Corissa Rose Halcomb v. Ethan Barrow (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 4, 2020
• Docket: 19A-JP-2897
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jun 04 2020, 11:18 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose CLERK Indiana Supreme Court of establishing the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Carl P. Lamb Kendra L. Gierdingen Mathew L. Fox Lisa A. Anderson Carl Lamb & Associates Bloomington, Indiana Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA

Corissa Rose Halcomb, June 4, 2020

Appellant-Petitioner, Court of Appeals Case No. 19A-JP-2897 v. Appeal from the Monroe Circuit Court Ethan Barrow, The Honorable Stephen R. Galvin, Judge Appellee-Respondent. The Honorable Bret Raper, Commissioner Trial Court Cause No. 53C07-1808-JP-618

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 1 of 10 STATEMENT OF THE CASE Appellant-Petitioner, Corrisa Halcomb (Mother), appeals the trial court’s

Order, clarifying parenting time in favor of Appellee-Respondent, Ethan

Barrow (Father).

We affirm.

ISSUE Mother presents two issues on appeal, which we consolidate and restate as the

following single issue: Whether the trial court erred by issuing a clarifying

order as to Father’s parenting time.

FACTS AND PROCEDURAL HISTORY The parties were never married to each other, but they have one child together,

E.H.B. (Child), who was born on August 2, 2018. On August 18, 2018, Father

filed a verified petition to establish paternity, child support, custody, and

parenting time. On December 3, 2018, the parties entered into a partial

dispositional order (Dispositional Order), which provided among other things,

that Father was the biological parent to Child, and Father’s parenting time with

Child would be in accordance with the Indiana Parenting Time Guidelines

(IPTG).

A final dispositional hearing was held on March 15, 2019. At the hearing,

Father requested an increase of parenting time. Specifically, Father sought an

additional overnight every week either on Friday or Saturday, and two

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 2 of 10 additional midweek visits. Mother was opposed to the change, and she argued

that Child needed to be a little bit older before having overnight parenting time

visits with Father. On April 15, 2019, the trial court granted Father’s request to

additional overnight parenting time, and it entered the following pertinent

findings:

4. Father’s request for additional parenting time is granted, and in that regard, Father’s parenting time shall include overnight parenting time, beginning immediately, for one (1) twenty-four (24) hour period each week, in addition to the additional parenting time provided by the Indiana Parenting Time Guidelines, for [Child’s] age. All ancillary provisions of the Indiana Parenting Time Guidelines shall apply.

5. Unless the parties otherwise agree, Father’s overnight parenting time shall occur on alternating weeks, the first Friday/Saturday and the following week on Saturday/Sunday.

6. Unless otherwise agreed by the parties, holiday parenting time shall occur in accordance with the Indiana Parenting Time Guidelines, with the exception of what would be school breaks/vacations including summer break until the child attends school. Father’s holiday parenting time in accordance with the Indiana Parenting Time Guidelines and shall include overnight parenting time.

(Appellant’s App. Vol. II, p. 35).

On October 14, 2019, Father filed a motion for rule to show cause, asserting

that Mother had denied him one of his weekly overnight visits in September.

On November 6, 2019, the trial court conducted a hearing on Father’s contempt

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 3 of 10 motion against Mother. Mother’s counsel explained that the parties had

resolved Father’s contempt motion and that as part of that resolution, Father

would receive two additional four-and-a-half hour periods of parenting time

stacked onto his weekly overnight twenty-four-hour parenting time with Child.

The trial court inquired if there were other pending issues to be resolved, and

Mother’s counsel stated there were issues pertaining to Child’s surname.

Father’s counsel then argued that it was unclear from the April 2019 Order if he

was entitled to have two twenty-four-hour overnights in one week during his

holiday parenting time. The trial court responded that the issue of Child’s

surname had been resolved and would not be readdressed. However, the trial

court instructed the parties to detail the specific provisions of the April 2019

Order that needed clarification, and it further instructed the parties to submit

their proposed interpretations on or before November 13, 2019. The parties

timely filed their proposed interpretation. Father’s submissions as to whether

he was permitted to have two overnights in one week in the event of a holiday

were as follows:

5. Father requests that the [c]ourt clarify the [April 2019] Order to specifically include a provision that provides Father’s overnight holiday parenting time shall be for a period of twenty- four (24) hours.

****

9. Father also requests that the [c]ourt clarify the [April 2019] Order and specifically include a provision that Father may have

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 4 of 10 two consecutive overnights as a result of his regular parenting time and holiday parenting time.

10. For example, Father currently exercises regular parenting time on alternative Fridays and Saturdays, for one twenty-four (24) hour period. Several holidays fall on Sundays and Mondays, and as a result of his regular parenting time plus the holiday time that Father was awarded, the [April 2019] Order should specify that Father may have two consecutive overnights when exercising his parenting time (for example, Father’s regular parenting time would be on Friday-Saturday and then Father’s [d]ay parenting time continue through Sunday at 5:30 p.m.).

(Appellant’s App. Vol. II, pp. 48-49). Mother’s interpretation of the April 2019

Order was as follows:

3. That pursuant to and in accordance with [the April 2019] Order, the [c]ourt awarded the Father the following parenting time: three (3) times per week, which currently is being typically exercised as follows: - Tuesday from 5:30 p.m. until 8:30 p.m./Thursday from 5:30 pm. until 8:30 p.m./then the rotating weekend—Fri/Sat or Sat/Sun—for one twenty-four (24) hour visitation.

4. Mother believes that Father incorrectly interprets the [April 2019] Order, to mean that Father’s overnight holiday parenting time is for a period of twenty-four (24) hours, that Father’s holiday parenting time is to be from 5:30 p.m. the day before the holiday until 5:30 p.m. on the holiday, and that the Father’s parenting time is in addition to his regular parenting time meaning Father is permitted to have two (2) overnights in one (1) week in the event of a holiday.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 5 of 10 ****

7. The minor child is currently fifteen (15) months old and based on Section II (C)(3)(B) of the IPTGs the child is in the thirteen (13) to eighteen month (18) category which states in relevant part:

[] (2) All scheduled holidays for eight (8) hours. The child is to be returned at least one (1) hour before evening bedtime.

(3) Overnight if the noncustodial parent has exercised regular care responsibilities for the child but not to exceed one (1) [24-hour] period per week. []

9. The Commentary for Section II, C of the IPTGs recognizes that issues of overnights cause for the [toddler’s] wellbeing [sic], explaining:

Overnight contact between parents and very young children can provide opportunities for them to grow as a family. At the same time, when very young children experience sudden changes in their nighttime care routines, especially when these sudden changes include separation from the usual caretaker, they can become frightening and unhappy. Under these circumstances, they may find it difficult to relax and thrive, even when offered excellent care.

16. The [c]ourt’s April 15, 2019 Order, is consistent with the language of Section II (C)(3)(B)(3) of the IPTGs, and Mother’s position here, that Father’s parenting time is not to exceed one (1) 24 hour period per week.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 6 of 10 (Appellant’s App. Vol. II, pp. 54-55). On November 18, 2019, the trial court

issued a Clarification Order agreeing with Father that the April 2019 Order

allows him to have two overnights in one week in the event of a holiday.

Mother now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION The Indiana Trial Rules do not provide for a motion for clarification. Hedrick v.

Gilbert, 17 N.E.3d 321, 326 (Ind. Ct. App. 2014). In the Hedrick case, Hedrick

argued that Gilbert’s motion for clarification was “tantamount to a motion to

correct error.” Id. We agreed and explained that if we were to treat a motion

for clarification as something other than a motion to correct error, practitioners

would have no guidance on what such a motion should be, its timelines, or its

possible end result. Id. We further explained that although Gilbert argued that

she had merely asked for certain technical clarifications, “nothing in the rules

distinguishes a request for a technical clarification from a request for a more

substantive change, and nothing in the rules provides for a motion to correct a

‘technical error’ as opposed to a motion to correct any other error.” Id. We

concluded that “it would elevate form over substance to treat a ‘motion to

clarify’ as something other than a motion to correct error.” Id. For these

reasons, we treat Father’s oral motion seeking clarification of the April 2019

Order as a motion to correct error.

Indiana Trial Rule 59 provides that a motion to correct error must be filed no

later than thirty days after entry of final judgment. An untimely motion to

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 7 of 10 correct error “renders the trial court’s ruling thereon a nullity” and necessarily

results in a belated Notice of Appeal. Wyrick v. Gentry, 796 N.E.2d 342, 345

(Ind. Ct. App. 2003). A timely Notice of Appeal is a prerequisite to our court

acquiring jurisdiction over a case; therefore, if a party files an untimely motion

to correct error, he forfeits his right to appeal. B.C., Jr. v. C.A., 5 N.E.3d 473,

477 (Ind. Ct. App. 2014).

Mother claims that Father’s motion to clarify the April 2019 Order as to

whether he was entitled to an additional overnight parenting time during the

holiday was belatedly filed more than thirty days after final judgment. We

agree with Mother’s contention, however, it is also long-settled that, even after

final judgment has been entered and the time to file a motion to correct error or

a notice of appeal has expired, a trial court retains jurisdiction to interpret,

clarify, or enforce a prior order. DeVoe v. DeVoe, 531 N.E.2d 1200, 1202 (Ind.

Ct. App. 1988).

Mother argues that the April 2019 Order was clear, and it did not need any

further clarification seven months after it was issued. Contrary to her assertion,

as part of the contempt proceedings against Mother after she had denied Father

his weekly overnight parenting time, it became apparent that the parties had

divergent interpretations of the April 2019 Order as to whether Father was

permitted to have two overnights in one week in the event of a holiday.

A judgment is said to be ambiguous when it would lead two reasonable persons

to different conclusions as to its effect and meaning. Gilbert v. Gilbert, 777

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 8 of 10 N.E.2d 785, 790 (Ind. Ct. App. 2002). If a judgment is ambiguous, we

determine its meaning by examining the entire judgment. Id. at 791. Particular

words cannot be isolated from the judgment but must be considered as part of

the whole. Id. We attempt to read the provisions of the judgment so as to

render all provisions effective and not merely surplusage. Id. In the

construction of a judgment, the reviewing court may look at the entire record,

including but not limited to the complaint, findings, argument, and evidence, to

ascertain its meaning and effect. Id. Judgments should be liberally construed

so to make them serviceable and not useless. Id.

In its April 2019 Order, the trial court expressed that it had intended for Father

to have holiday parenting time in accordance with the IPTG which would also

“include overnight parenting time” during the holidays. (Appellant’s App. Vol.

II, p. 35). After the parties submitted their conflicting proposals as to whether

Father was entitled to have two overnights in one week in the event of a

holiday, the trial court issued the following Clarification Order.

5. Paragraph 6 [of the April 2019 Order] states:

Unless otherwise agreed by the parties, holiday parenting time shall occur in accordance with the [IPTG], with the exception of what would be school breaks/vacations including summer break until the child attends school. Father’s holiday parenting time in accordance with the [IPTG] and shall include overnight parenting time.

6. The court’s intent as to Paragraph 6 is to provide Father with additional holiday parenting time than would otherwise be provided given the child’s present age. Thus, to clarify: Father’s

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 9 of 10 holiday parenting time shall occur in accordance with the [IPTG] for a child at least (3) years of age, but not yet five (5) years of age.

(Appellant’s App. Vol. II, p. 16) (emphasis added). “It is imperative that a trial

court clear up an ambiguity in the language of its judgment so that the parties

may conform their conduct to that intended by the trial court.” Flynn v. Barker,

450 N.E.2d 1008, 1009 (Ind. Ct. App. 1983), cert. denied, 469 U.S. 934 (1984).

In this case, there can be no dispute that the intent of Paragraph 6 of the April

2019 Order was to allow Father to have two overnights in one week in the

event of a holiday. The trial court’s Clarification Order again explained that

position, and since the trial court had jurisdiction to clarify its previous order,

the trial court did not err in issuing the Clarification Order which only

reiterated a similar position. Accordingly, we affirm the trial court.

CONCLUSION Based on the foregoing, we conclude that the trial court did not abuse its

discretion by issuing the Clarification Order.

Affirmed.

Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-JP-2897 | June 4, 2020 Page 10 of 10