MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 27 2020, 9:03 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT Maggie L. Sadler Clark Quinn Moses Scott & Grahn, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher Nikoll, July 27, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-DR-2931 v. Appeal from the Marion Superior Court Miranda Nikoll, The Honorable Marc T. Appellee-Petitioner. Rothenberg, Judge The Honorable Kimberly D. Mattingly, Magistrate Trial Court Cause No. 49D07-0907-DR-31180
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 1 of 7 Case Summary [1] Christopher Nikoll (“Father”) appeals from the denial of his motion to correct
error, which challenged the denial of his petition for modification of a custody,
parenting time, and child support order entered contemporaneous with his
divorce from Miranda Nikoll (“Mother”). Father presents the sole issue of
whether the trial court abused its discretion by refusing to modify the parenting
time schedule.1 We affirm.
Facts and Procedural History [2] When the parties were divorced on February 19, 2013, the dissolution court
adopted the parties’ agreement to share legal custody of their then four-year-old
son (“Child”) and divide parenting time such that Father had four overnights
and Mother had three overnights each week. Father was designated the
custodial parent, and neither parent was ordered to pay child support.
[3] On January 28, 2019, Father filed his “Verified Petition to Modify Custody,
Parenting Time, Child Support and Other Child Related Matters.” (App. Vol.
II, pg. 14.) Father stated that Child was enrolled in Father’s residential school
district of Avon, and he proposed that Child stay with him during the school
week, and that Mother have parenting time on alternate weekends and during
1 Mother did not file an appellee’s brief. Pursuant to Indiana Rule of Appellate Procedure 45(D), “the appellee’s failure to file timely the appellee’s brief may result in reversal of the trial court or Administrative Agency on the appellant’s showing of prima facie error.”
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 2 of 7 alternate weeks of the summer school break. Father also requested that Mother
be ordered to pay $33.00 weekly in child support. The trial court conducted a
hearing on July 17, 2019, at which each parent testified briefly. Father also
submitted into evidence marked calendars depicting his overnights with Child
in 2018 and the first half of 2019, his paycheck stubs, and a child support
worksheet.
[4] On September 12, 2019, the trial court denied Father’s petition for
modification. He filed a motion to correct error, which was summarily denied
on November 13, 2019. Father now appeals.
Discussion and Decision [5] Generally, a trial court’s ruling on a motion to correct error is reviewed for an
abuse of discretion. Poiry v. City of New Haven, 113 N.E.3d 1236, 1239 (Ind. Ct.
App. 2018). A trial court abuses its discretion when its decision is clearly
against the logic and effect of the facts and circumstances before the court or if
the court has misinterpreted the law. Id.
[6] Here, the underlying controversy involves parenting time. Although Father
discusses a standard of review applicable to a modification of child custody, the
Chronological Case Summary shows that Father was designated the physical
custodian of Child and the parents were to share legal custody. Father’s
petition included within the caption a reference to custody, but the substantive
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 3 of 7 portion contains only a prayer for “modification of parenting time” and any
derivative change in child support. (App. Vol. II, pg. 15.)
[7] Indiana Code Section 31-17-4-2 provides in relevant part: “The trial court may
modify an order granting or denying parenting time whenever modification
would serve the best interests of the child.” We will review the parenting time
decision for an abuse of discretion, mindful that, in family law matters, the trial
court is afforded “latitude and deference,” as explained by our Indiana Supreme
Court:
Appellate courts “are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). “On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.” Id. “Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.”
Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).
[8] The existing parenting time order, pursuant to an agreement incorporated into
the dissolution decree, provides that Father is to have the physical care of Child
from Sunday at 6 p.m. until Thursday at 6 p.m. and Mother is to have Child in
her care from Thursday at 6 p.m. until Sunday at 6 p.m. At the hearing, Father
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 4 of 7 testified that the parenting time agreement had become “pretty much hearsay”
and the arrangement was “now Saturday at 3 to Wednesday at 3.” (Tr. at 19.)
[9] Father asserted multiple bases for modification. He testified briefly regarding
Mother’s perceived parental shortcomings, specifically, that she had permitted
her husband to spank Child when Child was a toddler, she did not provide
separate bedrooms for Child and Child’s younger half-sibling, she had not
informed Father of a lapse in Child’s health insurance, she attended less than all
of Child’s YMCA sports events, she had missed a pediatric appointment, and
she had overlooked a failure by Child (an honor roll student) to turn in one
particular assignment.
[10] But Father’s primary assertion was that Mother had forgone her exercise of
parenting time over the preceding eighteen months such that he had become a
de facto full-time custodian. He sought an order formally reducing Mother’s
parenting time and a corresponding order for child support consistent with
Mother having 96 to 100 overnights annually.
[11] Father introduced into evidence two calendars with notations of his overnights
with Child in 2018 and the first six months of 2019. According to the
notations, Father had consistently kept Child in his care approximately 21
nights per month (in contrast to 16 overnights ordered). He testified that both
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 27 2020, 9:03 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT Maggie L. Sadler Clark Quinn Moses Scott & Grahn, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher Nikoll, July 27, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-DR-2931 v. Appeal from the Marion Superior Court Miranda Nikoll, The Honorable Marc T. Appellee-Petitioner. Rothenberg, Judge The Honorable Kimberly D. Mattingly, Magistrate Trial Court Cause No. 49D07-0907-DR-31180
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 1 of 7 Case Summary [1] Christopher Nikoll (“Father”) appeals from the denial of his motion to correct
error, which challenged the denial of his petition for modification of a custody,
parenting time, and child support order entered contemporaneous with his
divorce from Miranda Nikoll (“Mother”). Father presents the sole issue of
whether the trial court abused its discretion by refusing to modify the parenting
time schedule.1 We affirm.
Facts and Procedural History [2] When the parties were divorced on February 19, 2013, the dissolution court
adopted the parties’ agreement to share legal custody of their then four-year-old
son (“Child”) and divide parenting time such that Father had four overnights
and Mother had three overnights each week. Father was designated the
custodial parent, and neither parent was ordered to pay child support.
[3] On January 28, 2019, Father filed his “Verified Petition to Modify Custody,
Parenting Time, Child Support and Other Child Related Matters.” (App. Vol.
II, pg. 14.) Father stated that Child was enrolled in Father’s residential school
district of Avon, and he proposed that Child stay with him during the school
week, and that Mother have parenting time on alternate weekends and during
1 Mother did not file an appellee’s brief. Pursuant to Indiana Rule of Appellate Procedure 45(D), “the appellee’s failure to file timely the appellee’s brief may result in reversal of the trial court or Administrative Agency on the appellant’s showing of prima facie error.”
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 2 of 7 alternate weeks of the summer school break. Father also requested that Mother
be ordered to pay $33.00 weekly in child support. The trial court conducted a
hearing on July 17, 2019, at which each parent testified briefly. Father also
submitted into evidence marked calendars depicting his overnights with Child
in 2018 and the first half of 2019, his paycheck stubs, and a child support
worksheet.
[4] On September 12, 2019, the trial court denied Father’s petition for
modification. He filed a motion to correct error, which was summarily denied
on November 13, 2019. Father now appeals.
Discussion and Decision [5] Generally, a trial court’s ruling on a motion to correct error is reviewed for an
abuse of discretion. Poiry v. City of New Haven, 113 N.E.3d 1236, 1239 (Ind. Ct.
App. 2018). A trial court abuses its discretion when its decision is clearly
against the logic and effect of the facts and circumstances before the court or if
the court has misinterpreted the law. Id.
[6] Here, the underlying controversy involves parenting time. Although Father
discusses a standard of review applicable to a modification of child custody, the
Chronological Case Summary shows that Father was designated the physical
custodian of Child and the parents were to share legal custody. Father’s
petition included within the caption a reference to custody, but the substantive
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 3 of 7 portion contains only a prayer for “modification of parenting time” and any
derivative change in child support. (App. Vol. II, pg. 15.)
[7] Indiana Code Section 31-17-4-2 provides in relevant part: “The trial court may
modify an order granting or denying parenting time whenever modification
would serve the best interests of the child.” We will review the parenting time
decision for an abuse of discretion, mindful that, in family law matters, the trial
court is afforded “latitude and deference,” as explained by our Indiana Supreme
Court:
Appellate courts “are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). “On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.” Id. “Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.”
Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).
[8] The existing parenting time order, pursuant to an agreement incorporated into
the dissolution decree, provides that Father is to have the physical care of Child
from Sunday at 6 p.m. until Thursday at 6 p.m. and Mother is to have Child in
her care from Thursday at 6 p.m. until Sunday at 6 p.m. At the hearing, Father
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 4 of 7 testified that the parenting time agreement had become “pretty much hearsay”
and the arrangement was “now Saturday at 3 to Wednesday at 3.” (Tr. at 19.)
[9] Father asserted multiple bases for modification. He testified briefly regarding
Mother’s perceived parental shortcomings, specifically, that she had permitted
her husband to spank Child when Child was a toddler, she did not provide
separate bedrooms for Child and Child’s younger half-sibling, she had not
informed Father of a lapse in Child’s health insurance, she attended less than all
of Child’s YMCA sports events, she had missed a pediatric appointment, and
she had overlooked a failure by Child (an honor roll student) to turn in one
particular assignment.
[10] But Father’s primary assertion was that Mother had forgone her exercise of
parenting time over the preceding eighteen months such that he had become a
de facto full-time custodian. He sought an order formally reducing Mother’s
parenting time and a corresponding order for child support consistent with
Mother having 96 to 100 overnights annually.
[11] Father introduced into evidence two calendars with notations of his overnights
with Child in 2018 and the first six months of 2019. According to the
notations, Father had consistently kept Child in his care approximately 21
nights per month (in contrast to 16 overnights ordered). He testified that both
parents had requested modifications in the past, but he was “asking for more
stability” and to avoid Child having to “bounce back and forth” during the
school week. (Id. at 23.)
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 5 of 7 [12] Mother testified and was asked about Father’s time notations. She did not
agree that it was an “entirely accurate” record but acknowledged that Father
had kept Child additional overnights. (Id. at 34.) According to Mother, she
had accepted Father’s offer to care for Child while Mother recovered from
health problems and surgeries. Mother testified that she had previously been
Child’s primary caretaker, and present for Child when he cried to see Father
and Father did not show up. However, both parents agreed that Father, a
veteran, had worked hard to overcome his post-traumatic stress disorder and
alcohol abuse that had affected his relationship with Child in the past. As of the
hearing date, Mother’s expressed wish was that the parental time “be equal” but
ultimately, she “just want[ed] [Child] to be happy” with either herself or Father.
(Id.) She agreed that stability was an appropriate consideration.
[13] Our review of the record discloses some allegations of temporary parental
failings, but ultimately the evidence suggests that Child benefits from significant
time in both homes. He is by all accounts well adjusted, and a straight A
student who participates in extracurricular activities. He has a younger sibling
in Mother’s home and reportedly enjoys spending time with the children of
Father’s girlfriend. There is no indication that he is placed at risk in either
parental home. Child attends school in Father’s school district of Avon.
Mother lives nearby in Plainfield, and there was no suggestion of transportation
difficulty or excessive school absences. By agreement of the parties, Father had
more time with Child than was court-ordered. Mother testified that this was
prompted, at least in part, by her medical needs. The trial court, having had the
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 6 of 7 benefit of hearing testimony from both parents, and perhaps mindful of the
adage “if it isn’t broken, don’t fix it,” concluded that it was not in Child’s best
interests to modify the existing order. We find no abuse of discretion.
Conclusion [14] The trial court did not abuse its discretion in denying Father’s motion to correct
error.
[15] Affirmed.
Baker, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020 Page 7 of 7