author: VAIDIK, Judge.

text:
    Jesse BROWN, Appellant-Petitioner, v. STATE of Indiana DEPARTMENT OF CHILD SERVICES, Appellee-Respondent.
    No. 41A01-1209-PL-404.
    Court of Appeals of Indiana.
    May 29, 2013.
    Ordered Published June 28, 2013.

      Mario Garcia, Christopher H. Weintraut, Brattain & Minnix, Indianapolis, IN, Attorneys for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee and Cross-Appellant.
   OPINION

VAIDIK, Judge.

Case Summary

The Indiana Department of Child Services (DCS) substantiated an abuse allegation against foster parent Jesse Brown. Brown appealed. The administrative law judge (ALJ) held a hearing at which Brown was not allowed to be in the hearing room during the victim’s testimony because of distress to the victim. The ALJ then entered findings of fact and conclusions of law that DCS had proved that Brown abused the child. Brown lost his child-care license.

Brown filed a verified petition for judicial review in the trial court, attaching the ALJ’s findings and conclusions. DCS then filed a motion to dismiss Brown’s petition for judicial review, arguing that Brown failed to file the agency record timely or request an extension of time to file the agency record and therefore the trial court lacked jurisdiction to rule on Brown’s petition. The trial court granted the motion to dismiss in part, and the case proceeded to the merits on the remaining claims, including whether Brown’s constitutional rights were violated when he was banned from the hearing room during the victim’s testimony. The trial court affirmed the ALJ but ordered DCS to reimburse Brown $1200 for the cost of preparing the agency record. Brown appeals, and DCS cross-appeals.

We recognize that there is no consensus on either the Indiana Supreme Court or this Court regarding what should happen when a petitioner fails to submit the agency record timely but the documents filed with the petition for review may be sufficient for the trial court to adjudicate the claims raised in the petition. However, it is clear that if the court needs the agency record to resolve an issue, then the petitioner’s failure to file the agency record or request an extension of time to file the record within thirty days after filing the petition for review means that the case must be dismissed. Because Brown’s constitutional claim is one that requires the agency record, we reverse the trial court’s denial of DCS’s motion to dismiss. In addition, because the petitioner bears the burden of filing the agency record timely and the petitioner is entitled to an extension to file the agency record due to the inability to obtain the record from the agency, we conclude that the trial court erred in ordering DCS to reimburse Brown $1200 for the cost of preparing the agency record.

Facts and Procedural History

Brown was a child-care worker/resource parent with DCS and served as a foster parent. Q.F., a ward of DCS born November 2, 1995, was placed with Brown as a pre-adoptive placement in April 2009. In December 2009, a few months before Q.F.’s adoption by Brown was to be finalized, Q.F. told his Family Case Manager (FCM) Jessica Archer that Brown abused him by touching his penis over his shorts on a camping trip to Brown County and then later under his shorts at their Johnson County home. Q.F. was taken to the Child Advocacy Center in Johnson County, where he was interviewed by FCM Wendy Maschino. Q.F. was also interviewed at the Greenwood Police Department. Based on the above evidence, FCM Charity Anderson recommended that the abuse allegations against Brown be substantiated.

Because of Brown’s status as a childcare worker/resource parent, DCS conducted an agency review of FCM Anderson’s recommendation. Brown participated in this review. DCS substantiated the abuse allegation against Brown.

Brown appealed. Hearings were held before ALJ Dawn Wilson on April 22 and June 22, 2010. At the June 22 hearing, Brown appeared in person and by counsel. DCS appeared by FCM Anderson and by counsel. Q.F. was a witness. According to the ALJ’s findings, both parties stipulated that Q.F. refused to talk or testify with Brown in the same room. Appellant’s App. p. 19 (Finding No. 10). DCS’s counsel said, “DCS would ask that it only be counsel and Judge in the room during [Q.F.’s] testimony.” Appellee’s App. p. 57. Over Brown’s objection, Brown was not in the hearing room during Q.F.’s testimony. Appellant’s App. p. 22 (Finding No. 16). Also according to the ALJ’s findings, Brown appeared and participated through his counsel, who cross-examined Q.F., and Brown’s counsel was given the opportunity to leave the room to communicate with Brown on multiple occasions. Id. Brown testified and denied the allegations.

On July 14, 2010, the ALJ issued a Notice of Hearing Decision which concluded that DCS had proved, by a preponderance of the evidence, that Brown abused Q.F. when he was under the age of fourteen. In the order, the ALJ provided that she “reviewed the testimony and all evidence presented at the hearing[ ] regarding this matter.” Id. at 17. As for Q.F.’s testimony, the ALJ found:

QF testified at the administrative hearing. Preliminary questioning of the child occurred. QF was visibly distressed when the possibility of questioning by [Mr. Brown] was discussed. In order to receive the most credible and reliable information possible, Mr. Brown, over counsel’s objection, was not in the hearing room in person during the testimony of this witness. Mr. Brown did appear and participate through counsel, Mario Garcia[,] in questioning the witness through both direct and cross examination. [Mr. Brown]’s counsel was given the opportunity to leave the room to communicate with [Mr. Brown] on multiple occasions. QF credibly testified to the following ....

Id. at 21-22. As a result of the ALJ’s decision, Brown’s child-care license was revoked.

On August 10, 2010, Brown filed a verified petition for judicial review of DCS’s final order in Johnson Superior Court. Appellee’s App. p. 1. He attached the ALJ’s Notice of Hearing Decision to his petition and challenged DCS’s actions as “invalid” for numerous reasons. See id. at 2-3. On October 4, 2010, DCS filed a motion to dismiss Brown’s petition for judicial review, arguing that Brown had failed to file the agency record timely or request an extension of time to file the agency record and therefore the trial court lacked jurisdiction to rule on Brown’s petition. Id. at 15, 19. Brown filed a response in which he explained that he had submitted a written request to DCS for it to “prepare and certify a true, accurate and complete copy of the entire Agency Record” on August 10, 2010, which was the same day that he filed his petition for judicial review. Id. at 35. DCS had then replied by letter dated August 24, 2010, that Circle City Reporting was DCS’s vendor and to “allow at least ninety (90) days for the completion of the requested transcript and related documents.” Id. at 36.

According to the Indiana Administrative Orders and Procedures Act (AOPA), the agency record, or a motion for extension of time to file the record, would have been due no later than September 9, 2010. See Ind. Code § 4-21.5-5-13(a) (requiring agency record to be filed within thirty days after the filing of the petition for judicial review). But Brown never filed a motion for extension of time to file the agency record. Instead, Brown filed the agency record on November 8, 2010. Appellant’s App. p. 3(CCS); Appellee’s App. p. 40 (Notice of Filing Agency Record). Brown paid Circle City Reporting $1200 for the cost of preparing the transcript. Appellee’s App. p. 37.

The trial court entered an order that granted in part and denied in part DCS’s motion to dismiss Brown’s petition for judicial review in January 2011. The court concluded as follows:

A. Based upon the untimely filing of the Record, the Record is not available to the Court for review.
B. [Brown] did timely file the Notice of Hearing Decision. Accordingly, those issues subject to determination solely by the Notice of Hearing Decision are properly before the Court for review.
C. The Court does possess jurisdiction. [DCS] ’s Motion to Dismiss the Plaintiff’s entire Verified Petition for Judicial Review of a Final Agency Adjudication is denied.
D. The Court identifies issues that may be properly considered on the basis of the Notice of Hearing Decision, to wit [Brown]’s assertion of the following matters:
1). “(t)The [sic] ALJ denied Brown the opportunity to confront his accuser in violation of his state and federal constitutional rights and in contravention of DCS’s own policy and procedures”;
2). “the ALJ impermissibly barred Brown from the Administrative Appeal hearing during his accuser’s testimony”; and
3). “(t)he Decision was issued outside of the time limit for doing so and thus was untimely.”
As to such issues, [DCS] ’s motion is denied.
E.Certain issues cannot be determined without the full agency record. Those issues include [Brown]’s assertions as follows:
“(a) The Decision and agency action was arbitrary, capricious, the Administrative Law Judge abused her discretion and the Decision was not in accordance with law; and
(c) The Decision and agency action is unsupported by substantial evidence.”
As to such issues, [DCS] ’s Motion to Dismiss is granted.

Id. at 44-45. The court’s order ended with the following statement and sanctions against DCS:

11. It is unconscionable that [DCS] can make no effort to comply with the statutory time frame for preparation of the record, charge [Brown] for the preparation of the record, deliver the record outside of the period for submission of the record while knowing that the record is of no value to [Brown] and retain the benefit of the funds expended by [Brown] for the preparation of the record. The Court orders that [DCS] refund to [Brown] all amounts expended by [Brown] to procure the record of the proceedings. [DCS] is further to assume full responsibility for any outstanding balance for preparation of the record that is owed to the agency that it engaged to prepare the record, to-wit: Circle City Reporting.

Id. at 45.

DCS filed a motion to reconsider portions of the trial court’s motion-to-dismiss order. Brown filed an objection to DCS’s motion to consider and his own motion to reconsider. The trial court denied both motions to reconsider.

The case then proceeded to the merits. Based on the trial court’s motion-to-dismiss order that significantly narrowed the issues in the case, Brown argued that his constitutional rights were violated when he was barred from the hearing room during Q.F.’s testimony and that the ALJ’s decision was untimely. In March 2012, the trial court issued its Order on Petition for Judicial Review affirming the decision of the ALJ. The order provides, in relevant part:

9. The record is not available from which to assess the findings of the Administrative Law Judge.
10. The right to be present at a hearing is not absolute but may be abridged due to extraordinary circumstances. Here, the findings of the Administrative Law Judge show that the Administrative Law Judge deemed that extraordinary circumstances were present in that a witness would not testify, but the Administrative Law Judge acted to permit [Brown] the opportunity to interact with counsel and to be able to cross-examine the witness.
11. In the absence of the record, the Court is unable to say that the determination of extraordinary circumstances by the Administrative Law Judge was not appropriate or that the Administrative Law Judge did not take adequate other steps so as to permit [Brown] the opportunity to consult with counsel and to cross-examine the witness.
12. As to the second issue, [Brown] asserts that the decision of the Administrative Law Judge is void for failure to be issued within fifteen (15) days of hearing. The hearing was conducted on June 22, 2010, and the decision was issued on July 14, 2010. [Brown] refers to DCS’s Child Welfare Manual, Ch. 2, Section 5, Ver. 2, pg. 3 to support his contention.
13. Based upon reference to the record, [DCS] asserts that the parties agreed to an extension of time for ruling until after submission of written arguments at [Brown’s] request....
14. Indiana Code 4-21.5-3-27(g):
“An order under this section shall be issued in writing within ninety (90) days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f), unless this period if waived or extended with the written consent of all parties or for good cause shown.”
15. The decision by the Administrative Law Judge was timely entered.
16. As to those issues subject to consideration without record, the Court does not find a basis to reverse the decision of the Administrative Law Judge. The decision of the Administrative Law Judge is affirmed.

Appellant’s App. p. 10-11.

Brown filed a motion to correct errors arguing that Indiana Code section 4-21.5-3-27(g) did not apply to DCS and urged the trial court to refer to DCS’s Child Welfare Manual, which provides that an ALJ decision must be issued within fifteen days after a hearing concerning a childcare worker. The State opposed Brown’s motion to correct errors. A hearing on Brown’s motion to correct errors was held. Brown then filed post-hearing legal authority asking the trial court to take judicial notice of DCS’s manual. Id. at 27-28.

The trial court granted Brown’s motion to correct errors with regard to the inapplicability of Indiana Code section 4-21.5-3-27(g). But as for the appropriate time frame, the trial court found that DCS’s manual did not have the force and effect of law and that “a time period for ruling by the Administrative Law Judge is not set out by statute or by administrative rule.” Id. at 16. The trial court therefore affirmed the ALJ’s decision. Id.

Brown appeals, and DCS cross-appeals.

Discussion and Decision

Brown contends that the trial court erred by finding that his constitutional rights were not violated when he was barred from the hearing room during Q.F.’s testimony. DCS counters that the trial court erred by denying its motion to dismiss this claim based on Brown’s failure to file the agency record timely or to file a motion for extension of time to file the agency record. DCS also argues that the trial court improperly ordered it to reimburse Brown $1200 for the cost of preparing the agency record.

Judicial review of administrative decisions is governed by AOPA. Ind. Code § 4-21.5-2-0.1. The standard of appellate review for motions to dismiss depends on whether the trial court resolved disputed facts, and if so, whether there was an evidentiary hearing. Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 (Ind.2006). Where, as here, the trial court ruled on a paper record, we review the motion to dismiss de novo. Id.

I. What is the Consequence of Brown’s Failure to File the Agency Record Timely?

The issue here centers on Brown’s failure to, within thirty days of filing his petition for review, either file the agency record or a motion for extension of time to file the record. AOPA requires that “[w]ithin thirty (30) days after the filing of the petition, or within further time allowed by the court or by other law, the petitioner shall transmit to the court the original or a certified copy of the agency record for judicial review of the agency action....” I.C. § 4-21.5-5-13(a). This statute places on the petitioner the responsibility to file the agency record timely. Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 370 (Ind.2010). A petitioner can request an extension of time to file the agency record, but that request must be made within the initial thirty-day window; nunc pro tunc extensions are not allowed. Id. at 370-71. AOPA further provides that extensions of time shall be granted where good cause is shown, and an “[¡Inability to obtain the record from the responsible agency within the time permitted by this section is good cause.” I.C. § 4-21.5-5-13(b). “Upon written request by the petitioner, the agency taking the action being reviewed shall prepare the agency record for the petitioner.” I.C. § 4-21.5-5-13(c). “Failure to file the record within the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on the petition of any party of record to the proceeding.” I.C. § 4-21.5-5-13(b) (emphasis added).

It is undisputed that Brown neither filed the agency record within thirty days nor requested an extension of time within that time period. Failure to do so was “cause for dismissal” pursuant to Section 4-21.5-5 — 13(b). Brown argues that despite his failures, the document he attached to his petition for review — the Notice of Hearing Decision which contains the ALJ’s findings of fact and conclusions of law — contains sufficient information to enable judicial review; therefore, the trial court properly denied DOS’s motion to dismiss the claim that his constitutional rights were violated when he was excluded from the hearing room during Q.F.’s testimony. DCS, however, argues that the trial court should have dismissed the remaining claim because it needed the agency record to review it.

There is a division in both the Indiana Supreme Court and this Court as to what should happen when a petitioner fails to submit the agency record timely, but the documents filed with the petition for review may be sufficient for the trial court to adjudicate the claims raised in the petition for review.

Our Supreme Court was recently equally divided in Meyer on this very issue. In Meyer, the appealed issue was a question of fact revolving around the valuation of a farm as it related to Alice Meyer’s application for Medicaid. FSSA admitted to error in its answer. Two of the participating justices determined that, in light of the agencjfs admission, the submitted documents were sufficient for review even without the full agency record. Meyer, 927 N.E.2d at 872. The other two participating justices disagreed, arguing that an agency record is required for judicial review and holding otherwise would lead to a “slippery slope, setting in motion regular satellite litigation ... in which private citizens and the taxpayers will spend time and money contesting whether a record is ‘complete enough.’ ” Id. at 374 (Shepard, C.J., concurring and dissenting).

Because the Court was “equally divided as to whether a case may go forward where a full record of proceedings has not been filed[,] [t]he result in the Court of Appeals therefore remain[ed] in place and the trial court’s order remanding th[e] case to FSSA [wa]s affirmed.” Id. at 372.

More recently, this Court, in a 2-1 opinion, encountered this issue in Lebamoff Enterprises, Inc. v. Indiana Alcohol & Tobacco Commission, 987 N.E.2d 525 (Ind.Ct.App.2013). Lebamoff Enterprises operates liquor stores in northern Indiana and holds a liquor-dealer permit. The Indiana Alcohol and Tobacco Commission (ATC) issued citations to Lebamoff stemming from Lebamoff s use of common carriers to transport product to customers, and Lebamoff appealed. The ALJ issued findings of fact and conclusions of law that Lebamoff had violated the governing statute by using common carriers. The ALJ recommended a fine of $1000 per violation and that Lebamoff s permit be suspended for sixty days, with the suspension deferred on the condition that all fines were paid and no further violations were accrued. The ATC approved the ALJ’s recommendations.

Lebamoff filed a petition for judicial review, but it did not file the agency record timely. ATC filed a motion to dismiss for failure to file the agency record. Following a hearing, the trial court granted the ATC’s motion to dismiss. Lebamoff appealed.

On appeal, the majority acknowledged that dismissal was “possible” due to Leba-moffs failure to file the agency record timely or request an extension of time; however, the majority cautioned that “dismissal was not mandatory.” Id. at 529. The majority pointed to the split court in Meyer “on the issue of whether a trial court may proceed with a case where the agency record was not timely filed, but the submitted materials contained sufficient facts on which a determination could be made.” Id. at 529. The majority distinguished this case from Meyer, finding that the issue in this case — whether Lebamoff s use of common carriers complied with the governing statute — was a pure question of law. Id. And to the extent that any facts were necessary, “they were included in the sparse findings of fact and conclusions of law written by the ALJ, which were submitted by Lebamoff with its petition; for example, the findings of fact noted that Lebamoff held a liquor permit, and the statutory section under which that permit was held.” Id. Because the question in Lebamoff presented a question of law and there were no disputed facts, the majority found that “the limited findings of the ALJ were sufficient to allow judicial review of the issue, even in the absence of the agency record.” Id. The majority concluded:

The best practice is to timely file the entire agency record regardless of the nature of the case. However, here, the record simply was not necessary for review, and the submitted materials are sufficient to permit review of the case on the merits. Failure to timely file the record is “cause for dismissal” under Indiana Code section 4-21.5-5-13, but cause for dismissal does not mean that the case must be dismissed, especially where, as here, the record was not required for a ruling. For that reason, we reverse and remand the case for resolution on the merits.

Id.

Judge Kirsch dissented. He argued:

The mandates of the Administrative Orders and Procedures Act as adopted by our General Assembly are clear. The Appellant simply failed to follow them. It failed to file the agency record within the time period set forth in the Act, and it failed to seek an extension of that time. That failure was cause for dismissal, and accordingly, I would affirm the trial court’s dismissal.

Id. at 531 (Kirsch, J., dissenting).

Although there is no consensus on either appellate court right now, one thing is certain: if the court needs the agency record to resolve an issue, then the petitioner’s failure to file the agency record or request an extension of time to file the record within thirty days after filing the petition for review means that the case must be dismissed. The question in this case becomes: was the agency record needed to review Brown’s claim that his constitutional rights were violated when he was not allowed in the hearing room during Q.F.’s testimony? Brown says no; DCS says yes. We agree with DCS.

Our Supreme Court addressed a party’s right to be present during the liability and damage phase of trial under Article 1, Section 20 of the Indiana Constitution in Jordan v. Deery, 778 N.E.2d 1264 (Ind.2002), reh’g denied. The Court concluded that because the right to be present in the courtroom during both the liability and damage phases of trial is so basic and fundamental, a party cannot be excluded “absent waiver or extreme circumstances.” Id. at 1272.

Here, the ALJ found extraordinary circumstances as follows:

QF testified at the administrative hearing. Preliminary questioning of the child occurred. QF was visibly distressed when the possibility of questioning by [Mr. Brown] was discussed. In order to receive the most credible and reliable information possible, Mr. Brown, over counsel’s objection, was not in the hearing room in person during the testimony of this witness. Mr. Brown did appear and participate through counsel, Mario Garcia[,] in questioning the witness through both direct and cross examination. [Mr. Brown]’s counsel was given the opportunity to leave the room to communicate with [Mr. Brown] on multiple occasions. QF credibly testified to the following ....

Appellant’s App. p. 21-22 (Finding No. 16).

Although the trial court found that the record was not available from which to assess the ALJ’s findings, the court determined:

10. The right to be present at a hearing is not absolute but may be abridged due to extraordinary circumstances. Here, the findings of the Administrative Law Judge show that the Administrative Law Judge deemed that extraordinary circumstances were present in that a witness would not testify, but the Administrative Law Judge acted to permit [Brown] the opportunity to interact with counsel and to be able to cross-examine the witness.
11. In the absence of the record, the Court is unable to say that the determination of extraordinary circumstances by the Administrative Law Judge was not appropriate or that the Administrative Law Judge did not take adequate other steps so as to permit [Brown] the opportunity to consult with counsel and to cross-examine the witness.

Id. at 11. Without the agency record, there can be no judicial review of whether extraordinary circumstances existed that justified Brown’s exclusion from the hearing room during Q.F.’s testimony. This is especially so since the ALJ indicated in her order that she relied on the testimony and all evidence presented at the hearing to reach her decision. In contrast to Leba-moff, which involved a pure question of law and no disputed facts, a determination of extraordinary circumstances is extremely fact sensitive. Despite the divide on the appellate courts, we do not need to decide whether failing to submit the agency record timely should result in dismissal of a case because here the record was needed. Because the agency record is needed to review this issue and Brown failed to file the agency record or request an extension of time to file the record within thirty days after filing the petition for review, we conclude that the trial court erred in denying DOS’s motion to dismiss the remaining claim. Accordingly, the trial court lacked jurisdiction. See Wrogeman v. Roob, 877 N.E.2d 219, 222 (Ind.Ct.App.2007), trans. denied; Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch.. Corp., 813 N.E.2d 330, 333 (Ind.Ct.App.2004) (“It is well-established that the time provisions of I[ndiana] C[ode section] 4-21.5-5-13 are ... a condition precedent to a court acquiring to consider a petition for judicial review.” (quotation omitted)).

II. Should DCS Reimburse Brown for the Cost of the Agency Record?

DCS contends that the trial court erred in ordering it to reimburse Brown $1200 for the cost of preparing the agency-record. In its order granting in part and denying in part DOS’s motion to dismiss Brown’s petition for judicial review, the trial court ordered as follows:

11. It is unconscionable that [DCS] can make no effort to comply with the statutory time frame for preparation of the record, charge [Brown] for the preparation of the record, deliver the record outside of the period for submission of the record while knowing that the record is of no value to [Brown] and retain the benefit of the funds expended by [Brown] for the preparation of the record. The Court orders that [DCS] refund to [Brown] all amounts expended by [Brown] to procure the record of the proceedings. [DCS] is further to assume full responsibility for any outstanding balance for preparation of the record that is owed to the agency that it engaged to prepare the record, to-wit: Circle City Reporting.

Appellee’s App. p. 45. Earlier in the same order, the trial court stated that “[t]here is a manifest injustice in placing in [the] hands of an adverse party the responsibility for time preparation of a record of the proceedings with the possibility of dismissal in favor of the adverse party if not time prepared.” Id. at 43.

We agree with DCS that the trial court erred in ordering it to reimburse Brown $1200 for the cost of preparing the transcript. This is because the legislature contemplated the possibility that an agency might not be able to prepare a record in time for filing within thirty days after the filing of a petition for judicial review. Accordingly, the legislature allowed petitioners to request an extension of time to file the record, which shall be granted where good cause is shown. Notably, the inability to obtain the record from the agency within the thirty days is good cause. I.C. § 4-21.5-5-13(b).

Here, the record shows that after Brown requested the agency record, DCS immediately informed him that it needed ninety days to compile it. Brown did not seek an extension. The burden is on the petitioner — Brown—to file the agency record timely or to file an extension within that time period. Meyer, 927 N.E.2d at 370; Lebamoff, 987 N.E.2d at 527-28. There is no evidence that DCS was being “intentionally slow” or “uncooperative” in producing the record in hopes of securing a dismissal. See Mosco v. Ind. Dep’t of Child Servs., 916 N.E.2d 731, 735 (Ind.Ct.App.2009), reh’g denied, trans. denied. Moreover, AOPA provides that “the agency shall charge the petitioner with the reasonable cost of preparing any necessary copies and transcripts for transmittal to the court....” I.C. § 4-21.5-5-13(d).

Despite complaints about the statutory setup of having the agency prepare the record when the petition for review can be dismissed for failing to file the record timely, the legislature has provided a simple solution that allows petitioners to seek an extension to file the agency record, which “shall be granted” if based on the inability to obtain the record from the agency. We therefore reverse paragraph 11 of the trial court’s January 2011 Order on Defendant’s Motion to Dismiss that directed DCS to reimburse Brown $1200 for the cost of preparing the agency record.

Reversed.

KIRSCH, J., and PYLE, J., concur.

      . According to Brown, criminal charges were never filed against him.

      .Brown also argues that the trial court erred by not taking judicial notice of DCS’s manual (which provides that an ALJ decision must be issued within fifteen days after a hearing concerning a child-care worker) and by finding that the ALJ’s decision was timely. In light of our decision that the trial court did not have jurisdiction in this case, these issues are moot. Regardless, the record shows that both parties agreed to hold the record open for ten days following the hearing and that the ALJ issued her decision within fifteen days of that date. Brown therefore suffered no prejudice.

      . Both parties agree that our review is de novo. See Appellant's Reply Br. p. 7; Appel-lee’s Br. p. 11.

      . Indiana Code sections 4-21.5-5-13(a) and 4-21.5-3-33(b) set forth the required contents of the agency record. See Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 373 (Ind.2010) (Shepard, C.J., concurring and dissenting).

      . Justice Sullivan did not participate in the decision, and the remaining justices were evenly split.

      . The author of this opinion was a member of the majority in Lebamoff.

      . Brown argues that his counsel, through conversations with opposing counsel, "was left with the impression ... that the time limitations under AOPA would not be an issue.” Appellant's Reply Br. p. 14. Having "an impression” is not sufficient.


source: Caselaw Access Project

author: BROWN, Judge.

license: Public Domain

text:
    In re the Marriage of Caleb E. CAMPBELL, Appellant-Respondent, v. Anna P. CAMPBELL, Appellee-Petitioner.
    No. 71A03-1210-DR-420.
    Court of Appeals of Indiana.
    June 19, 2013.
    Ordered Published July 11, 2013.

      Bryan Lee Ciyou, Lori Schmeltzer, Ci-you & Dixon, P.C., Indianapolis, IN, Attorneys for Appellant.
    Mark S. Lenyo, South Bend, IN, Attorney for Appellee.
   OPINION

BROWN, Judge.

Caleb E. Campbell (“Father”) appeals the trial court’s September 11, 2012 decree of dissolution of marriage which in part awarded custody of Z., the biological son of Father and adopted son of Anna P. Campbell (“Mother”), to Mother. Father raises three issues, which we revise and restate as:

I. Whether the court erred in awarding custody of Z. to Mother;
II. Whether the court erred in ordering that Z.’s grandparents participate in family therapy; and
III. Whether the court erred in its division of the marital estate.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Father and Mother were married in June 2005. Father and Mother had two children together, and Mother adopted Z., who was Father’s biological son from a previous relationship. On February 11, 2011, Mother filed a petition for dissolution of marriage. The parties each filed petitions for provisional relief regarding temporary custody of the children, parenting time, and payment of marital expenses. Following a hearing, on April 1, 2011, the court entered an order of provisional relief in which it found in part that the parties would share legal and physical custody of the children and that Mother would have use of the parties’ tax refund, Father’s Pell Grant funds, and the parties’ joint bank deposits for necessary expenses and was to keep an accounting of the expenses. The parties subsequently filed motions related to the school the children would attend, parenting time, and Mother’s relocation. The court held an evidentiary hearing on July 16, July 31, and August 6, 2012, related to the petition for dissolution and pending motions at which the parties presented testimony and evidence. On August 20, 2012, the court entered a provisional order that the children attend school in the school district of Mother’s residence pending the issuance of the final decree.

On September 11, 2012, the court issued a decree of dissolution of marriage finding that Mother should have sole legal and physical custody of the three children, dividing the marital estate, awarding Father parenting time according to the Indiana Parenting Time Guidelines, ordering Father to pay weekly child support, and ordering the parties, the children, Vicky Miles (“Maternal Grandmother”), and Bruce Dickey and Adele Dickey (“Paternal Grandparents”) to participate in extensive family therapy. With respect to its custody determination, the court made the following findings:

Applying these factors [Ind. Code § 31-17-2-8] to the facts of this case:

(1) the children are ages 11[Z.], 6, and 4 and are two boys and a girl;
(2) both parents wish to have physical custody of the minor children;
(3) the wishes of the children have not been solicited based upon their age and none of the children have attained the age of 14;
(4) the children interact well and have a loving relationship with both parents. Mother has been the stay-at-home parent of the children for most of their lives and the children are closely and emotionally bonded with Mother. The children have strong relationships with their siblings and although [Z.] is not a biological child of [ ] Mother, Mother has been the primary caretaker of [Z.] and [Z.’s] significant relationship "with his siblings is a very important factor. [Z.] has made misrepresentations about actions in his life, as a method to seek attention, even negative attention, and that should be addressed in the counseling as ordered below. Hopefully, after the turmoil of this litigation is concluded, [Z.] will adjust well; the other children are well adjusted. The extended families of both parties have rendered significant assistance. The children should continue to have contact in both homes with the extended family members.
(5)(A) the children’s adjustment to their home has been disrupted based upon the loss of the [] property because of financial issues;
(5)(B) the children will not be attending the same Christian, school they had attended by agreement of the . parties as they neither nor other family members can afford to continue to pay the private educational expenses;
(5)(C) the children’s adjustment to the St. Joseph County community is well established even though they will be attending a new school this fall. The reality is that these young children are adaptable and should be able to make new friendships at their age and the school system in Mother’s school district;
(6) the mental and physical health of all of the individuals involved; [ ] Mother has a condition with her bladder that is painful and that requires significant medication, but Mother has properly administered the medication as prescribed and it is not an impediment to her for providing good parenting. However, Father on occasion, has abused alcohol and one occasion urinated on [Father’s other son’s] bed while he slept. Neither Father nor Mother has any other significant health issues other than the depression normally associated with the end of the marriage and loss of contact with the children. However, [Z.’s] biological mother, who has had limited contact with [Z.], suffers from significant mental illness and Mother has been reluctant to allow [Z.] to have unsupervised contact with the biological mother. Supervised contact with the biological mother of [Z.] should be continued, if Father wishes to allow that during his parenting time period and Mother, as legal custodian, does not object. Mother should have no obligation to continue that contact during her parenting time;
(7)the evidence of a pattern of domestic or family violence by either parent; Father has not committed domestic violence against Mother, however, a protective order did issue as discussed and Father did violate the protection order by failing to comply with the prohibition of contact ... at a music concert. Father was found in contempt.
The Court has weighed the above factors in entering its order. Mother should have sole legal and physical custody.

Appellant’s Appendix at 14-17. The court also found “that the relocation of Mother to Osceola from the 5th Street address is insignificant and Mother is authorized to continue residence is [sic] her current Osceola residence with the minor children.” Id. at 17. The court later issued an order, at Mother’s request, restoring Mother’s maiden name.

DISCUSSION

In issuing the decree of dissolution, the trial court entered findings of fact and conclusions of law. Where a trial court has made findings of fact, we apply the following two-tier standard of review: whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions thereon. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997). Findings will be set aside if they are clearly erroneous. Id. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. To determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id. A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id. As we conduct our review, we presume the trial court followed the law. Rea v. Shroyer, 797 N.E.2d 1178, 1181 (Ind.Ct.App.2003). It is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal. Id.

I.

The first issue is whether the court erred in determining the custody of Z. A trial court’s custody determination is afforded considerable deference as it is the trial court that sees the parties, observes their conduct and demeanor, and hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945-946 (Ind.Ct.App.2006). Thus, on review, we will not reweigh the evidence, judge the credibility of witnesses or substitute our judgment for that of the trial court. Id. at 946. We will reverse the trial court’s custody determination only if it is clearly against the logic and effect of the facts and circumstances or the reasonable inferences drawn therefrom. Id.

Ind.Code § 31-17-2-8 provides:

The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

Ind.Code § 31-9-2-13 provides that “ ‘[c]hild’, for purposes of ... IC 31-17, means a child or children of both parties to the marriage” and that “[t]he term includes the following: ... (2)[c]hildren born or adopted during the marriage of the parties.”

Father maintains that the court abused its discretion in granting Mother custody of Z., where there was substantial evidence that Z. requires special attention and care, Father was Z.’s only consistent parent since birth, and Mother treated Z. differently than the other two children and attempted to hinder Z.’s contact with his biological mother’s family. Father asserts that the court abused its discretion in not making a finding that, even though Z. was eleven years old at the time of the decree, he was Mother’s son for only two to three years prior to the decree. Father further argues that the evidence does not support the court’s finding that Mother had been a primary caretaker for Z. since Father had sole custody following his separation from Z.’s biological mother and both Father and Mother had joint custody during the pen-dency of the dissolution. Father also contends that the court abused its discretion in finding that Mother’s relocation was insignificant and that Mother’s illness and medication consumption does ■ not affect her ability to parent the children. He asserts that the instances of his conduct related to alcohol use were isolated and remote to his present condition.

Mother maintains that the court did not err in awarding custody of Z. to her where she had been the primary caretaker for the children, the parties had a long history of being unable to work together or communicate amicably about the children, the children were not adjusting well to a shared custody arrangement, and Father had past problems related to drug and alcohol abuse. Mother argues that the trial court examined each factor required by Ind.Code § 31-17-2-8 and thoroughly reviewed the facts and various exhibits introduced at trial, including a detailed report prepared by the Domestic Relations Counseling Bureau (the “DRCB”). Mother argues that, at the time of trial, she had been raising Z. for at least seven years and that Z. was eleven years old, that the court thoughtfully considered the evidence with respect to the interaction or interrelationship of the children with their parents and siblings, that Mother took the children to counseling, that Mother was a stay-at-home parent for the children, that evidence established that Z.’s birth mother was bi-polar and has a serious mental illness, that Mother had to find affordable housing which she did, that Father’s allegations that Mother misused prescription drugs was not supported by the evidence, and that Father ignores or discounts his DUI during the pendency of the divorce and his history throughout the marriage in which he abused alcohol repeatedly which included an incident where he was so intoxicated he urinated on his son’s bed.

At the evidentiary hearing, Mother testified regarding Father’s use of alcohol during their marriage, the incident several years earlier when she woke up to find Father standing over one of the children’s beds urinating, and that Father had a DUI the previous year. Mother gave testimony regarding her knowledge of Father’s anger problems, the difficulty in communicating with him, that he would try to force Mother not to leave the room when she attempted to do so, and that he called her a “dumb b — ,” a “f-- wh — ,” and a “c — .” Transcript at 50. Mother stated that she obtained a protective order against Father and that, in violation of the order, Father orchestrated people to bring photographs of his face on sticks to a concert where she was playing in the band, according to the report of the DRCB. Mother further testified regarding her health issues and medications. Mother said that she was a stay-at-home mother during the marriage and testified regarding her ability to care for the children, her work teaching music lessons, and the stable environment she provided for the children. Mother also testified regarding her actions of breaking a picture frame and breaking a window following a fight with Father. She further testified regarding the children’s school, her housing arrangements, her move from the marital residence to another residence which had been purchased by Mother’s parents due to financial concerns, and issues involving Z.’s counseling.

Mother also presented the DRCB report submitted by Patricia Starr which set forth the allegations Father made regarding Mother’s treatment of Z. and the allegations Mother made against Father and Paternal Grandparents regarding their treatment of her and Z., observations made by DRCB during home visits of the parties’ residences, and a summary of information provided by Z.’s grandparents, a doctor who examined Z., a caseworker with Child Protective Services who had investigated previous allegations involving Z., and the director and a teacher at the school which Z. had attended.

Father testified and presented the testimony of Paternal'Grandparents, Patricia Starr with the DRCB, and the sister of Z.’s biological mother. Father indicated that he did not have a substance abuse problem, had not completed a substance abuse assessment recommended by the DRCB, and no longer had an issue with alcohol. The sister of Z.’s biological mother testified regarding her observations of Z. and his relationship with Father and Mother, and Mother’s attitude toward Z. spending time with his biological mother’s family. Starr testified regarding her involvement with the parties and Z. and her observations. Paternal Grandparents testified regarding their involvement and interactions with Father, Mother, Z., and the other children.

While the evidence presented at the evi-dentiary hearing regarding the conduct of the parties and the evidence which may have had a bearing upon the factors considered by the trial court in making the custody determinations was conflicting in a number of respects, we note that this court may not reweigh the evidence or assess the credibility of the testimony. In custody disputes, the trial court “is often called upon to make Solomon-like decisions in complex and sensitive matters.” Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind.Ct.App.2002) (citations omitted), reh’g denied, trans. denied. The trial court is in a position to see the parties, observe their conduct and demeanor, and hear their testimony; therefore, its decision receives considerable deference in an appellate court. Id.

Based upon the court’s findings and our review of the evidence and testimony set forth above and in the record, and especially in light of our preference for granting latitude and deference to our trial court judges in family law matters, we cannot say that the trial court abused its discretion in awarding custody to Mother or that the court’s judgment is clearly erroneous.

II.

The next issue is whether the trial court erred in ordering that Paternal Grandparents participate in family therapy. Father contends that the court lacked personal jurisdiction over Paternal Grandparents to order them to counseling related to their grandchildren, noting that the grandparents were not parties to the litigation. Mother argues that the court was within its discretion ordering the Paternal Grandparents as well as Maternal Grandmother to participate with Father, Mother, and the children in family therapy. Mother argues that Father waived his argument on appeal that the court did not have personal jurisdiction over Paternal Grandparents and Maternal Grandmother because the DRCB Report and its recommendations were offered into evidence by Mother and that Father failed to object to the recommendations. In his reply brief, Father argues that he could not have waived his argument as to the personal jurisdiction of Paternal Grandparents.

In its September 11, 2012 decree, the trial court ordered in part: “The parties and [Z.], [the parties’ two other children], Ms. Vicky Miles [Maternal Grandmother], Ms. Adele Dickey and Mr. Bruce Dickey [Paternal Grandparents] shall participate in extensive family therapy....” Appellant’s Appendix at 24. We observe that dissolution proceedings must comply with the Indiana Rules of Civil Procedure, see Ind.Code § 31-15-2-1, and that Ind. Trial Rule 4(A) provides that “[t]he court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law.” Further, Ind. Trial Rule 24 governs the right or ability to intervene in a matter and sets forth a procedure for doing so. The record shows that Paternal Grandparents and Maternal Grandmother were not parties to the dissolution proceedings and had not intervened in the proceedings pursuant to the Indiana Rules of Civil Procedure. The parties do not point to the record to show that any of the Grandparents were served with a summons. Mother’s argument that Father in some manner waived any objection to the court’s personal jurisdiction over Paternal Grandparents is unpersuasive. Accordingly, we reverse the trial court’s order that Paternal Grandparents and Maternal Grandmother participate in family therapy and remand for modification of the decree consistent with this opinion.

III.

The next issue is whether the trial court erred in its division of certain marital property. Ind.Code § 31-15-7-4 governs the division of property in dissolution actions and requires that the trial court “divide the property in a just and reasonable manner.” Ind.Code § 31-15-7-4(b). The court shall presume that an equal division of marital property between the parties is just and reasonable, and may deviate from an equal division only when that presumption is rebutted. Ind.Code § 31-15-7-5. The trial court’s division of marital property is “highly fact sensitive and is subject to an abuse of discretion standard.” Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind.2002). Also, a trial court’s discretion in dividing marital property is to be reviewed by considering the division as a whole, not item by item. Id. We “will not weigh evidence, but will consider the evidence in a light most favorable to the judgment.” Id.-A trial court may deviate from an equal division so long as it sets forth a rational basis for its decision. Hacker v. Hacker, 659 N.E.2d 1104, 1109 (Ind.Ct.App.1995). “A party who challenges the trial court’s division of marital property must overcome a strong presumption that the court considered and complied with the applicable statute.” Wanner v. Hutchcroft 888 N.E.2d 260, 263 (Ind.Ct.App.2008).

It is well-established that all marital property goes into the marital pot for division, whether it was owned by either spouse before the marriage, acquired by either spouse after the marriage and before final separation of the parties, or acquired by their joint efforts. Ind.Code § 31-15-7-4(a); Beard v. Beard, 758 N.E.2d 1019, 1025 (Ind.Ct.App.2001), trans. denied. This “one-pot” theory ensures that all assets are subject to the trial court’s power to divide and award. Thompson v. Thompson, 811 N.E.2d 888, 914 (Ind.Ct.App.2004), reh’g denied, trans. denied. The trial court has no authority to exclude or set aside marital property but must divide all property. Moore v. Moore, 695 N.E.2d 1004, 1010 (Ind.Ct.App.1998).

Ind.Code § 31-15-7-4 provides:

(a) In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the property of the parties, whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
(b) The court shall divide the property in a just and reasonable manner by:
(1) division of the property in kind;
(2) setting the property or parts of the property over to one (1) of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper;
(3) ordering the sale of the property under such conditions as the court prescribes and dividing the proceeds of the sale; or
(4) ordering the distribution of benefits described in IC 31 — 9—2—98(b)(2) or IC 31 — 9—2—98(b)(3) that are payable after the dissolution of marriage, by setting aside to either of the parties a percentage of those payments either by assignment or in kind at the time of receipt.

Ind.Code § 31-15-7-5 provides:

The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that -an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.

Father argues that the court erred in failing to evenly divide between the parties certain personal property itemized on a list he submitted to the court. Specifically, Father maintains that he submitted a list which specifically identified certain household items, that everything on the list which was underlined were items in Mother’s possession which he wished to obtain as his sole and separate property, and that the court merely divided the “personal effects and belongings” and “[p]ersonal property in mother’s possession” generally and did not specifically note as to why there was an unequal division. Appellant’s Brief at 29-30. Father further argues that Mother filed her petition for dissolution on February 11, 2011, that he was attending school at the time of the dissolution and received a disbursement of $3,571.85 for his education in the form of a Pell Grant on February 15, 2011, and that the court in its April 1, 2011 interim order found that Mother was granted the sole and exclusive use of the funds. Father maintains that the purpose of the funds was to meet his “costs of attendance in the higher education program he was enrolled,” citing 20 U.S.C. § 1070a, that “[t]here is nothing on the record to indicate that Mother was enrolled in any educational programs,” that the marital estate closed on the date the petition for dissolution was filed and any assets acquired for purposes of marital property division are the sole and separate property of the individual who acquired the property, and that the court erred in its final decree in providing no offset for the full amount of the Pell Grant funds to Father.

Mother argues that the list of property submitted by Father contained no corresponding values of the property he sought, that no evidence of the value of any personal property was presented, that case law does not require that a court establish the value of each marital asset before distribution, that the burden of proving the value of marital assets is on the parties to the dissolution, and that Father presented no evidence as to the value of the assets and has waived any error of review. Mother contends, with respect to the Pell Grant funds, that she testified the funds were used to support the family and pay long overdue bills which were in existence at the time the divorce was filed, that “clearly the grant had been applied for and awarded prior to the divorce, but was not received until after the filing,” and that “[t]he fact that the money was actually received several days after the filing of the divorce does not establish that it was father’s separate property.” Appellee’s Brief at 20.

In his reply brief, Father argues that the court must divide all property of the parties, that the court had evidence before it of property that needed to be divided between the parties, and that the trial court failed to do so. Father also argues that the Pell Grant, on its face, is for educational support of the recipient, that he was the only one enrolled in school, and thus that the court’s order should be reversed.

1. Division of Household Items

Father requested that the trial court divide specific assets identified in Respondent’s Exhibit II as household items. He testified that he underlined the items listed in Respondent’s Exhibit II that he would like to obtain. The underlined items on Respondent’s Exhibit II include a desk on the front porch, a living room chair, a living room couch, a “Buffett Antique,” the “TV/tv cabineVsurround sound/dvd player,” the end tables, coffee table, lamp, dining table and chairs, the boys’ bunk beds, the small dresser in the bedroom, Z.’s dresser, the rocking chair in his daughter’s room, a large red drum set, a garden hose, weed eater, garden tools, lawn mower, and a tenor saxophone. Respondent’s Exhibit II. The items on Respondent’s Exhibit II which were not underlined included a bench on the front porch, a front porch chair, a basement sectional, a china cabinet, an “Antique wash stand,” a desk in the dining room, a queen size bed, the dressers of one of Father’s sons and his daughter, the bed of his daughter, an alto saxophone, a small blue drum set, a dryer, a refrigerator, a washer, a stove, and a set of china. Id.

The trial court ordered that Mother receive the “[p]ersonal property in [her] possession including inherited property” and that Father receive the “[c]lothing, papers and any ... other personal effects and belongings” and the “[h]ousehold appliances.” Appellant’s Appendix at 21. While the court’s order did not specifically designate the items contained in Respondent’s Exhibit II, we find that it is both broad and specific enough to apprise the parties which items each was to receive. To the extent Father argues that the order results in an unequal division, we note that Father did not present any evidence as to the value of these items. As it was the burden of the parties to prove the value of the marital assets, we decline to address this issue. See In re Marriage of Church, 424 N.E.2d 1078, 1081 (Ind.Ct.App.1981) (holding that “any party who fails to introduce evidence as to the specific value of the marital property at the dissolution hearing is estopped from appealing the distribution on the ground of trial court abuse of discretion based on that absence of evidence”); see also In re Marriage of Larkin, 462 N.E.2d 1888, 1344 (Ind.Ct.App.1984) (finding no abuse of discretion in the trial court’s division of assets where the parties failed to provide evidence of the value of certain assets at trial).

2. Pell Grant Funds

With respect to the Pell Grant funds received on February 15, 2011, the evidence shows that Mother filed her petition for dissolution on February 11, 2011. In the decree, the trial court found that the Pell Grant together with the parties’ tax refund totaled $12,367.00 and that, “[a]s Father was in school and Mother had limited income, ... the court allowed Mother the use of this money to pay for household expenses.” Id. at 20. Father testified that he attended school at Ivy Tech. Respondent’s Exhibit GG shows that the amount of Pell Grant funds distributed was $3,571.85, and Petitioner’s Exhibit 5 includes a handwritten notation that the Pell Grant funds were $3,571. Mother does not contend that the Pell Grant funds were intended for her or that she was enrolled in any school program. The Pell Grant funds were distributed after the date Mother filed her petition for dissolution and thus were the separate property of Father as the intended recipient of the funds. See Keown v. Keown, 883 N.E.2d 865, 871 (Ind.Ct.App.2008) (noting that the marital estate closes on the date the dissolution petition is filed) (citing Thompson, 811 N.E.2d at 913 (providing that generally the marital estate closes on the date the dissolution petition was filed and debts incurred by one party after that point are not to be included in the marital estate)). Further 20 U.S.C. § 1070a clearly provides that a Federal Pell Grant is to be used for a student’s cost of attendance at an institution. See supra n. 2. In dividing the marital property, the court erred in failing to account for or provide an offset for the amount of the Pell Grant funds. Accordingly, we reverse and remand with instructions to modify the court’s order to allocate or assign the Pell Grant funds to Father and for any other necessary revisions to the decree to effect this modification.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s order that Paternal Grandparents and Maternal Grandmother participate in family therapy and the court’s orders with respect to the division of the marital estate to the extent it failed to allocate the Pell Grant funds to Father, remand for modification of the decree of dissolution consistent with this opinion, and in all other respects, including the court’s custody determinations and division of the parties’ household items, affirm the ruling of the trial court.

Affirmed in part, reversed in part, and remanded.

RILEY, J., and BRADFORD, J., concur.

      . Ind. Trial Rule 24(C) provides in part that "[a] person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5” and that "[t]he motion shall state the grounds therefor and set forth or include by reference the claim, defense or matter for which intervention is sought.”

      . 20 U.S.C. § 1070a addresses federal Pell Grants and provides in part:
      The purpose of this subpart is to provide a Federal Pell Grant that in combination with reasonable family and student contribution and supplemented by the programs authorized under subparts 3 and 4 of this part, will meet at least 75 percent of a student's cost of attendance (as defined in section 108711 of this title), unless the institution determines that a greater amount of assistance would better serve the purposes of this section.


author: PYLE, Judge.

text:
    Cecilia KELLY, Appellant-Respondent, v. GEPA HOTEL OWNER INDIANAPOLIS LLC, Gepa Hotel Operator Indianapolis LLC, and Schindler Elevator Corporation, Appellees-Petitioners.
    No. 49A04-1210-CT-509.
    Court of Appeals of Indiana.
    July 11, 2013.
    Ordered Published Aug. 23, 2013.

      Melissa A. Davidson, Charles D. Hankey Law Office, Indianapolis, IN, Attorney for Appellant.
    Thomas C. Hays, Valerie L. Hughs, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellee/Gepa.
    Benjamin D. Ice, William A. Ramsey, Murphy Ice & Koeneman LLP, Fort Wayne, IN, Attorneys for Appellee/Schin-dler.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Cecilia Kelly (“Kelly”) appeals the trial court’s grant of summary judgment in favor of GEPA Hotel Owner Indianapolis, LLC, GEPA Hotel Operator, LLC (collectively “GEPA”), and Schindler Elevator Corporation (“Schindler”).

We reverse.

ISSUE

Whether the trial court erred in granting summary judgment in favor of GEPA and Schindler.

FACTS

On February 29, 2008, Kelly, Barbara Williams (“Williams”), and Greta Harrison (“Harrison”) attended a church function at a Hilton Hotel in Indianapolis. After the event ended, the women, escorted by Henry Perry (“Perry”), went to the nineteenth (19th) floor to visit the speaker for the evening. Once the elevator arrived at the 19th floor, everyone began to exit. As Kelly exited, the elevator moved and the heel of her shoe became caught in the gap between the elevator and the floor, causing her to stumble; her foot came out of her shoe. Kelly injured her knee because of the incident. Williams was already off the elevator and did not see it move. Williams did hear sounds come from Kelly and what Williams thought was the elevator. Harrison said that she heard the elevator “jar” and saw Kelly fall. (Appellant’s App. 88). Perry felt the elevator move and had to pull Kelly’s shoe out of the gap between the elevator and the 19th floor.

On January 19, 2010, Kelly filed a lawsuit in the Marion County Superior Court against GEPA and Schindler alleging that they were negligent in the inspection and maintenance of the subject elevator. After discovery and depositions, Schindler moved for summary judgment on January 5, 2012, claiming that Schindler, as a matter of law, did not breach a duty to Kelly or cause her injuries. In support of their motion for summary judgment, Schindler designated GEPA’s answers to interrogatories from Schindler and Kelly, depositions from Kelly and Williams, and an affidavit from John Gieske (“Gieske”), GEPA’s Director of Engineering. Schindler argued that Kelly simply stepped into the gap between the elevator and the 19th floor. Gieske’s affidavit stated that the gap was necessary for the elevator to operate and that the gap had not been altered since the building opened in 1971. On January 6, 2012, GEPA filed a motion joining Schindler’s motion for summary judgment. In joining Schindler’s motion for summary judgment, GEPA incorporated all arguments and designations of evidence made by Schindler.

On March 5, 2012, Kelly responded to both defendants, designating the expert testimony of Joseph Stabler (“Stabler”) as evidence that created genuine issues of material fact to preclude summary judgment. The trial court granted Schindler and GEPA time to reply so that they could depose Stabler. At Stabler’s deposition, he testified that he conducted an inspection of the elevator on January 26, 2011. During his inspection, Stabler found that the metal threshold sill on the elevator was loose and tilted forward when he applied pressure. Stabler also reviewed maintenance records provided by Schindler and elevator logs kept by GEPA. GEPA’s elevator logs revealed three (3) incidents between 2007 and 2008 where the elevator stopped between three (3) to eight (8) inches above the 19th floor. Stabler concluded that based on his inspection of the maintenance records and hotel logs, Schindler and GEPA did not regularly inspect the threshold sill. Stabler also stated that the elevator’s motion controller and positioning device were defective, causing the elevator to move as Kelly was exiting to the 19th floor.

On July 17, 2012, Schindler filed a motion to strike the affidavit of Stabler, arguing Stabler’s opinions were not reliable under Ind. Evidence Rule 702. GEPA again joined Schindler’s motion. On October 9, 2012, the trial court entered a general order granting the motion to strike and entered summary judgment in favor of Schindler and GEPA. Kelly filed her notice of appeal on October 11, 2012.

DECISION

In appealing the grant of Schindler and GEPA’s motion for summary judgment, Kelly claims that the trial court erred when it struck the affidavit of her expert. Kelly contends that Stabler’s opinions on the elevator car’s threshold sill and positioning device, as well as his opinions establishing the theory of res ipsa loquitur, create genuine issues of material fact as to whéther Schindler and GEPA breached their duty to Kelly and whether the elevator’s alleged malfunction proximately caused her injuries. Schindler and GEPA argue that the foundations for Stabler’s opinions are unreliable.

The decision to admit or exclude evidence is within the discretion of the trial court, and this court reviews the trial court’s decision for an abuse of discretion. Lachenman v. Stice, 838 N.E.2d 451, 464 (Ind.Ct.App.2005), trans. denied. An abuse of discretion occurs if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it, or the reasonable, probable, and actual deductions to be drawn therefrom. Id.

Indiana Evidence Rule 702(a) provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

To establish an expert’s qualifications, only one characteristic — knowledge, skill, experience, training, or education — is required, so an affiant may qualify as an expert based on practical experience alone. In addition, the proponent of expert testimony must show that the subject matter is distinctly related to some scientific field, business, or profession beyond the knowledge of the average [layperson]. Where an expert’s testimony is based upon the expert’s skill or experience rather than on the application of scientific principles, the proponent of the testimony must only demonstrate that the subject matter is related to some field beyond the knowledge of lay persons and that the witness possesses sufficient skill, knowledge or experience in the field to assist the trier of fact.

Jackson v. Trancik, 953 N.E.2d 1087, 1092 (Ind.Ct.App.2011) (internal citations omitted). “It is apparent that Indiana Evidence Rule 702 assigns to the trial court a ‘gatekeeping function’ of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Lytle v. Ford Motor Co., 814 N.E.2d 301, 308 (Ind.Ct.App.2004), trans. denied.

Stabler’s opinion that the threshold sill on the elevator was loose on February 29, 2008 is based upon his inspection and Kelly’s testimony that the heel of her shoe slid into the gap between the elevator and the floor when the elevator moved upon her exit. Further, maintenance records from Schindler and GEPA show little to no inspection of the threshold sill in the elevator, especially in the timeframe before and immediately after Kelly’s incident. Schindler and GEPA’s argument goes more to the weight a fact-finder would give Stabler’s theory at trial instead of its admissibility.

As to the positioning device, Stabler relied on the fact that the elevator had three (3) incidents which he claims are similar to the one on February 29, 2008. One occurred April 7, 2007, where the elevator stopped six (6) inches above the 19th floor. Another occurred on January 20, 2008, where the elevator was stuck three (3) inches above the 19th floor. Finally, the last incident Stabler relied on occurred on March 3, 2008, where the elevator was stuck eight (8) inches above the 19th floor. Schindler and GEPA argue that these events are not similar because there is no evidence that anyone was injured in the same manner as Kelly.

“In cases involving the existence of an alleged dangerous condition[,] evidence of the occurrence of prior accidents of a similar character under the same circumstances is admissible to show both the existence of the dangerous condition and notice thereof.” State by and Through Ind. State Highway Comm’n v. Fair, 423 N.E.2d 738, 740 (Ind.Ct.App.1981). Such evidence is not admissible unless the plaintiff shows similarity between the essential conditions surrounding the prior accidents and the one at issue. Id. A proper foundation includes the general requirements of similarity of conditions, reasonable proximity in time, and avoidance of confusion of the issues. Id. at 741.

Here, the occurrences Stabler relies upon happened on the same elevator over a period of ten (10) months and one (1) month before, and three (3) days after Kelly’s fall on February 29, 2008. Stabler testified that these events were similar to Kelly’s incident because they were all incidents of the elevator not positioning correctly at the 19th floor and their cause was the motion control panel. While we agree with Schindler and GEPA that the incident three (3) days after Kelly’s fall would not be admissible to show notice, it is certainly relevant to showing a potential malfunction with the elevator. Stabler’s reliance on these incidents are further bolstered by maintenance records provided by Schindler, which reveal that the components Stabler believes caused the elevator’s malfunction were not regularly inspected by Schindler. Again, Schindler and GEPA’s arguments go more to the weight a fact-finder would give Stabler’s conclusions at a trial and not their admissibility. Therefore, Stabler’s reliance on these incidents to formulate his opinion was not improper.

Kelly further claims that Stabler’s testimony allows for the doctrine of res ipsa loquitur to apply in this case.

The doctrine [of res ipsa loquitur] literally means the thing speaks for itself. Res ipsa loquitur is a rule of evidence which permits an inference of negligence to be drawn based upon the surrounding facts and circumstances of the injury. The doctrine operates on the premise that negligence, like any other fact or condition, may be proved by circumstantial evidence. To create an inference of negligence, the plaintiff must establish: (1) that the injuring instrumentality was within the exclusive management and control of the defendant or its servants, and (2) that the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care. In determining if the doctrine is applicable, the question is whether the incident more probably resulted from [the] defendant’s negligence as opposed to another cause. To invoke res ipsa loquitur, the plaintiff must demonstrate that the defendant had exclusive control of the injuring instrumentality at the time of the injury. Exclusive control is an expansive concept[,] which focuses upon who has the right or power of control and the opportunity to exercise it. The existence of multiple defendants or the possibility of multiple causes does not automatically defeat the application of res ipsa loquitur.

Rector v. Oliver, 809 N.E.2d 887, 890 (Ind.Ct.App.2004) (internal citations and quotations omitted), trans. denied. Schindler and GEPA argue that res ipsa loquitur does not apply because Schindler was not in exclusive control of the elevator at the time of the incident and that Stabler’s testimony itself establishes that the doctrine cannot apply. We disagree.

First, we note that Schindler’s argument on control focuses on physical control of the elevator. As stated in Rector, control in regards to res ipsa loquitur is more than physical control; the focus is on “the right or power of control and the opportunity to exercise it.” Id. Here, where Kelly’s allegation is negligent inspection and maintenance of the elevator, the only party with the power or opportunity to inspect and maintain the motion controller and positioning device of the elevator is Schindler. At his deposition, Stabler testified that a well-maintained elevator can malfunction. However, Stabler’s ultimate conclusion is that Schindler did not reasonably inspect and maintain the elevator. Stabler’s education and experience allows him to opine that Kelly’s fall does not occur if Schindler reasonably inspects and maintains the elevator. Finally, notwithstanding Schindler and GEPA’s claim that Kelly simply stepped into the gap between the elevator and the 19th floor, the evidence in the record allows for the inference that the accident happened more probably from Schindler and GEPA’s negligence than any other cause. Res ipsa loquitur can apply in this case.

Kelly has laid the proper foundation for the admissibility of Stabler’s opinion under Evid. R. 702. “Once the admissibility of the expert’s opinion is established under Rule 702, then the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact.” Bennett v. Richmond, 960 N.E.2d 782, 786 (Ind.2012) (internal citation and quotation marks omitted). Accordingly, we find that the trial court abused its discretion in striking Stabler’s opinion.

Summary judgment is appropriate only where the designated evidence shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). Summary judgment is rarely appropriate in negligence cases. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person — one best applied by a jury after hearing all of the evidence.” Id. To prevail on a claim of negligence the plaintiff must show: (1) duty owed to the plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensa-ble injury proximately caused by defendant’s breach of duty. Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind.2007).

Here, both of the parties frame their argument around the position that expert testimony was required to advance Kelly’s claim and is dispositive to our analysis. Having found that the trial court should have admitted Stabler’s affidavit, Schindler and GEPA still assert that, even with Stabler’s affidavit, they were not placed on notice of the malfunction of the elevator and therefore are not subject to liability. Schindler claims that because it performed maintenance on the elevator a month prior to Kelly’s fall and was not notified of problems, it was not on notice of a defective motion controller. Again, we disagree.

“Whether a particular act or omission is a breach of duty is generally a question of fact for the jury. Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind.2003). It can be a question of law where the facts are undisputed and only a single inference can be drawn from those facts.” Id. With the allegations being negligent inspection and maintenance, a juror could reasonably conclude, based on Stabler’s opinion, that a more careful inspection of the elevator on the two incidents prior to Kelly’s fall would have revealed a defect in the motion controller. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

ROBB, C.J., and MAY, J., concur.

      . "This also does not mean that the plaintiff wins by default, for the doctrine of res ipsa loquitur simply allows an inference of negligence which may or may not be drawn by the trier of fact.” Rector, 809 N.E.2d at 890. The defendant can rebut this inference, like any other inference, with relevant evidence.