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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 APPELLANTS: CHRISTOPHER A. CAGE Anderson, Indiana

ATTORNEY FOR APPELLEES: DOUGLAS R. LONG Anderson, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOHN SMITH and PIA SMITH, Appellants, vs. LISBETH SKAALERUD GILLETTE and RICHARD GILLETTE, Appellees. ) ) ) ) ) ) ) ) ) )

No.

48A02-0606-CV-539

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-0512-GU-65

April 19, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE John Smith ("Father") and Pia Smith ("Mother") (collectively "the Smiths") appeal from the trial court's order establishing the permanent guardianship of Richard Gillette ("Richard") and Lisbeth Skaalerud-Gillette ("Lisbeth") (collectively "the Gillettes") over the Smiths' three minor children. The Smiths present two issues for our review: 1. Whether the trial court abused its discretion when it granted the Gillettes' request that the regular judge preside over this matter. Whether the trial court abused its discretion when it granted the Gillettes' petition for permanent guardianship.

2.

We affirm. FACTS AND PROCEDURAL HISTORY The Smiths are the parents of three minor children: Jo.S., S.S., and Ja.S. Lisbeth is Mother's sister. In approximately November 2005, Father telephoned Lisbeth and asked for help with the children. Mother had been incapacitated with health problems, and Father was finding it difficult to run the household without her assistance. Accordingly, the Gillettes, who live in Texas, traveled to the Smiths' home in Indiana and offered to take the children back to Texas with them until Mother was feeling better. Mother signed a consent form acknowledging her desire that the Gillettes have a temporary guardianship over the children, but Father initially refused to sign a consent form. Ultimately, following an agreed entry submitted by the parties, including Father's consent, the trial court granted a temporary guardianship on December 9, 2005.

2

On February 14, 2006, the trial court conducted a hearing on the Gillettes' petition for a permanent guardianship over the children. Senior Judge George Pancol, serving as Master Commissioner, presided over that hearing. Ann Bang, mother of both Pia and Lisbeth, testified that in her opinion the Gillettes should be granted a permanent guardianship over the children. Bang described the differences in the children's lives between living with Mother and Father and living with the Gillettes. Bang concluded that the children should continue living with the Gillettes. The children's godmother, Jacquelyn Collin, also testified that the Gillettes should be granted a permanent guardianship over the children. After taking the matter under advisement, the trial court issued an order on February 21, 2006, granting the permanent guardianship. Master Commissioner Pancol signed that order, and Judge Thomas Newman, Jr. approved it. However, on February 28, 2006, the trial court set aside that order and set the matter for another hearing on March 15, 2006. 1 At that hearing, Detective David

Callahan with the Madison County Sheriff's Department testified that he was investigating a claim of child molest against Father. After taking the matter under advisement, the trial court denied the permanent guardianship on April 28. On May 10, 2006, the Gillettes filed a "Motion to Re-Open the Evidence and Motion to Set Aside Order of April 28th, 2006 Until Further Hearing." In particular, the Gillettes asked the trial court to consider testimony given by the children's therapist, Kimberly Abernethy. The trial court granted the Gillettes' motion, 2 setting aside its April 28th Order and "re-

1

Again, Master Commissioner Pancol signed that order, and Judge Newman approved it.

Master Commissioner Pancol signed that order as "Senior Judge," and Judge Newman did not approve the order. Appellants' App. at 68.

2

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opening" the evidence in the matter. Appellants' App. at 67. However, the trial court also ordered that the Gillettes were to "return the children to Anderson/Madison County, Indiana no more than one week after the end of their school year." Id. On May 23, 2006, the Gillettes filed a "Motion for Regular Judge to Review Order of May 18th[,] 2006[,] and Request for Immediate Order and Hearing." The Smiths objected to that Motion, but the Smiths stated that should Judge Newman review Master Commissioner Pancol's findings, they requested that "the Court review all of the evidence of [the] one and one half day trial prior to making any determination." Id. at 72. On June 16, 2006, the trial court held a hearing on the Gillettes' Motion, and Judge Newman presided. In addition to the evidence the parties presented at the hearing, Judge Newman interviewed the children in his chambers. After taking the matter under advisement, on June 20, 2006, Judge Newman issued an order granting the permanent guardianship. This appeal ensued. DISCUSSION AND DECISION Issue One: Regular Judge The Smiths first contend that the trial court abused its discretion when it granted the Gillettes' motion for the regular judge to preside over the matter. In particular, the Smiths maintain that Judge Newman did not have the authority to "review" Senior Judge Pancol's April 28, 2006, order denying the permanent guardianship. 3 But the Smiths'

Senior Judge Pancol had signed all of the previous orders as Master Commissioner, with Judge Newman approving those orders. It is well-settled that where a party requests an elected judge to preside over a proceeding instead of a master commissioner, that request shall be granted. See Ind. Code

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