Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018 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.

ATTORNEYS FOR APPELLANT

Christina Miller

Andrew P. Martin

Kristin Valdivia

Sachs & Hess, PC

St. John, Indiana

ATTORNEY FOR APPELLEE

Amy Noe Dudas

Richmond, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of 

E.M.S.,

Angela Marie Goodson,

Appellant-Respondent,

v.

Jason Wyatt Schmittler,

Appellee-Petitioner.

July 10, 2018

Court of Appeals Case No.

18A-JP-403

Appeal from the Wayne Circuit

Court

The Honorable David A. Kolger,

Judge

Trial Court Cause No.

89C01-1608-JP-112

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018 Page 2 of 11

Case Summary

[1] Angela Goodson (“Mother”) and Jason Schmittler (“Father”) are the parents of 

E.M.S. (“the Child”). On January 19, 2018, the juvenile court awarded full 

legal and physical custody of the Child to Father. Mother challenges the 

custody determination on appeal, arguing that the juvenile court abused its 

discretion by excluding the testimony of certain character witnesses. We 

affirm.

Facts and Procedural History

[2] Father and Mother began dating in February of 2014. They are the parents of 

the Child, who was born on December 24, 2014. Although they never lived 

together, after the Child’s birth, Mother and Father spent frequent time together 

with the Child. At some point, however, Mother’s and Father’s relationship 

failed. 

[3] On August 24, 2016, Father filed a petition to adjudicate paternity and for a 

determination regarding custody and child support. According to the terms of a 

provisional order entered by the juvenile court, Mother and Father began 

sharing provisional physical custody of the Child in February of 2017. The 

juvenile court conducted a two-day evidentiary hearing on Father’s petition on 

December 4, 2017 and January 18, 2018. At the beginning of the evidentiary 

hearing, Father’s counsel moved for a separation of witnesses. The juvenile 
Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018 Page 3 of 11

court granted Father’s motion and instructed counsel “to advise their clients 

and witnesses accordingly.” Tr. Vol. II, p. 4. 

[4] During the cross-examination of Kim Syler, a witness for Mother, it came to 

the juvenile court’s attention that some of Mother’s witnesses had engaged in 

numerous conversations regarding the case while they waited together in a 

hallway outside the courtroom. Specifically, Syler indicated that she had 

overheard Mother’s parents discussing certain aspects of the case. The juvenile 

court decided “to bring [the witnesses] in one by one and find out if they’ve 

talked to each other about the case.” Tr. Vol. II, pp. 207–08. When asked 

“[h]ow many times, if any, was the case discussed ... while [the witnesses] were 

waiting to testify,” Racine Kovach stated “I would say numerous. I can’t really 

put a number.” Tr. Vol. II, p. 209. Likewise, Sarah Otte testified that she 

participated in conversations regarding the case with Syler, Mother’s parents, 

Kovach, and John Minear. 

[5] After learning of these conversations, Father moved to strike the testimony of 

Minear and Syler and to preclude Otte, Mother’s parents, and Kovach from 

testifying. Finding that the conversations at issue violated the separation order, 

the juvenile court granted Father’s motion. Afterwards, the following exchange 

occurred:

THE COURT: ... The Court granted Father’s motion ... and 

it’s my understanding, [Mother’s Counsel], I’m not trying to 

devalue or belittle what they were going to say, but they were -

they were going to basically be character witnesses, is that 

correct?
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[MOTHER’S COUNSEL]: Character witnesses, also they 

would also have some - some testimony regarding ... the

relationship between the parties.

****

THE COURT: Okay.... I’m not really interested in hearing 

character witness testimony from people who were sitting out in 

the hall talking about character witness testimony all morning, 

but if one of them would say something that was directly, like, 

had witnessed a violent act or something like that and they were 

going to say something like that, that would be different in my 

mind, ... if somebody was a witness to an act that’s a make or 

break type situation, I might want to hear that, but that’s not 

what I’m going to hear, is that a fair statement?

[MOTHER’S COUNSEL]: I don’t - I don’t think that’s what 

you were going to hear, Your Honor.

Tr. Vol. III, pp. 3–4. 

[6] At the close of Father’s evidence, Mother requested that the juvenile court 

reconsider its prior ruling as it applied to her parents. With regard to Mother’s 

request, the following exchange occurred:

THE COURT: Okay. Father moved for the separation at the 

very beginning of the first day of this trial.... I advised both 

lawyers to advise their clients and their witnesses that there was a 

separation order in place so that they wouldn’t violate it and you 

didn’t do it, correct, [Mother’s Counsel]?

[MOTHER’S COUNSEL]: I advised - I advised the parties –
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****

THE COURT: And unfortunately for everybody they apparently 

didn’t heed your advice, correct?

[MOTHER’S COUNSEL]: That’s what we heard.

THE COURT: Well, we heard that they sat out there for hours 

and discussed their testimony - their upcoming testimony among 

themselves.

[MOTHER’S COUNSEL]: Yes, Your Honor. 

THE COURT: Which was in clear violation of this Court’s

order, that’s why I struck the testimony ... and told you that you 

couldn’t call them. So I just want the record to reflect that ... 

they clearly violated a court order so ... why would I back up and 

let them testify now?

[MOTHER’S COUNSEL]: Your Honor, the - the parents would 

... be testifying simply about what they witnessed during the 

course of this relationship when [Father] has testified that he was 

in their home, he spent time with them, so it - it - it would be 

entirely - entirely distinct from anything that any of those other 

witnesses would have had to discuss.

THE COURT: So if they acknowledge on the stand that they 

discussed any of the things that they’re testifying about, I can 

strike that or - or if I feel like I can strike it all - you see where I’m 

coming from? I don’t know how you can make the statement 

you just made without ... knowing what they’re going to say. 

[Father’s Counsel], what’s - what’s your position?
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[FATHER’S COUNSEL]: Your Honor, we heard testimony 

from Kim Syler, who is a friend of Mother’s, and whose children 

have played with [the Child] and during her cross examination, 

she just threw out there that, you know, she had heard about 

something from [Mother’s] parents while she was sitting out in 

the hallway which started this whole conversation. She then 

acknowledged on the record that she was engaged in a long 

conversation with both [of Mother’s parents]. We then brought 

in Racine Kovach, who testified that they had all been seated 

together to include [Mother’s parents] and the question was 

specifically asked how many time[s], if any, was the case 

discussed among all of them while waiting to testify and the 

answer was numerous. And - and at that point, you struck a 

prior witness, Mr. Minear, who had been sitting with them, you 

struck Kim Syler’s testimony, you struck Racine Kovach, Sarah 

Otte and [Mother’s parents] and I don’t see how we can possibly 

know whether or not [Mother’s parents] will be truthful about 

whether or not they discussed X, Y or Z when they’re in here 

today and ... I think the Court order meant what it meant and 

the order striking those witnesses should - should remain.

THE COURT: Yeah. How do I put the [genie] back in the 

bottle, [Mother’s Counsel]? How do I know they’re not violating 

the order every time they speak?

[MOTHER’S COUNSEL]: Your Honor, I - I don’t know that 

the Court can know that. Again, all I can - all I can proffer to the 

Court is that they would have unique knowledge of facts in this 

case that none of the other witnesses would have had and it 

would be a relatively short, limited examination.... I was not out 

there, so I don’t know what was discussed, Your Honor.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018 Page 7 of 11

Tr. Vol. III, pp. 89–93. Following this exchange, the juvenile court rejected 

Mother’s request to amend its prior ruling. On January 19, 2018, the juvenile 

awarded full legal and physical custody of the Child to Father.

Discussion and Decision

[7] Mother contends that the trial court abused its discretion by striking the 

testimony of Syler and Minear and excluding the testimony of Otte, Kovach, 

and her parents. Indiana Evidence Rule 615 provides that “[a]t a party’s 

request, the court must order witnesses excluded so that they cannot hear other 

witnesses’ testimony.” “The primary purpose of a separation of witnesses order 

is to prevent them from gaining knowledge from the testimony of other 

witnesses and adjusting their testimony accordingly.” Roser v. Silvers, 698 

N.E.2d 860, 865 (Ind. Ct. App. 1998). 

The determination of the remedy for any violation of a 

separation order is wholly within the discretion of the trial court. 

Even when it is confronted with a clear violation, the trial court 

may choose to allow the violating witness to testify at trial. We

will not disturb a trial court’s decision on such matters absent a 

showing of a clear abuse of discretion.

Jordan v. State, 656 N.E.2d 816, 818 (Ind. 1995) (internal citations omitted). An 

abuse of discretion “occurs where the trial court’s decision is clearly against the 

logic and effect of the facts and circumstances before it, or when the court errs 

on a matter of law.” Cmty. Health Network v. Bails, 53 N.E.3d 450, 453 (Ind. Ct. 

App. 2016).
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[8] In this case, the witnesses at issue, all of whom intended to provide testimony 

relating to Mother’s character, engaged in numerous discussions about the case, 

Mother’s character, and their future testimony while waiting together outside of 

the court room. In doing so, the witnesses disregarded the juvenile court’s 

instruction not to discuss anything relating to the testimony they planned to 

give with any other witness. Mother’s counsel indicated that he had informed 

each of the witnesses of the juvenile court’s order, leading one to assume that 

their violations were both knowing and deliberate. 

[9] We are unconvinced by Mother’s somewhat perplexing assertion that there was 

no violation of the juvenile court’s order because the conversations at issue 

were focused on the witnesses’ upcoming testimony rather than testimony they 

had already given before the court.1 The witnesses knew that they were going 

to be called to testify on Mother’s behalf and that they had been instructed not 

to discuss their testimony, future or previously given, with any other witness. 

Nevertheless, they chose to discuss their testimony and other matters relating to 

the case with each other while they waited to testify.

[10] Further, to the extent that Mother claims that the juvenile court could not 

exclude the testimony at issue because she was not at fault for the violation, we 

disagree and note that Indiana Supreme Court precedent merely states that a 

 

1

 We are also unconvinced by Mother’s reliance on her claim that courts in Kentucky have allegedly adopted 

this view. Even if Mother’s characterization of the Kentucky case law is accurate, decisions made by courts 

in Kentucky are not binding on us. 
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court may allow testimony when the party is not at fault, not that it must do so. 

See generally, Heck v. State, 552 N.E.2d 446, 452 (Ind. 1990) (providing that 

“[w]here there has been a violation of a separation order, the trial court, in the 

absence of connivance or collusion by the party calling the witness, may permit 

the witness to testify”). We are also unconvinced by Mother’s reliance on the 

Indiana Supreme Court’s decision in Jiosa v. State, 755 N.E.2d 605 (Ind. 2001) 

because the facts of Jiosa are easily distinguishable from the facts of the instant 

case. Unlike in the present case, the witness at issue in Jiosa was not at fault for 

the violation of the separation order. 755 N.E.2d at 607. The witness was in a 

place that she “had every right to be” when she inadvertently overheard a 

conversation between two individuals who had been observing the proceedings. 

Id. The witness did not seek out information or participate in any conversation 

about the trial. Id. 

[11] The witnesses at issue in this case knowingly and blatantly violated the 

separation order when they actively participated in numerous conversations 

about both the case and the testimony they planned to give. Given the record 

before us, we conclude that the violation of the juvenile court’s order strikes to 

the heart of the rule providing for the separation of witnesses as it not only 

allowed the witnesses to gain knowledge of the circumstances surrounding the 

case and the substance of the testimony of other witnesses, but also allowed the 

witnesses to adjust their testimony accordingly. As such, we cannot say that 

the juvenile court abused its discretion in excluding the testimony of the 

witnesses who participated in the violation of its order.
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[12] The judgment of the juvenile court is affirmed.

Kirsch, J., concurs.

Baker, J, concurs with opinion. 
Court of Appeals of Indiana | Memorandum Decision 18A-JP-403 | July 10, 2018 Page 11 of 11

I N T H E

COURT OF APPEALS OF INDIANA

In the matter of the Paternity of 

E.M.S.,

Angela Marie Goodson,

Appellant-Respondent,

v.

Jason Wyatt Schmittler,

Appellee-Petitioner.

Court of Appeals Case No.

18A-JP-403

Baker, Judge, concurring.

[13] I fully concur with the majority opinion. I write separately to note that Mother 

did not make an offer to prove regarding the content of the testimony of the 

character witnesses, had they been permitted to testify. Without knowing what 

the witnesses would have testified, we have no way of discerning whether their 

exclusion resulted in any prejudice to Mother. Therefore, even if we had found 

error, we would have deemed it to be harmless. I strongly encourage attorneys 

to make offers to prove in these situations.