A.W. v. Z.B.

908 N.E.2d 1205, 2009 Ind. App. LEXIS 946
CourtIndiana Court of Appeals
DecidedJuly 9, 2009
DocketNo. 82A04-0811-JV-638
StatusPublished
Cited by1 cases

This text of 908 N.E.2d 1205 (A.W. v. Z.B.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.W. v. Z.B., 908 N.E.2d 1205, 2009 Ind. App. LEXIS 946 (Ind. Ct. App. 2009).

Opinion

OPINION

KIRSCH, Judge.

A.W. ("Mother") appeals from the trial court's order sentencing her for a previous finding of contempt and modifying custody. She raises the following two restated issues:

I. Whether the trial court erred when it modified custody by granting a change of custody to Z7.B. ("Father").
II. Whether the trial court abused its discretion in sentencing Mother to a two-year suspended sentence, which made her civil contempt sentence punitive in nature; and

We affirm, vacate, and remand.

FACTS AND PROCEDURAL HISTORY

Mother and Father have never been married, but have a child together, M.P.M.W., who was born on April 8, 2002. On September 20, 2005, Father filed a petition alleging paternity of M.P.M.W., and Mother admitted Father was the biological father of M.P.M.W. Mother was granted primary physical custody. Because Father and M.P.M.W. had not had a relationship prior to the filing of the paternity petition, a gradual schedule of unsupervised visitations was established.

In January 2007, Father filed a motion for contempt and petition for change of custody against Mother because she had withheld visitation rights. Father then filed another motion for contempt, and the trial court issued an order, finding Mother in contempt, issuing a writ for her arrest, and taking sentencing under advisement until Mother appeared in court. Father was also awarded sole custody with no visitation granted for Mother. In July 2007, the writ was served, and Mother was taken into in custody. Father filed a petition for change of custody, and after Mother was released from custody, she was allowed to have supervised visitation with M.P.M.W.

Over the next several months, Mother filed at least seven motions for contempt against Father regarding visitation. At one point, the trial court entered an order stating that law enforcement had the authority to require Father to turn M.P.M.W. over to Mother for summer visitation and modifying custody back to Mother. On September 24, 2008, the trial court issued an order finding Father to be in contempt of court for failing to notify Mother that he was taking M.P.M.W. out of state and for failing to timely turn the child over to Mother for summer visitation. Father received a thirty-day suspended [1208]*1208sentence on each offense for a total of sixty days suspended. The trial court also sentenced Mother for her previous finding of contempt to two years to be suspended on the condition that she not violate any of the trial court's orders in the future. The trial court also ordered that Father be awarded primary physical custody of M.P.M.W. Mother now appeals.

DISCUSSION AND DECISION

I. Custody Modification

"Custody modifications are reviewed for abuse of discretion, with a preference for granting latitude and deference to trial court judges in family law matters." In re Marriage of Kenda & Pleskovic, 873 N.E.2d 729, 736 (Ind.Ct.App.2007), trans. denied. We will set aside judgments on custody modifications only when they are clearly erroneous, and we will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment. Id. at 7837. Mother is appealing from a decision in which the trial court entered specific findings of fact and conclusions thereon. See Ind. Trial Rule 52(A). Therefore, we must first determine whether the evidence supports the findings and, second, whether the findings support the judgment. In re Marriage of Kenda & Pleskovic, 873 N.E.2d at 737.

Mother argues that the trial court erred when it modified custody to award Father sole physical custody of M.P.M.W. She specifically contends that the trial court erred because it based its decision to modify custody "in substantial part upon the premise of punishing [Mother] for absconding with the parties' child to the State of Michigan." Appellant's Br. at 17. To support her contention, she cites to language used by the trial court in its order, where it stated that Mother's contempt sentence was only suspended due in part to fact that she "was indirectly punished for her actions since the court suspended her visitation for a significant period of time" when M.P.M.W. was returned to Indiana. Id. (quoting Appellant's App. at 37). She also cites to language where the trial court cautioned Father that he risked having his visitation or custody suspended, as Mother had, for violating the court's order. Id. Further, Mother points to language that refers to her suspended contempt sentence and the trial court's ability to punish her if she absconds with the child again. Id. at 18.

Under Indiana Code section 31-17-2-21, a trial court may not modify a child eustody order unless modification is in the child's best interests and a substantial change has occurred. In re Marriage of Kenda & Pleskovic, 873 N.E.2d at 737. Generally, cooperation or lack thereof is not appropriate grounds for switching custody. Pierce v. Pierce, 620 N.E.2d 726, 730 (Ind.Ct.App.1993), trans denied (1994). Were a court to consider such in its determination of a custody modification, it would impermissibly punish a parent for noncompliance with a custody agreement. Id.

Here, although the trial court did include language regarding punishing Mother for violating the trial court's previous order and absconding the state with M.P.M.W., it also noted the following factors that led to its decision that a substantial change in cireumstances had occurred and that it was in the best interest of M.P.M.W. that Father be awarded custody:

The Mother absconded with the child to the State of Michigan and deprived the Father and their daughter of their relationship.
[1209]*1209The Mother dyed the hair of her child while in Michigan presumably to avoid being found.
The Mother withdrew the child from daycare and didn't re-enroll the child while in Michigan.
The Mother skipped a dentist appointment by going to Michigan.
The child's teeth were in an extremely deplorable condition when this took place and later the child had to have oral surgery due to the condition of her teeth. The court attributes the child's dental problems, in part, to the neglect of the Mother. The child confirmed this when speaking with the court by indicating and demonstrating that she would eat handfuls of sugar at a time and rarely brushed her teeth while at the Mother's home.
The Mother has reported the Father to Child Protective Services on more than one occasion without merit and as the court previously ruled this includes the allegation whereby the Father was watching an X-rated [movie] while in bed with the child. Again, the child confirmed to the court that this was a lie. The manner in which the child did this, by walking over to the judge and cupping her mouth and whispering that she lied added credibility to this statement.
The child's immunizations were not kept up to date by the Mother.

Appellant's App. at 38-89. We therefore conclude that the trial court based its decision on proper considerations, and it did not err in its decision to modify custody to Father.

II.

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Related

In Re Paternity of MPMW
908 N.E.2d 1205 (Indiana Court of Appeals, 2009)

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Bluebook (online)
908 N.E.2d 1205, 2009 Ind. App. LEXIS 946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aw-v-zb-indctapp-2009.