. at 3. Therefore, from this pleading, it is clear that

Mother was seeking an award of full custody to herself so that she could

relocate with the children to Hamilton County, which is a substantial distance 

away from Pulaski County.

[12] On July 6, 2018, a hearing was held on Mother’s Motion for Contempt, 

Mother’s Notice of Intent to Relocate, Mother’s Petition to Modify Custody, 

and Father’s Objection to Relocation. Appellant’s App. Vol. II at 29. After the 

hearing, the trial court issued an order on August 16, 2018, appointing a 

guardian ad litem to investigate the issues of custody and parenting time, and 

approving the parties’ Temporary Agreement regarding parenting time. Id. at 

29-30. On December 17, 2018, a telephonic pretrial conference was held, and 

the matter was set for a custody hearing on April 11, 2019. Id. at 12. On April 

4, 2019, Mother, filed a Motion to Continue the April 11 custody hearing, 

specifically requesting that the trial court “continue this matter for a [c]ustody 

[h]earing on a time and date in which both parties and this Court can agree.” 

Id. at 33. The trial court set the matter for a telephonic pretrial conference on 

April 5, 2019, and at that hearing, Mother’s Motion to Continue was denied 

and Mother’s counsel notified the trial court that he would be filing a Motion to 

Withdraw. Id. at 14. The matter then proceeded to the custody hearing on 

April 11, 2019, where Mother appeared without representation and did not 

object to the issue of custody being litigated at that hearing. 

[13] From our review of the record, it is clear that Mother raised the issue of custody 

modification in her June 1, 2018 pleading and that she was aware that custody 
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was at issue in light of the facts that, in August 2018, a guardian ad litem was 

ordered to be appointed to investigate the issues of custody and parenting time

and that, on December 17, 2018, the matter was set for a custody hearing to be 

held on April 11, 2019. Based on the foregoing, it is clear that Mother was on 

notice that the matter was set for a custody hearing on April 11, 2019, and that 

the issue of custody would be litigated at that hearing, particularly in light of the 

fact that she had raised the issue in her June 1, 2018 pleading. At no time prior 

to this appeal did Mother object to custody being at issue or to the trial court 

issuing an order on the modification issues after a final custody hearing. We, 

therefore, conclude that Mother was aware that custody was at issue in the 

proceedings in this matter and cannot now object to the issue being resolved by 

the trial court. The trial court did not abuse its discretion when it modified 

child custody, parenting time, and child support. 

II. Continuance

[14] The decision to grant or deny a motion for a continuance is within the sound 

discretion of the trial court, and we will reverse the trial court only for an abuse 

of that discretion. Smith v. Smith, 136 N.E.3d 656, 658 (Ind. Ct. App. 2019).

“An abuse of discretion may be found on the denial of a motion for a 

continuance when the moving party has shown good cause for granting the 

motion.” Id. at 658-59. An abuse of discretion will be found when a trial court

reaches a conclusion which is clearly against the logic and effect of the facts or 

the reasonable and probable deductions which may be drawn therefrom. Id. at 
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659. No abuse of discretion will be found when the moving party has not 

shown that she was prejudiced by the denial. Id. 

[15] Mother contends that the trial court abused its discretion when it denied her 

motion to continue the custody hearing to give her time to obtain counsel. She 

argues that, in denying her request, the trial court deprived her of counsel at a 

crucial stage of the proceedings, which was prejudicial to her. Mother further 

asserts that it was an abuse of discretion for the trial court to deny her request 

because a continuance would not have been prejudicial to Father as nothing in 

the parties’ circumstances would have changed, and Father would have 

maintained temporary custody of the children pending a new hearing date. 

[16] On April 5, 2019, counsel for Mother filed his Motion to Withdraw, and the 

motion was granted by the trial court on April 8, 2019. Appellant’s App. Vol. II

at 34, 35. On April 11, 2019, at the beginning of the custody hearing, Mother, 

who was representing herself, requested a continuance to “seek legal counsel” 

because she claimed she was unaware of the law and felt like she needed an 

attorney to proceed. Tr. Vol. 2 at 17. After argument from the parties, the trial 

court denied Mother’s request for a continuance, maintaining that Mother had 

already gone through three attorneys and that the reason her last attorney was 

forced to withdraw was because of Mother’s own actions, specifically stating 

that “based on the information I have, the reason for the loss of an attorney is 

of your own doing, ma’am.” Id. at 39. The trial court further determined that 

if it continued the hearing, there would be no time available for a hearing until 
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August 2019, and the trial court did not believe that it would be fair for the 

children to wait that long for a resolution of the issues. Id. 

[17] The withdrawal of counsel does not entitle a party to an automatic 

continuance. Hamilton v. State, 864 N.E.2d 1104, 1109 (Ind. Ct. App. 2007) 

(citing Danner v. Danner, 573 N.E.2d 934, 937 (Ind. Ct. App. 1991), trans. 

denied). The party seeking a continuance must show that he or she is free from 

fault. In re B.H., 44 N.E.3d 745, 748 (Ind. Ct. App. 2015) (citing Danner, 573 

N.E.2d at 937), trans. denied. 

[18] Here, Mother cannot show that she is free from fault. In fact, the fault for 

Mother’s attorney withdrawing and leaving her without representation on the 

date of the custody hearing resulted from Mother’s own conduct. In denying 

Mother’s request for a continuance, the trial court found that Mother had 

already had three attorneys over the course of the proceedings. Tr. Vol. 2 at 39. 

Further, the trial court stated, “based on the information I have, the reason for 

the loss of an attorney is of your own doing, ma’am.” Id. When advising the 

trial court that he planned to withdraw, Mother’s attorney had indicated that, 

as a matter of ethics, he was forced to withdraw due to misrepresentations 

made to him by Mother. Id. at 19. Mother was thus attempting to seek a 

continuance to obtain a new attorney when it was through her own fault that 

her prior attorney had withdrawn. Although Mother alleges that she was 

prejudiced by the denial of her request for a continuance, she cannot show that 

she was free from fault for the withdrawal of her counsel, which was what 
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necessitated her request. We conclude that the trial court did not abuse its 

discretion in denying Mother’s request for a continuance. 

[19] Further, the issues of custody, parenting time, and child support had been 

pending since June 2018 when Mother filed her Notice of Intent to Relocate 

and associated pleadings requesting modification. Therefore, at the time of the 

custody hearing on April 11, 2019, the matters had been pending for close to 

one year. The trial court advised the parties that if a continuance was granted, 

the hearing would have to be postponed until August 2019, which would be

fourteen months after the original pleadings were filed. Tr. Vol. 2 at 39. Thus, 

it was in the best interest of the parties and particularly the children to conduct 

the custody hearing in April to ensure that the matters could be resolved sooner 

as opposed to having a custody hearing in August, the same month that school 

was set to begin for the children, especially if the trial court had determined that 

the children could relocate with Mother. Based on this, we cannot conclude 

that the trial court’s decision to deny Mother’s request for a continuance was 

clearly against the logic and effect of the facts or the reasonable and probable 

deductions which may be drawn therefrom. See Smith, 136 N.E.3d at 658. 

Therefore, the trial court did not abuse its discretion. 

[20] Affirmed. 

Najam, J., and Brown, J., concur.