Court of Appeals of Indiana | Memorandum Decision 48A02-1604-GU-847 | December 1, 2016 Page 1 of 8

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.

ATTORNEYS FOR APPELLANT

John J. Uskert

Cynthia A. Marcus

Fishers, Indiana

ATTORNEY FOR APPELLEE

Jane G. Cotton

Anderson, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Christopher Pete,

Appellant-Defendant,

v.

Ray Forrester,

Appellee-Plaintiff

December 1, 2016

Court of Appeals Case No.

48A02-1604-GU-847

Appeal from the Madison Circuit 

Court

The Honorable Mark K. Dudley, 

Judge

The Honorable Jason Childers, 

Commissioner

Trial Court Cause No.

48C06-1603-GU-147, 48C06-1603-

GU-141

Altice, Judge.

Case Summary
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[1] Following the entry of an order appointing Ray Forrester guardian of two 

minors, K.E. and D.F., Christopher Pete filed a number of motions requesting 

the trial court to set aside Forrester’s guardianship and appoint Pete guardian 

instead. An evidentiary hearing on Pete’s motions was commenced, but the 

hearing was not concluded due to time constraints. Before the trial court had 

the opportunity to hear the remainder of the evidence and rule on Pete’s 

motions, Pete initiated this appeal.

[2] Concluding that Pete’s appeal is premature, we dismiss.

Facts & Procedural History

[3] Because the evidence in this case was not concluded and the trial court was not 

given the opportunity to issue a ruling on Pete’s motions, the facts are 

unsurprisingly in dispute. The parties, however, seem to be in agreement on 

certain key facts. Beginning in 2012, Pete was involved in a romantic 

relationship and cohabited with Charlotte Forrester (Mother) and her children 

from two previous relationships, K.E. and D.F. (the Children). Pete and 

Mother never married, and when their relationship ended in 2014, Mother 

moved in with her father, Forrester (Grandfather). The Children remained in 

Pete’s custody during the week and regularly spent weekends and holidays with 

Mother at Grandfather’s house, although the precise division of time is in 

dispute. The Children continued to see Grandfather after Mother moved out of 

Grandfather’s home in April 2015, but not as much. The parties are in 

agreement that the Children continued to reside primarily with Pete during this 
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time, but the precise amount of time the Children spent with Pete versus 

Mother versus Grandfather is unclear from the scant record. 

[4] In March of 2016, Mother executed consents to establish guardianship over the 

Children in Grandfather. Grandfather subsequently filed petitions to establish 

guardianships over the Children, in which he falsely averred that the Children 

were then residing with him.1 On March 22, 2016, the trial court awarded 

Grandfather guardianship of the Children without holding a hearing. Pete was 

not given notice of the guardianship proceedings, and he only became aware of 

the proceedings when custody of the Children was transferred to Grandfather. 

[5] Upon learning of the guardianship, Pete filed a motion to intervene in the 

guardianship proceedings and an “Emergency Motion for Temporary 

Guardianship and to Stay Guardianship Order.” Appellant’s Appendix at 29, 32. 

Shortly thereafter, Pete filed separate motions requesting that Grandfather’s 

guardianships over the Children be terminated and that Pete be appointed

guardian instead. A hearing was held on Pete’s motions on April 15, 2016, but 

the time allotted for the hearing expired before Pete was able to finish 

presenting his evidence, and Grandfather was unable to even begin his 

presentation. The trial court instructed the parties to contact court staff in order 

 

1 Grandfather and his attorney denied intentionally misleading the court with this statement. Grandfather’s 

attorney testified that his assistant mistakenly included this statement in the guardianship petition, and 

Grandfather testified that he signed the petition upon the belief that “as soon as I sign that paper” the 

Children would in fact be living with him. Transcript at 35. Because the evidence was not concluded, the 

trial court was deprived of the opportunity to make findings on this issue.
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to schedule an additional hearing to conclude the evidence, and at that time, 

Pete orally requested immediate custody of the Children pending the 

completion of the evidentiary hearing. The trial court denied Pete’s request and 

the parties agreed to continue the presentation of the evidence on May 27, 

2016. Instead of doing so, Pete filed his notice of appeal. This appeal ensued.2

Discussion & Decision

[6] As an initial matter, we note that the motions panel of this court denied 

Grandfather’s motion to dismiss this appeal on the grounds that Pete was not 

appealing from a final judgment. This does not, however, preclude us from 

reconsidering the issue. It is well established that we may reconsider a ruling of 

our motions panel, but “‘we decline to do so in the absence of clear authority 

establishing that it erred as a matter of law.'” Cincinnati Ins. Co. v. Young, 852 

N.E.2d 8, 12 (Ind. Ct. App. 2006) (quoting Oxford Fin. Group, Ltd. v. Evans, 795 

N.E.2d 1134, 1141 (Ind. Ct. App. 2003)), trans. denied. See also Miller v. Hague 

Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (explaining that 

“[w]hile we are reluctant to overrule orders decided by the motions panel, this 

court has inherent authority to reconsider any decision while an appeal remains 

in fieri”). After carefully reviewing the record, we are persuaded that this is 

such a case. 

 

2 On April 21, 2016, Pete filed a motion in this court to stay the trial court’s orders appointing Grandfather as 

the Children’s guardian. This court granted the motion on April 29, 2016. Grandfather subsequently filed a 

motion to reconsider the order granting the stay, which this court denied on May 20, 2016. 
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[7] Except as provided in Ind. Appellate Rule 4,3this court has jurisdiction in all 

appeals from final judgments. Ind. Appellate Rule 5(A); Whittington v. 

Magnante, 30 N.E.3d 767, 768 (Ind. Ct. App. 2015). “Whether an order is a 

final judgment governs the appellate courts' subject matter jurisdiction.” Front 

Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citing Georgos v. 

Jackson, 790 N.E.2d 448, 451 (Ind. 2003)). “The lack of appellate subject matter 

jurisdiction may be raised at any time, and where the parties do not raise the 

issue, this court may consider it sua sponte.” In re Estate of Botkins, 970 N.E.2d 

164, 166 (Ind. Ct. App. 2012). 

[8] A final judgment is one that “disposes of all claims as to all parties[.]” Ind. 

Appellate Rule 2(H)(1); see also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind. 

Ct. App. 2002) (explaining that a final judgment “disposes of all issues as to all 

parties, to the full extent of the court to dispose of the same, and puts an end to 

the particular case as to all of such parties and all of such issues” (quoting 

Hudson v. Tyson, 383 N.E.2d 66, 69 (Ind. 1978)). Because the evidence in this 

case was not concluded and the trial court did not rule on Pete’s motions, he is 

not appealing from a final judgment within the meaning of App. R. 2(H)(1). 

[9] In his response to Grandfather’s motion to dismiss this appeal, however, Pete 

argued that his Emergency Motion for Temporary Guardianship and to Stay 

Guardianship Order should have been treated as a Trial Rule 60(B)(3) motion 

 

3 App. R. 4 provides for appeal directly to our Supreme Court for a narrow class of cases, none of which are 

relevant here. 
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for relief from judgment due to fraud on the court based on Grandfather’s false 

representation in his guardianship petition that the Children were living with 

him. See T.R. 60(B)(3) (providing that the court may relieve a party from a 

judgment obtained by “fraud . . ., misrepresentation, or other misconduct of an 

adverse party). Pete further notes that rulings on T.R. 60(B) motions are 

deemed final and appealable. See T.R. 60(C) (providing that a judgment 

granting or denying relief under T.R. 60(B) “shall be deemed a final judgment, 

and an appeal may be taken therefrom”); App. R. 2(H)(3) (providing that a 

judgment is final “if it is deemed final under Trial Rule 60(C)).

[10] Even if we accept Pete’s argument that his Emergency Motion was in substance 

a T.R. 60(B)(3) motion for relief from judgment and should have been treated 

as such, the fact remains that Pete initiated this appeal before the evidence was 

concluded and before the trial court had the opportunity to issue a ruling 

thereon. In other words, the trial court has not yet issued “a ruling or order . . . 

denying or granting relief” under T.R. 60(B). See T.R. 60(C). To the extent 

Pete argues that the trial court’s denial of his oral motion for immediate custody 

of the Children pending the completion of the evidentiary hearing should be 

treated as a denial of relief under T.R. 60(B), we disagree. Pete essentially 

argues that that the trial court should have found that Grandfather and his 

attorney had perpetrated a fraud on the court without giving them the 

opportunity to respond or present their own evidence and argument to rebut 

Pete’s claims, but basic considerations of fairness and due process prohibited 

the court from doing so. See T.R. 60(D) (providing that in considering a T.R. 
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60(B) motion, the trial court “shall hear any pertinent evidence”); Roy A. Miller 

& Sons, Inc. v. Indus. Hardwoods Corp., 775 N.E.2d 1168, 1171 (Ind. Ct. App. 

2002) (explaining that “due process clearly requires a fair opportunity to be 

heard” and that “[a]n opportunity to be heard includes the right to present 

evidence, confront adverse witnesses, make arguments, and receive judicial 

findings based upon the evidence and arguments”). Moreover, it is apparent 

from the trial court’s oral and written rulings that Pete’s motions remained 

pending at the end of the April 15, 2015 hearing. The trial court did not deny 

Pete relief by denying his oral motion for immediate custody of the Children 

pending the conclusion of the hearing. Rather, it merely preserved the status 

quo until the court had the opportunity to hear all of the evidence necessary to 

determine whether Pete was entitled to relief on the basis that Grandfather’s 

guardianship was obtained by fraud. 

[11] For all of these reasons, we conclude that Pete’s appeal is premature. Because 

Pete does not appeal from a final judgment,

4

this court lacks subject matter 

jurisdiction to entertain this appeal and must therefore dismiss.

5

[12] Appeal dismissed.

 

4 We also note that Pete is not appealing from an interlocutory order deemed appealable pursuant to Ind. 

Appellate Rule 14.

5 Nothing in this opinion should be taken as a comment on the merits of Pete’s pending motions or the 

propriety of Grandfather’s actions with respect to obtaining guardianship of the Children. These issues 

remain for the trial court’s consideration. 
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[13] Bradford, J. and Pyle, J., concur.