Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 1 of 27

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

Carl Paul Lamb

Carl Lamb & Associates

Bloomington, Indiana

ATTORNEY FOR APPELLEE

Lisa M. Joachim

Richard A. Mann, P.C.

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Rahlina D. Funk,

Appellant-Respondent,

v.

Raymond A. Funk,

Appellee-Petitioner.

August 5, 2016

Court of Appeals Case No.

55A01-1512-DR-2223

Appeal from the Morgan Superior 

Court

The Honorable Peter R. Foley, Judge

Cause No. 55D01-1103-DR-546

Bradford, Judge.

Case Summary

[1] Appellant-Respondent Rahlina D. Funk (“Mother”) and Appellee-Petitioner 

Raymond A. Funk (“Father”) were married in 2003. Mother and Father’s first 

child S.F. was born in 2006. In late 2010, Mother, who was pregnant, left for 
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Florida with S.F. and communicated to Father, eventually, that she would not 

return. In March of 2011, Mother requested and received a temporary 

restraining order from the 9th Circuit Court of Osceola County, Florida (“the 

Florida Court”). Later that month, Father filed a dissolution petition in the 

trial court. The couple’s second child C.F. was born in June of 2011. 

[2] In July of 2012, after Mother had failed to comply with several orders to return 

the children to Indiana, the trial court ordered that Father’s mother, Donna 

Funk, be awarded custody of the children. Donna has never taken custody of 

the children. Also in July of 2012, the trial court issued a writ of bodily 

attachment for Mother and the State charged Mother with two counts of Class 

D felony interference with a custody order. Later in 2012, Mother’s motion to 

cede jurisdiction over the custody issue to the Florida Court was denied, a 

denial she attempted to appeal as a discretionary interlocutory appeal. This 

court declined to assume jurisdiction over the interlocutory appeal. Mother 

then sought a writ of mandamus from the Indiana Supreme Court, which 

petition was denied. 

[3] In September of 2013, the Florida Court ceded jurisdiction over the custody 

issue to the trial court. In August of 2015, the trial court held a final hearing on 

Father’s dissolution petition, which hearing Mother did not attend. In 

November of 2015, the trial court issued its dissolution decree in which, inter 

alia, it dissolved Father and Mother’s marriage and awarded full physical and 

legal custody of S.F. and C.F. (collectively, “the Children”) to Father. The 

following issues are presented for appellate consideration:
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I. whether the res judicata and/or law-of-the-case doctrines 

bar consideration of the issue of jurisdiction; 

II. whether the trial court erred in failing to give full faith and 

credit to the Florida Court’s “initial custody order” before 

that court ceded jurisdiction to the trial court; 

III. whether the trial court erred in granting Donna custody of 

the Children in 2012; and 

IV. whether the trial court erred in awarding sole custody of 

the Children to Father. 

Because we reject all of the above arguments, we affirm. 

Facts and Procedural History

[4] Most of the facts relevant to this appeal were related by the trial court in its 

decree of dissolution, issued on November 18, 2015: 

I. FINDINGS OF FACT

1. Father filed his Petition for Dissolution of Marriage on 

March 16, 2011.

2. Father and Mother were married on May 14, 2003.

3. Father lived in the State of Indiana and Morgan County 

for the six (6) months immediately preceding the filing of his 

Petition and this Court has jurisdiction over the matter pursuant 

to I.C. 31-15-2-6.

4. There are two (2) minor children born of this marriage, 

namely: [S.F.] (DOB: 11/28/2006) and [C.F.] (DOB: 

06/09/2011).

5. There has been an irretrievable breakdown of the marriage 

such that the marriage should be dissolved.

6. At the time of the final hearing in this matter, Mother is 

not known to be pregnant.
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7. The Court takes judicial notice of the pleadings and filings 

in the matter of State of Indiana v. Rahlina D. Funk, Cause 

Number 55D03-1312-FD-001640, currently pending in the 

Morgan Superior Court 3.

8. The Court takes judicial notice of the Court’s file, the prior 

testimony at all previous hearings in this matter, and the Court’s 

own orders.

A. Procedural History

9. This Court conducted a preliminary hearing in this matter 

on August 22, 2011, and scheduled the matter for a further 

preliminary hearing. At the August 22, 2011 hearing the Court 

ordered that Father could have parenting time with the children 

at the Martinsville City Park on that afternoon.

10. The Court next held a hearing on December 13, 2011. 

Over the objections of Mother, the Court ordered Father to have 

Skype and telephonic communication with the children three (3) 

days a week.

11. On March 6, 2012 the preliminary hearing was completed 

and the Court issued its Preliminary Order on March 7, 2012.

12. The Court’s Preliminary Order awarded legal and physical 

custody of the children to Mother and Father was granted several 

weeks of unsupervised parenting time with the children to occur 

at paternal grandmother’s home. Father’s parenting time 

included one (1) week at spring break, the first two (2) weeks of 

summer break, one (1) week at fall break, and one (1) week the 

week before Christmas.

13. Between the Preliminary Hearing and the next hearing 

before the Court on July 27, 2012, the parties filed several 

motions with the Court.

14. On June 12, 2012, the Court issued an order, among other 

things, requiring Mother to bring the children to the State of 

Indiana within 14 days of the order. On June 28, 2012, Father 

filed his Verified Petition for Permanent Injunction, For 

Temporary Restraining Order, and for Emergency Petition For 
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Modification of Custody. On July 2, 2012, the Court issued an 

order setting Father’s Verified Petition for hearing.

15. The next hearing was conducted on July 27, 2012. Mother 

and Father appeared at the hearing with their respective 

attorneys. The Court found that there had been a substantial 

change in circumstances since the Preliminary Hearing and 

awarded custody of the minor children to Father’s mother, 

Donna Funk (“Donna”). The Court found that Mother had 

failed to abide by the Court’s many orders to bring the children to 

Indiana and had prevented Father from having parenting time 

with the children. The Court ordered that the children be 

enrolled at schools in Indiana, that Mother and Father have full 

psychological evaluations, that the children be evaluated by Dr. 

Jason Warner, Ph.D., LMFT, LMHC, and that Donna be 

entitled to travel to Florida to pick the children up and return 

them to Indiana.

16. On August 10, 2012, based upon Mother’s failure to 

cooperate with the Court’s prior orders, the Court issued a Writ 

of Attachment.

17. Mother had filed an action for a civil order of protection 

and custody in the 9th Circuit Court, Osceola County, Florida, 

Cause No. 2011-DR-1043. On August 10, 2012, this Court 

issued an order reciting that [the previous judge on this case] had 

spoken with Judge Arnold of the Osceola Court and they had 

concurred that Indiana would retain jurisdiction in this matter.

18. The Court next conducted a hearing on the jurisdictional 

issues only on October 5, 2012. Mother did not appear at the 

hearing, appearing by counsel only. The Court denied Mother’s 

request to cede jurisdiction of the custody issue to the Florida 

Court.

19. Mother then filed a request to certify certain orders for 

interlocutory appeal, which request was granted by the Court. 

Mother filed her Notice of Appeal on November 26, 2012. On 

April 5, 2013, the Court of Appeals issued an Order in Cause 

55A01-1209-DR-428 dismissing Mother’s appeal with prejudice.
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21.[1] Mother then filed an original action of mandamus with the 

Indiana Supreme Court. That action was dismissed by the 

Indiana Supreme Court, Cause No. 55S00-l309-OR-627, on 

October 1, 2013.

22. On September 26, 2013, Judge Arnold issued an order in 

the Florida litigation that relinquished and ceded jurisdiction 

over all issues stemming from the parties’ marital relationship 

and divorce to The State of Indiana, including without limitation 

the issues of child custody, visitation time-sharing and support. 

23. Numerous other motions were filed by both parties.

24. Final Hearing was conducted on August 25, 2015. Each 

party had filed a request for findings of fact and conclusions of 

law pursuant to Trial Rule 52(A). The Court granted the parties 

to and including September 25, 2015 to file their proposed 

findings of facts and conclusions of law. 

B. Findings of Fact

25. Father resides in Indianapolis with his mother, Donna 

Funk. Father currently is a student at Ivy Tech and works part 

time at the Ivy Tech library. Father began taking classes in the 

fall of 2014 and began working at the library in March 2015. 

Father is 38 years old and has a valid driver’s license.

25. Father and Donna reside in a three (3) bedroom home that 

is owned by Donna.

26. Father has resided with Donna since Spring 2012.

27. Father has no children other than [S.F.] and [C.F.]. 

Father last saw his children on a spring break visit in March, 

2012, last had telephone communication with them in August 

2012, and last had Skype communication with them in 

July/August 2012.

 

1

 There is no paragraph 20 in the trial court’s decree of dissolution. 
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28. Since 2011 Father has made significant changes in his life. 

He has lost weight, approximately 100 pounds, and is healthier 

physically and mentally. In 2011 Father began receiving Social 

Security Disability. Father’s disability ended in 2014 and he no 

longer receives any benefits.

29. Father suffered a traumatic brain injury (TBI) in a workrelated accident in 2003. Father suffered many symptoms as a 

result of the injury, including some mental health issues.

30. Father sought treatment for his mental health issues at 

Centerstone and was under the care of his psychologist, Mr. 

Tabaki, and his psychiatrist, Dr. Leach. Father admits he was 

“pretty messed up” in 2012, but indicates he is now healthy and 

not experiencing any symptoms. Father completed his treatment 

with Centerstone at the end of 2012.

31. Father is no longer prescribed medication. He last took 

Celexa and Cymbalta in 2013.

32. Father has not had a seizure or experienced dizziness for a 

year and a half, each of which were side effects of his medication 

at the time. Father has been off of his seizure medications since 

March 2014. Father has been released by Dr. Glander and Dr. 

McMahon but would seek routine care and follow any 

recommendations of doctors.

33. Even though Mother has repeatedly accused Father of 

incidents of domestic violence during their marriage, the Court 

cannot conclude that Father did engage in domestic violence or 

that Father presents a current threat to the health, safety, and 

welfare of the minor children. Father’s life appears to be 

structured and free from the chaos present during the marriage or 

at the initiation of this action.

34. Father’s sister, Leslie Fergerson, lives near Father and had 

Father babysit her six (6) year old child on a consistent basis. 

Ms. Fergerson has no concerns about Father’s conduct or 

behavior around her child and trusts Father to care for her child.
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35. Mother moved to Florida in early 2011 and has continued 

to reside in Florida with the minor children. Mother’s current 

living situation is unknown. Mother’s address is unknown and it 

is not known if Mother works or how Mother supports herself. 

36. Mother has refused to cooperate with the legal process. 

Mother last attended a hearing in this matter on July 27, 2012. 

There is an active writ of attachment against Mother in this case. 

In addition, on July 27, 2012, Mother was charged criminally 

with two (2) counts of interference with a custody order, as Class 

D Felonies, in the matter of State of Indiana v. Rahlina Funk, 

55D03-1312-FD-1640. A warrant was issued for the arrest of 

Mother. The warrant remains unserved and Mother has failed to 

personally appear for any proceedings in the criminal matter. 

Mother remains a fugitive from justice.

37. Mother was aware that the Florida Court relinquished and 

ceded jurisdiction to this Court as of September 26, 2013, yet 

Mother has continued to remain a fugitive from justice, has failed 

to appear at hearings, has failed to cooperate with discovery, and 

has failed to comply with this Court’s orders.

38. Mother’s actions have prevented the Court from 

considering Mother’s present circumstances in its ruling. The 

Court must rely upon Mother’s prior testimony at hearings and 

Father’s testimony.

39. Mother moved to Florida with [S.F.] in early 2011, while 

pregnant with [C.F.]. Upon moving to Florida Mother filed a 

civil action for an ex parte civil order of protection against 

Father, alleging prior domestic violence by Father. Mother’s 

request was granted and Father appeared at a subsequent hearing 

in Florida and then agreed to conditions and restrictions 

concerning custody and parenting time. 

40. After Mother received an adverse ruling in the Preliminary 

Order on March 7, 2012, Mother has continually engaged in a 

course of conduct to prevent Father from seeing his children. 

Mother failed to cooperate with any of the subsequent court 

orders providing Father parenting time or modifying custody to 
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Donna Funk. Mother foiled Donna Funk’s attempts to locate 

her and the children in order to carry out the provisions of the 

Court’s July 27, 2012 order. Donna Funk attempted to locate 

Mother and sought the assistance of local law enforcement and 

the FBI in Florida, all to no avail. Mother’s actions have been 

intentional and the resulting estrangement of Father from his 

children has been detrimental to the emotional needs of the 

children. The Court must conclude that Mother’s actions have 

been harmful to the minor children.

41. Mother has a history of mental illness in her family and a 

history of drug abuse. Mother frequently used marijuana up until 

the time she left for Florida. Mother has had a tumultuous 

relationship with her parents. At age 19 Mother attempted 

suicide and has been suicidal on and off during the parties’

marriage.

42. During the marriage Father was the primary caregiver to 

[S.F.]. Mother did breastfeed [S.F.], but left all other primary 

care duties to Father. Mother worked from home in an online 

retail business and Father took care of [S.F.] and the household. 

Mother often acted irrationally and was abusive to Father. 

Mother often became upset and would act physically towards 

Father.

43. Mother continuously interfered with Father’s Skype and 

telephone communications with the children before they were 

unilaterally discontinued by Mother in 2012. 

44. When Father did last visit with the children in March 

2012, Mother accused Father of inappropriate contact with the 

children and filed a report with DCS. Mother’s allegations are 

unsubstantiated and denied by Father. Mother has failed to offer 

any evidence to support her allegations. Mother’s 

uncorroborated allegations are not considered credible by this 

Court.

45. Father’s spring visit with the children in 2012 went well 

and Father’s bond with [S.F.] was quickly re-established. During 

the visit, Mother continued to attempt to interfere or cut the visit 
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short. Mother left with [S.F.] before Father had an opportunity 

to say good-bye to [S.F.]. Mother’s actions were purposeful and 

part of her continued efforts to interfere with or eliminate 

Father’s relationship with his children. 

46. Mother failed to cooperate with Father’s discovery 

requests. As a result, this Court issued its Order Re: Discovery 

Sanctions on August 14, 2015. The Court incorporates the 

findings and conclusions set forth in the August 14, 2015 order 

herein. In addition to an award of attorney’s fees to Father, the 

Court also limited Mother’s testimony and the testimony of 

witnesses at final hearing. Mother’s failure to cooperate with 

discovery simply continues Mother’s course of action to obstruct 

and interfere with this Court’s ability to undertake its lawful 

duties.

47. The parties own no real property and all personal property 

has already been divided and distributed between the parties. 

There are no marital debts or liabilities. The marital estate has 

no value.

48. Father is currently employed with Ivy Tech earning 

[$]9.42 per hour. For the purposes of child support calculation, 

the Court will impute Father’s income at minimum wage for a 40 

hour work week, equally $290 per week. Mother’s employment 

is unknown and the Court imputes minimum wage income for 

Mother, for a weekly income of $290. Beginning in October 

2011, Mother began receiving child support payments that were 

directly withheld from Father’s social security disability benefits. 

Mother erroneously received double payments, as both Indiana 

and Florida withheld payments. This Court had previously 

ordered Mother to terminate the Florida support orders to avoid 

the double payments. Mother knowingly and intentionally failed 

to do so. Mother received the sum of $7,488.00 in erroneous 

child support payments. Father is entitled to reimbursement 

from Mother for the overpayments.
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50. Father has incurred attorney’s fees in the sum of 

$32,564.21 since the Preliminary Order was issued on March 7, 

2012.

51. Any finding of fact more appropriately deemed a 

conclusion of law shall be considered as such.

C. Conclusions of Law

52. This Court has subject matter jurisdiction over this matter.

53. This Court has personal jurisdiction over the parties.

54. Under the provisions of the Indiana Uniform Child 

Custody Jurisdiction Act ([“the Act”]), Indiana is the “home 

state” of the children and the parties. I.C. 31-21-2-8. Mother, 

Father and [S.F.] (as [C.F.] was not yet born) all lived in Indiana 

for a least six (6) consecutive months before the initiation of this 

action. Florida cannot meet the definition of “home state” as 

Father never resided in Florida and Mother and the children had 

not lived in Florida for 6 consecutive months prior to Mother 

filing her action in Florida.

55. Pursuant to I.C. 31-21-5-1, Indiana is the only home state, 

and this Court had jurisdiction to make its rulings concerning 

child custody. I.C. 31-21-5-l(a)(l). Florida cannot meet the 

jurisdictional requirements of I.C. 31-21-5-1 and therefore cannot 

be said to have asserted jurisdiction over custody matters 

“substantially in conformity with this article”, as required by I.C. 

31-21-5-6. Therefore, even if the Florida Court first issued 

rulings on custody matters, it did not have jurisdiction in 

substantial conformity with the [“the Act”] and therefore this 

Court did not have to cede to Florida’s jurisdiction over custody 

matters. Nevertheless, the Florida Court ultimately ceded and 

relinquished jurisdiction to this Court in its September 26, 2013 

order.

56. The Court shall determine custody and enter a custody 

and parenting time order in accordance with the best interests of 

the child, as established in I.C. §31-17-2-8. The Court shall 

consider all relevant factors, including but not limited to:
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a. The age and sex of the child.

b. The wishes of the child’s parents.

c. The interaction and interrelationship of the child with:

i. The child’s parents

ii. The child’s siblings

iii. Any other person who may significantly affect the 

child’s best interests

d. The child’s adjustment to the child’s:

i. Home

ii. School

iii. Community

e. The mental and physical health of all individuals involved.

f. Evidence of a pattern of domestic or family violence by 

either parent.

57. Based upon the above factors, it is in the best interests of 

the minor children that father shall have sole legal and physical 

custody of the minor children.

58. Mother’s actions in alienating the children from Father 

have had a detrimental impact on the children’s mental health. 

Father is now physically and mentally healthy, stable, and best 

able to provide for the care and needs of the children. Father has 

the support of his mother, Donna Funk, and his sister. Mother’s 

disregard of this Court’s orders and unilateral action to terminate 

Father’s relationship with the children demonstrate instability

and irrational action. The Court can only conclude that Mother 

presents a threat to the emotional health of the children.

59. Based upon Mother’s instability, her irrational actions, her 

status as a fugitive from justice, and the risk that Mother may 

abscond with the children, Mother’s parenting time with the 

minor children shall be supervised. The specific terms and 

conditions of Mother’s supervised parenting time shall be 

established once the children are returned to Father. Until such
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time as the children are returned to Father, Mother’s parenting 

time shall be suspended.

60. Father’s mother, Donna Funk, shall be the substitute 

custodian of the minor children pursuant to I.C. 31-17-2-8.

61. Mother shall pay child support in the sum of $77.00 per 

week. The Court’s calculation of child support pursuant to the 

attached Child Support Worksheet is incorporated herein. 

Uninsured medical expenses shall be paid pursuant to the 6% 

rule. Father shall pay the first $477 of uninsured medical 

expenses incurred on behalf of the minor children on an annual 

basis (to be prorated in this year), with Father paying 50% 

thereafter and Mother paying 50% thereafter. This child support 

order shall be effective upon the return of the children to Father.

62. Each party shall retain any and all personal property in 

their possession. Each party shall pay any and all debts or 

liabilities incurred in their own name. There is no marital debt. 

There is no real property. The parties provided the Court with 

no values as to their property, and therefore the Court deems the 

division of property to be equal pursuant to I.C. 31-15-7-5.

63. Mother is in contempt for her failure to abide by this 

Court’s orders to return the children to Indiana, provide Father’s 

parenting time, provide Father Skype and telephone 

communication, failure to provide a timely drug screen, failure to 

provide her address and/or whereabouts, and failure to terminate 

the Florida child support withholding order and reimburse Father 

for the overpayments. Based upon Mother’s contempt, 

continued efforts to violate and avoid complying with this 

Court’s orders, and discovery violations, Father is entitled to 

reimbursement of his attorney’s fees in the sum of $32,564.21.

64. Father is entitled to reimbursement from Mother for 

overpayments of child support in the sum of $7,488.00.

65. The parties’ marriage has suffered an irretrievable 

breakdown and should be dissolved.
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66. Any conclusion of law more appropriately deemed a 

finding of fact shall be considered as such.

D. Decree of Dissolution, Judgment and Order

67. The Court’s findings of fact and conclusions of law herein 

are made on order of this Court.

68. The parties’ marriage is hereby dissolved.

69. Father shall have sole legal and physical custody of the 

minor children.

70. Mother’s parenting time shall be suspended until the 

children are returned to Father and then shall be supervised 

thereafter, with the specific terms to be determined by the Court 

once the children are returned.

71. Father’s mother, Donna Funk, shall be the substitute 

custodian of the minor children pursuant to I.C. 31-17-2-8.

72. Mother shall pay child support in the sum of $77.00 per 

week. The Court’s calculation of child support pursuant to the 

attached Child Support Worksheet is incorporated herein. 

Uninsured medical expenses shall be paid pursuant to the 6% 

rule. Father shall pay the first $477 of uninsured medical 

expenses incurred on behalf of the minor children on an annual 

basis (to be prorated in this year), with Father paying 50% 

thereafter and Mother paying 50% thereafter. This child support 

order shall be effective upon the return of the children to Father. 

Mother shall pay child support to the Morgan County Clerk and 

mail any payments to the INSCCU at P.O. Box 7130, 

Indianapolis, IN 46207.

73. Each party shall retain any and all personal property in 

their possession. Each party shall pay any and all debts or 

liabilities incurred in their own name.

74. A judgment in the sum of $7,488.00 is entered in favor of 

Father and against Mother for reimbursement of child support 

overpayments.
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75. A judgment in the sum of $32,564.21 is entered in favor of 

Father and against Mother for reimbursement of Father’s 

attorney’s fees. 

78.[2] The writ of attachment previously issued in this matter 

shall remain in full force and effect.

79. The parties are ordered to perform all acts necessary to 

carry out and implement the terms of this Order.

Appellant’s App. pp. 29-43 (footnotes omitted). 

[5] Additionally, the following facts specifically relate to Mother’s attempts to have 

the issues of custody, support, and parenting time transferred to the Florida 

court system and her attempts to have the failure of those attempts overturned. 

On October 25, 2012, the trial court denied Mother’s motion to cede the issues

of custody, support, and parenting time to the Florida Court and certified the 

issue for interlocutory appeal. On April 5, 2013, in cause number 55A01-1303-

DR-90, this court declined to accept jurisdiction of Mother’s interlocutory 

appeal. Also on April 5, 2013, this court ruled that Mother had failed to show 

cause why her appeal in cause number 55A01-1209-DR-428 should not be 

dismissed, and ordered the appeal dismissed with prejudice. In that cause 

number, Mother was challenging the trial court’s grant of a permanent 

injunction and writ of bodily attachment in favor of Father. 

 

2

 The trial court’s order does not contain paragraphs designated 76 or 77. 
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[6] On September 27, 2013, Mother petitioned the Indiana Supreme Court for an 

emergency writ of mandamus. On October 1, 2013, the Indiana Supreme 

Court rejected Mother’s request for a writ of mandamus :

[Mother], by counsel, has filed a “Petition for Emergency Writ of 

Mandamus” (“Petition”) and accompanying application papers, 

seeking relief under the Rules of Procedure for Original Actions. 

The Petition and other application papers are procedurally 

deficient in many respects. Nevertheless, the Court elects to look 

past these procedural defects and address the Petition on its 

merits. 

The Petition and other application papers fail to show that the 

[Morgan Superior Court 1, et al.] have exceeded their 

jurisdiction, that the writ has been sought expeditiously after the 

jurisdiction of the [Morgan Superior Court 1, et al.] became an 

issue, and/or that the remedy by appeal would be wholly 

inadequate. Ind. Original Action Rule 3(A). Because the 

Petition seeks an unquestionably inappropriate remedy under the 

rules and law governing writs of mandamus, this original action 

is DISMISSED. 

Appellant’s App. p. 178. 

[7] Mother contends that the trial court erred in failing to give full faith and credit 

to the Florida Court’s “initial custody order” before that court ceded 

jurisdiction to the trial court; in granting Donna custody of the Children in 

2012; and in awarding sole custody of the Children to Father. Father argues 

that the question of jurisdiction over the custody issue has already been 

determined on the merits and may not now be reviewed, the trial court correctly 

determined that it has jurisdiction over the custody issue, and the trial court did 

not abuse its discretion in awarding sole custody of the Children to Father. 
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[8] We choose to frame and address the issues as follows: 

I. whether the res judicata and/or law-of-the-case doctrines 

bar consideration of the issue of jurisdiction; 

II. whether the trial court erred in failing to give full faith and 

credit to the Florida Court’s “initial custody order” before 

that court ceded jurisdiction to the trial court; 

III. whether the trial court erred in granting Donna custody of 

the Children in 2012; and 

IV. whether the trial court erred in awarding sole custody of 

the Children to Father. 

Discussion and Decision

I. Res Judicata/Law of the Case

[9] Father contends that reconsideration of the question of jurisdiction over the 

custody issue is barred by the doctrines of res judicata and/or law-of-the-case. 

Father essentially argues that the issue has already been decided on the merits 

by this court and the Indiana Supreme Court. Mother contends that the 

previous rulings were not on the merits and that consideration of the 

jurisdiction issue is not foreclosed. 

The doctrines of law-of-the-case and res judicata both operate to 

preclude litigation regarding matters that have already been 

litigated. Mutchman v. Consolidation Coal Co., 666 N.E.2d 461, 

464 (Ind. Ct. App. 1996). Specifically, the law-of-the-case 

doctrine provides that an appellate court’s determination of a 

legal issue binds both the trial court and the court on appeal in 

any subsequent appeal involving the same case and substantially 

the same facts. Cha v. Warnick, 476 N.E.2d 109, 114 (Ind. 1985). 

The law-of-the-case doctrine stands for the proposition that:
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[F]acts established at one stage of a proceeding, which 

were part of an issue on which judgment was entered 

and appeal taken, are unalterably and finally 

established as part of the law of the case and may not 

be relitigated at a subsequent stage.

Platt v. State, 664 N.E.2d 357, 361 (Ind. Ct. App. 1996) (citations 

omitted). The application of this doctrine is discretionary, and

despite its availability, courts retain the power to revisit their 

prior decisions or those of a coordinate court in any circumstance, 

“although as a rule courts should be loathe [sp.] to do so in the 

absence of extraordinary circumstances.” Id. The term 

“coordinate,” according to the American Heritage dictionary 

means “of equal rank, authority, or importance with another.”

Webster’s Third New International Dictionary 502 (2002); see 

also Turner v. State, 751 N.E.2d 726, 729 (Ind. Ct. App. 2001).

Similarly, the doctrine of res judicata prevents the repetitious 

litigation of that which is essentially the same dispute. Scott v. 

Scott, 668 N.E.2d 691, 699 (Ind. Ct. App. 1996). The principle of 

res judicata is divided into two branches: claim preclusion and 

issue preclusion. Eichenberger v. Eichenberger, 743 N.E.2d 370, 374 

(Ind. Ct. App. 2001). Claim preclusion applies where a final 

judgment on the merits has been rendered which acts as a 

complete bar to a subsequent action on the same issue or claim 

between those parties and their privies. Id. Issue preclusion, also 

referred to as collateral estoppel, bars the subsequent relitigation 

of the same fact or issue where that fact or issue was necessarily 

adjudicated in a former suit and the same fact or issue is 

presented in a subsequent action. Id. Where issue preclusion or 

collateral estoppel applies, the previous judgment is conclusive 

only as to those issues actually litigated and determined therein. 

Id.

In re Adoption of Baby W., 796 N.E.2d 364, 372-73 (Ind. Ct. App. 2003), trans. 

denied. 
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 19 of 27

[10] Father correctly observes that “[i]t is generally recognized that a dismissal with 

prejudice is a dismissal on the merits.” MBNA Am. Bank, N.A. v. Kay, 888 

N.E.2d 288, 292 (Ind. Ct. App. 2008) (citing Midway Ford Truck Center, Inc. v. 

Gilmore, 415 N.E.2d 134, 136 (Ind. Ct. App. 1981)). “As such it is conclusive of 

the rights of the parties and res judicata as to the questions which might have 

been litigated.” Id. (citing Midway Ford Truck Center, 415 N.E.2d at 136). 

[11] Father points to this court’s April 5, 2013, dismissal with prejudice of Mother’s 

appeal from the trial court’s denial of her motion to set aside Father’s 

permanent injunction and the writ of bodily attachment. There is no 

indication, however, that Mother’s motion had anything to do with the 

question of which state had jurisdiction over the custody issue. Consequently, 

this court’s dismissal on April 5, 2013, has no effect on our ability to address the 

jurisdiction issue. 

[12] Father also contends that the Indiana Supreme Court’s denial of Mother’s 

petition for a writ of mandamus precludes further consideration of the 

jurisdiction issue. We disagree. In denying Mother’s petition, the Indiana 

Supreme Court concluded that “[b]ecause the Petition seeks an unquestionably 

inappropriate remedy under the rules and law governing writs of mandamus, 

this original action is DISMISSED.” Appellant’s App. p. 178. It is clear that 

the Indiana Supreme Court’s dismissal was based on Mother’s request for an 

inappropriate remedy and therefore did not touch on the merits of her 

underlying claim. Father has failed to establish that the doctrines of res judicata

and/or law-of-the-case bar consideration of the jurisdiction issue. That said, 
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 20 of 27

even if we had concluded that res judicata and/or law-of-the-case did apply to 

the question of jurisdiction, in the interests of leaving no doubt and finality, we 

would exercise our discretion to address the question on the merits. In re 

Adoption of Baby W., 796 N.E.2d at 372-73. 

II. Jurisdiction Over Custody

[13] Mother contends that the trial court improperly failed to give full faith and 

credit to the Florida Court’s rulings issued prior to September 26, 2013, the date 

on which the Florida Court ceded jurisdiction to the trial court pursuant to the 

Act. Mother also contends that the trial court violated her due process rights by 

failing to recognize the Florida Court’s jurisdiction and granting physical 

custody of the Children to Donna on July 29, 2012. While Mother does not 

challenge the Florida Court’s ultimate September 26, 2013, ceding of 

jurisdiction to the trial court, she argues that the trial court’s improper exercise 

of jurisdiction put her at such a disadvantage that any hope for a fair final 

hearing was “obliterated.” Appellant’s Br. p. 32. Father contends that Indiana 

always had jurisdiction over the custody issue pursuant to the Act and therefore 

properly exercised and retained exclusive and continuing jurisdiction when it 

entered all of its orders. To the extent that Florida had jurisdiction over any 

aspect of this case, Father argues, it was emergency jurisdiction that was 

temporary in nature. 
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 21 of 27

[14] The Act provides that an Indiana court has jurisdiction to make an initial 

custody determination if Indiana is the home state. Indiana Code section 31-

21-5-1 provides, in part, as follows: 

(a) Except as otherwise provided in section 4 of this chapter, an 

Indiana court has jurisdiction to make an initial child custody 

determination only if one (1) of the following applies:

(1) Indiana is the home state of the child on the date of the 

commencement of the proceeding or was the home state of the 

child within six (6) months before the commencement of the 

proceeding, and the child is absent from Indiana but a parent or 

person acting as a parent continues to live in Indiana.

(2) A court of another state does not have jurisdiction under 

subdivision (1) or a court of the home state of the child has 

declined to exercise jurisdiction on the ground that Indiana is the 

more appropriate forum under section 8 or 9 of this chapter, and:

(A) the child and the child’s parents, or the child and at least 

one (1) parent or person acting as a parent, have a significant 

connection with Indiana other than mere physical presence; 

and

(B) substantial evidence is available in Indiana concerning the 

child’s care, protection, training, and personal relationships.

(3) All courts having jurisdiction under subdivision (1) or (2) 

have declined to exercise jurisdiction on the ground that an 

Indiana court is the more appropriate forum to determine the 

custody of the child under section 8 or 9 of this chapter.

(4) No court of any other state would have jurisdiction under the 

criteria specified in subdivision (1), (2), or (3). 

Mother’s argument is that the trial court exceeded its authority under the Act 

when it issued rulings regarding custody of the Children when the Florida 

Court had previously issued an emergency protective order. This argument 
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 22 of 27

depends on Florida having “home state” status pursuant to Indiana Code 

section 32-21-5-1(a). 

“Home state” means the state in which a child lived with:

(1) a parent; or

(2) a person acting as a parent;

for at least six (6) consecutive months immediately before the 

commencement of a child custody proceeding. In the case of a 

child less than six (6) months of age, the term means the state in 

which the child lived since birth with a parent or person acting as 

a parent.

Ind. Code §31-21-2-8. While this statute does not treat both of the Children the 

same, we ultimately reach the same result as to each, albeit by different routes. 

A. S.F.

[15] As previously mentioned, S.F. was born on November 28, 2006. Even if we 

accept Mother’s contention that she moved to Florida in late October of 2010 

and not in early 2011 as the trial court found, S.F. and Mother had not been in 

Florida for the required six consecutive months when Mother filed her petition 

in Florida on March 7, 2011, or when Father filed his dissolution petition in the 

Indiana trial court on March 16. Therefore, Indiana is S.F.’s home state for 

purposes of the Act and Florida cannot be. Insofar as S.F. is concerned, 

Mother has established no error. 

B. C.F.

[16] Also as previously mentioned, C.F. was born on June 9, 2011, in Florida, 

which was after Father commenced dissolution proceedings in Indiana on 
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 23 of 27

March 16, 2011. Pursuant to the Act, then, Indiana is not C.F.’s home state, 

and Florida, upon C.F.’s birth, became C.F.’s home state. By this time, Mother 

had already petitioned for an injunction for protection in Florida which 

preceded Father’s dissolution action. (Appellant’s App. 100-10). This means 

that C.F. had no “home state” when Mother filed her petition in Florida, which 

dealt, in part, with custody. 

[17] Stewart v. Vulliet, 888 N.E.2d 761 (Ind. 2008), presents similar facts and an 

analysis we find instructive. In that case, a pregnant mother filed dissolution 

and custody proceedings in Indiana, moved to Washington State, gave birth, 

and later attempted to have the proceedings transferred to Washington, 

asserting inconvenient forum. Id. at 763-64. The trial court ceded jurisdiction 

to Washington, and Father appealed. Id. at 764. The Indiana Supreme Court 

affirmed the judgment of the trial court, concluding that “[u]pon the birth of 

A.S., Washington became her home state.” Id. at 765. “Thereafter, 

Washington had concurrent subject matter jurisdiction to determine A.S.’s 

custody.” Id. at 765-66. Here, Florida properly exercised jurisdiction over 

C.F.’s custody because Florida is C.F.’s home state by birth, with Indiana 

having concurrent jurisdiction. 

[18] Moreover, pursuant to the Act, 

(a) Except as otherwise provided in section 4 of this chapter, an 

Indiana court may not exercise its jurisdiction under this article 

if, at the time of the commencement of the proceeding, a 

proceeding concerning the custody of the child has been 

commenced in a court of another state having jurisdiction 
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 24 of 27

substantially in conformity with this article, unless the 

proceeding:

(1) has been terminated; or

(2) is stayed by the court of the other state because an Indiana 

court is a more convenient forum under section 8 of this 

chapter.

So, at least as C.F. is concerned, it would appear that the trial court likely 

overstepped its bounds until jurisdiction was ceded to it in September of 2013. 

[19] That said, we conclude that Mother had failed to show any prejudice in this 

regard. “It is well settled that when an error did not affect the substantial rights 

of the complaining party, such error will be considered harmless and not be 

grounds for reversal.” Cornett v. Cornett, 412 N.E.2d 1232, 1236 (Ind. Ct. App. 

1980) (citation omitted). Mother’s claim of prejudice is essentially that she has 

been prevented from appearing at proceedings in Indiana because she is now 

the subject of a writ of bodily attachment and criminal charges for failing to 

abide by the trial court’s allegedly illegal orders. As we have concluded, 

however, the trial court has always had full authority to act where S.F. is 

concerned. Even if one assumes that an acceptable response to court orders 

issued without proper authority is to ignore them and openly defy the trial court 

(as Mother has done consistently for several years), Mother has no such excuse 

where S.F. is concerned. Whatever prejudice Mother has experienced seems to 

have been caused entirely by her own actions. Mother has failed to establish 

that she was unfairly prejudiced by any order of the trial court, even if 

erroneous. 
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 25 of 27

III. Award of Custody to Donna on July 27, 2012

[20] Mother also contends that the trial court violated her due process rights by 

failing to recognize the Florida Court’s jurisdiction and granting custody of the 

Children to Donna on July 29, 2012. As with Mother’s previous argument, we 

fail to see how she was prejudiced by the trial court’s award of custody to 

Donna, even if one assumes that the award was improper. In the end, Mother’s 

consistent refusal to abide by the trial court’s orders included this one; Donna 

has not, in fact, ever had custody of the Children because Mother has refused to 

deliver them as ordered. 

[21] Moreover, the 2012 order granting custody to Donna has been superseded by 

the decree of dissolution, granting sole physical and legal custody to Father. At 

best, Mother’s claim is moot. “An issue becomes moot when the parties lack a

legally cognizable interest in the outcome of its resolution.” Bremen Pub. Sch. v. 

Varab, 496 N.E.2d 125, 127 (Ind. Ct. App. 1986). “When the principle 

questions in issue have ceased to be matters of real controversy between the 

parties, when the court is unable to render effective relief upon an issue, and 

where absolutely no change in the status quo will result, the issues are deemed 

moot and the court will not retain jurisdiction to determine them.” Id. The 

2012 order granting custody to Donna, even if erroneous, is no longer a matter 

of real controversy between Mother and Father. 
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 26 of 27

II. Award of Custody to Father

[22] Mother contends that the trial court abused its discretion in awarding physical 

and legal custody of the Children to Father. Specifically, Mother argues that 

the trial court’s findings are not specific enough to allow meaningful review of 

its conclusion that Father is now physically and mentally healthy and stable. 

A child custody determination falls within the sound discretion 

of the trial court, and its determination will not be disturbed on 

appeal absent a showing of abuse of discretion. In Re 

Guardianship of R.B., 619 N.E.2d 952, 955 (Ind. Ct. App. 1993). 

We are reluctant to reverse a trial court’s determination 

concerning child custody unless the determination is clearly 

erroneous and contrary to the logic and effect of the evidence. Id.

We do not reweigh evidence nor reassess witness credibility, and 

we consider only the evidence which supports the trial court’s 

decision. Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App.

1996). 

Spencer v. Spencer, 684 N.E.2d 500, 501 (Ind. Ct. App. 1997). 

[23] We conclude that the record contains sufficient evidence to sustain the trial 

court’s conclusion regarding Father’s health. Father presented evidence that 

although he sought treatment for his mental health issues at Centerstone, he 

completed his treatment with Centerstone at the end of 2012. Father testified 

that he is no longer prescribed medication for mental health issues and last took 

Celexa and Cymbalta in 2013. Father testified that he has not had a seizure or 

experienced dizziness for a year and a half, each of which were side effects of 

his medication at the time, and that he has not taken seizure medications since 

March of 2014. Father testified that since 2011, he has lost 100 pounds and is 
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-DR-2223 | August 5, 2016 Page 27 of 27

no longer receiving Social Security Disability benefits. Mother argues that the 

trial court should not have been able to rely solely on Father’s “self-serving 

testimony regarding his mental health[,]” Appellant’s Br. p. 39, and that it erred 

by not ordering a more comprehensive mental health evaluation. Mother, 

however, is simply asking us to reweigh the evidence, which we will not do. See 

id. 

[24] Finally, Mother argues that the trial court abused its discretion in failing to give 

enough weight to what she refers to as “conclusive evidence of a pattern of 

Father committing domestic and family violence[.]” Appellant’s Br. p. 40. 

Paragraph 33 of the trial court’s dissolution order reads, in part, “Even though 

Mother has repeatedly accused Father of incidents of domestic violence during 

their marriage, the Court cannot conclude that Father did engage in domestic 

violence or that Father presents a current threat to the health, safety, and 

welfare of the minor children.” Appellant’s App. p. 34. Whatever evidence 

Mother presented concerning alleged domestic and family violence, the trial 

court determined was not credible. Again, Mother’s argument is nothing more 

than an invitation to reweigh the evidence, which we will not do. 

[25] The judgment of the trial court is affirmed. 

Pyle, J., and Altice, J., concur.