APPEAL FROM THE SALINE COUNTY CIRCUIT COURT. NO. 63DR-12-746-1. HONORABLE ROBERT HERZFELD, JUDGE.
REVERSED AND REMANDED.
Jensen Young & Houston, PLLC, by: Brent Houston, for appellant.
Alexander Law Firm, by: Shana D. Alexander, for appellee.
PHILLIP T. WHITEAKER, Judge. GLADWIN, C.J., and HIXSON, J., agree.
PHILLIP T. WHITEAKER, Judge
Taira Simmering appeals a Saline County Circuit Court order dismissing her motion for change of custody, challenging (1) the trial court's denial of her right to a hearing on the merits of the motion at the conclusion of an emergency hearing, (2) its failure to use the date of the last order of custody as the relevant date for change-of-custody purposes, and (3) its conclusion that there had not been a material change in circumstances. Because we find that the trial court improperly dismissed Taira's motion without a hearing on the merits, we reverse and remand for a full hearing on her motion for a change of custody.
The parties, Taira and Tadd Simmering, have a short-term but active litigation history. They were divorced in July 2012. The divorce decree provided for joint custody of the parties' only child, T.S., with Taira being the primary custodian. In May 2013, the trial court granted Tadd's request for a change of custody. The order gave Tadd sole custody of T.S., set child support, and provided that Taira's visitation would be at Tadd's discretion.
In July 2013, Taira filed a motion to modify visitation and child support. An agreed order was entered on October 21, 2013, modifying child support and providing for set visitation for Taira. Custody remained with Tadd.
Approximately one month later, Taira filed a " Verified Motion for Emergency Custody." This verified pleading requested custody of the child temporarily based on allegations of an emergency. It also sought custody of the child permanently based on allegations of a material change of circumstances.
An emergency hearing was held on December 4, 2013. Because Taira had been unable to serve Tadd with the motion, Tadd was not present at the hearing. Taira presented evidence regarding the alleged emergency facts. Specifically, Taira presented evidence (1) that Tadd was suffering from anger issues and had accosted her at a local restaurant; (2) that in October 2013, Tadd was intoxicated and had physically battered Taira in front of the child; (3) that Tadd was facing criminal charges as a result of the attack; (4) that Tadd had not maintained stable housing and was currently residing with a friend; (5) that Tadd had alcohol issues and had been arrested for DWI in May 2013 and was consuming alcohol while the child was present; and (6) that Tadd had been terminated from his employment and was currently unemployed. The trial court entered an emergency order granting custody to Taira. However, the court noted that it had a potential conflict and transferred the case to another division.
Another hearing on the emergency motion was held on December 18, 2013, in front of a different judge. Both parties were present and presented evidence ...