Lee T. Myers v. Sandra Brown

This case involves the third and fourth appeals (consolidated) of successive petitions to modify custody. The mother and father of the child at issue were never married. The mother was designated the primary residential parent for the child, and the father was given designated parenting time and ordered to pay child support. In 2002, the father filed a petition to modify custody. The trial court denied the father’s petition, and the decision was affirmed by this Court (“E.J.M. I”). During the pendency of that appeal, the father filed a second petition for a change of custody based on facts that arose after his first petition was denied. A hearing on this petition was conducted shortly after this Court issued its decision in E.J.M. I. A juvenile court judge held that, though he might otherwise change custody to the father, he was bound by the appellate decision in E.J.M. I to give final decision-making authority to the mother. Nevertheless, joint custody was ordered. The father now appeals that decision. Shortly after that, the father filed another petition to modify custody, based on facts that arose after the decision to award joint custody. Another juvenile court judge conducted a hearing, heard testimony, and reviewed the entire record. After doing so, the juvenile court judge strongly criticized the father’s litigiousness and, in light of the pending appeal of the joint custody award, dismissed the father’s petition for lack of jurisdiction. The father appeals that decision as well. Both appeals were consolidated, but the appeal was dismissed due to a procedural defect (E.J.M. II). The procedural defect was cured, and we now hear the consolidated appeal. We reverse the conclusion by both juvenile court judges, holding that the trial court has jurisdiction and authority to modify custody even while an appeal is pending, so long as the modification is based on new facts and changed conditions that arose after the trial court judgment that is the subject of the appeal. The cause is remanded for a decision on the father’s petitions to modify custody.