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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 APPELLANT: GREGORY PAUL KAUFFMAN South Bend, Indiana

ATTORNEY FOR APPELLEE: CHRISTOPHER C. CRAWFORD Garcia & Crawford, LLC Elkhart, Indiana

IN THE COURT OF APPEALS OF INDIANA
SIDNEY SEYMOUR, Appellant, vs. PENNY LANE, Appellee. ) ) ) ) ) ) ) ) )

No. 20A04-0601-CV-6

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Benjamin Pfaff, Judge Cause No. 20D01-9703-DR-222

October 18, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Sidney Seymour ("Father") appeals the trial court's grant of a protective order and emergency temporary custody of T.S. and J.S. (collectively, "the Children") to Penny Lane ("Mother") and the trial court's subsequent order modifying custody and awarding permanent custody of the Children to Mother. We affirm. ISSUES 1. Whether the trial court provided Father an adequate hearing on the protective order and emergency temporary custody order. 2. Whether the trial court abused its discretion by modifying custody and awarding permanent custody of the Children to Mother. 1 FACTS In January 1999, Father and Mother's marriage was dissolved, and Mother was given custody of the parties' three sons: B.S., born February 15, 1986; T.S., born December 7, 1992; and J.S., born June 28, 1995. In September 1999, Father filed a petition to modify custody. In October 1999, by agreement of the parties, Father was given custody of B.S., T.S., and J.S., and Mother was granted visitation. On October 16, 2003, Mother, pro se, filed a petition for a protective order on behalf of the Children and a minute entry requesting temporary emergency custody of the

Mother argues that we should dismiss Father's appeal because he did not file his Appellant's Brief in a timely manner following the completion and filing of the transcript. Our court docket indicates that an Amended Notice of Completion of Transcript was filed on April 25, 2006 and that Father filed his brief on May 25, 2006. Thus, our court records indicate that Father's brief was timely filed. See Ind. Appellate Rule 45(B)(1). Accordingly, we deny Mother's request to dismiss Father's appeal.

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Children. 2 In her protective order petition, Mother alleged that Father and his wife, Lisa Seymour ("Stepmother"), had engaged in three incidents of family violence 3 in which they had choked, punched, and kicked T.S. and had thrown T.S. against a wall, causing him to bleed. The trial court found that the "children may be in danger if notice is given to [F]ather before [the] hearing." 4 (Appellant's App. at 6). The trial court issued an Ex Parte Order for Protection, which was to expire on October 16, 2005 and prohibited Father from, among other things, threatening acts of family violence and from contacting or communicating with Mother. 5 The trial court also granted Mother's request for

temporary emergency custody of the Children and set a hearing. Thereafter, Mother filed a petition for modification of custody. On October 27, 2003, Father and Mother appeared in court for a hearing on the emergency custody order. Father requested an evidentiary hearing on the protective order, and the trial court set the hearing for November. On November 20, 2003, the trial court held a hearing on the protective order and the emergency custody order. Prior to the hearing, the trial judge met in his chambers with the parties, who informed him that there was a criminal investigation against Father and Stepmother regarding the allegations contained in the protective order petition. During the hearing, Father moved

Mother also requested temporary custody of B.S. despite the fact that he had been living with Mother since February 2003.
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Mother alleged that these incidents occurred in May 2003, September 2003, and April 2002.

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Pursuant to Ind. Code

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