holly irrelevant as to whether Illinois had jurisdiction to modify Father's child support obligation. And finally, the State
did have notice, inasmuch as the UIFSA Transmittal, which states that it is for enforcement and modification, bears the stamp of the Clark County Prosecutor's Office, Child Support Division. Thus, the trial court erred by reaching this conclusion.
In sum, we find that Indiana properly relinquished — and Illinois properly assumed — continuing, exclusive jurisdiction of the parties' child support arrangements before the Illinois trial court modified Father's obligation. Moreover, jurisdiction has not yet been properly reestablished in Indiana, and even when that occurs, the trial court will have authority only to issue a prospective modification. Therefore, the trial court herein erred by ruling that the Illinois proceedings were a nullity, and we reverse.
II. Ex Parte Conference
Finally, we turn to Mother's argument that her due process rights were violated as a result of the pre-hearing conference that took place in the judge's chambers. Our Supreme Court has explained the general rule prohibiting ex parte communication as follows:
Black's Law Dictionary defines
ex parte communications as "a generally prohibited communication between counsel and the court when opposing counsel is not present."
Black's Law Dictionary 597 (7th ed. 1999). As this definition suggests,
ex parte communications most often become an issue if a judge communicates outside the courtroom without disclosing those communications to everyone involved. These communications are prohibited.
See Ind. Judicial Conduct Canon 3(B)(8);
see, e.g., In re Kern, 774 N.E.2d 878, 879 (Ind. 2002) (judge participated in improper
ex parte communications when he communicated with and aided a father in a custody dispute without the knowledge of the mother);
Garrard v. Stone, 624 N.E.2d 68, 70 (Ind.Ct.App. 1993) (even testimony by a family therapist could not cure the error when a trial judge initiated communication with the therapist without informing either party). Due process
may be denied if the parties are not given the opportunity to hear and comment on all of the evidence considered in their case.
See Majors v. State, 773 N.E.2d 231, 234 (Ind. 2002).
Worman Enters., Inc. v. Boone Cnty. Solid Waste Mgmt. Dist., 805 N.E.2d 369, 374-75 (Ind. 2004).
The pre-hearing conference took place in the judge's chambers. Attending the conference were Magistrate Dawkins, Father's attorney, and the deputy prosecutor. Mother, who was pro se, asked to attend but was explicitly prohibited from doing so. The prosecutor was not representing Mother; indeed, the State was taking a position that was explicitly adverse to Mother's interests. It would be difficult to imagine a clearer example of prohibited ex parte communications, but the story does not end there. The conference lasted for thirty-six minutes — just eleven minutes shorter than the hearing itself. Evidence was discussed and documents changed hands that were never formally made part of the record — until Mother tracked down the documents herself and requested, after the fact, that they be included.
The State does not dispute the fact that the prosecutor was not representing Mother's interests in the proceeding. Instead, it argues that even if Mother's due process rights were violated, the violation was harmless "because this appeal has cured any deficiencies that occurred in the trial court at the hearing." State's Br. p. 10. Notwithstanding this astonishing argument, we simply note that we agree with Mother that "[b]eing deprived of the procedural due process rights of a meaningful opportunity to be heard is the `prejudice' that a party must show for purposes of the harmless error doctrine." Reply Br. p. 18 (emphasis original). That said, inasmuch as we have already found in Mother's favor on the merits of her appeal, we decline to reverse on this basis.
We hereby order that upon remand, this case be reassigned to a different judicial officer. Moreover, if, as seems likely to happen, jurisdiction of the child support issue is transferred from DuPage County back to Clark County, we order that a judicial officer other than Magistrate Dawkins continue to handle the case.
The judgment of the trial court is reversed and remanded for further proceedings and to be reassigned to a different judicial officer.
RILEY, J., and BAILEY, J., concur.