MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 07 2016, 9:09 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Andrea L. Ciobanu David A. Brooks Alex Beeman Brooks Law Office, P.C. Ciobanu Law, P.C. Valparaiso, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Heather Renee Czahor, April 7, 2016 Appellant-Respondent, Court of Appeals Case No. 66A04-1508-DR-1174 v. Appeal from the Pulaski Circuit Court Eric Anthony Czahor, The Honorable Robert B. Mrzlack, Appellee-Petitioner. Special Judge Trial Court Cause No. 66C01-1110-DR-58
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 1 of 9 Case Summary [1] Eric Anthony Czahor (“Father”) and Heather Renee Czahor (“Mother”) agreed
to share custody of their three children and alternate parenting time on a weekly
basis. But when Mother’s boyfriend strangled her, Father sought to modify
custody and parenting time. The parties, however, reached an agreement that
Mother’s boyfriend could not have any contact with the children, and the trial
court entered an order to that effect. Soon thereafter, Mother sought to remove
the restriction so that her boyfriend could be in the presence of her children.
[2] To the extent Mother seeks to collaterally attack the imposition of the
restriction that her boyfriend cannot have any contact with her children, she
agreed to that specific restriction and cannot do so. And to the extent Mother
seeks to modify the child-custody order to remove this agreed-upon restriction,
the trial court did not commit clear error in determining that it was in the best
interests of the children that Mother’s boyfriend not have any contact with them
while he was on probation for attacking Mother. We therefore affirm the trial
court.
Facts and Procedural History [3] In 2011 Father filed a petition to dissolve his marriage to Mother. Father and
Mother ultimately reached an agreement to share custody of their three minor
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 2 of 9 children and to alternate parenting time on a weekly basis.1 Appellant’s App. p.
3, 21. The trial court approved the parties’ agreement and dissolved their
marriage in February 2013.
[4] Mother began dating Dale Nester shortly after she and Father separated, and
she later moved in with Nester. During Mother’s weeks, the children stayed
with Mother and Nester. In October 2014, Nester, who was drunk, and Mother
got into an argument at Nester’s auto shop. Nester choked Mother until she
passed out. Mother thought she was going to die. Jeremy Rehn was present
during the incident and had to pull Nester off of Mother. Nester then left the
shop. Mother talked to Nester on the phone, and he said that he was going to
kill them all. Nester went to Rehn’s house, where he fired two shots into
Rehn’s garage.
[5] The State charged Nester with Level 5 felony intimidation (Rehn), Level 6
felony strangulation (Mother), and Class A misdemeanor domestic battery
(Mother). Nester later pled guilty to Level 6 felony intimidation and Class A
misdemeanor domestic battery, and the trial court sentenced him to an
aggregate term of two-and-a-half years, with six months executed through home
detention and two years suspended.
[6] Shortly after the incident, Father filed a motion for emergency change of
custody and modification of parenting time because he believed that Mother
1 Neither the parties’ agreement nor the dissolution decree are included in the record on appeal.
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 3 of 9 was “not taking appropriate actions in regards to the physical altercation and
shooting” and that “the children would be in danger in her care.” Appellant’s
App. p. 13-14. In January 2015, Mother and Father—each represented by
counsel—agreed in writing to modify the existing child-custody order.
Specifically, Father agreed to withdraw his motion for change of custody and
modification of parenting time, and Mother and Father “agree[d] that Dale
Nester shall have no contact with the minor children . . . .” Id. at 16 (Agreed
Modification). The trial court entered an order to that effect in February 2015.
Id. at 18 (Agreed Order).
[7] In June 2015—less than five months after Mother and Father agreed to the
modification and when Nester started the probation portion of his sentence—
Mother filed a motion to modify the agreed order to allow the parties’ children
“to be in the presence of Dale Nester . . . .” Id. at 20. At the hearing, Mother
argued that the children were not present during the incident and were not
harmed and that Nester had completed anger-management classes. Following
the hearing, the trial court denied Mother’s motion, finding that it was “in the
best interests of the minor children of the parties that Dale Nester have no
contact with the minor children while he is serving his sentence for Intimidation
and Domestic Battery, and pending further order of the Court.” Id. at 23. The
court said that it could revisit the issue when Nester’s probation ended. Tr. p.
73-74.
[8] Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 4 of 9 Discussion and Decision [9] Mother appeals the trial court’s denial of her motion to modify the agreed
order, which provided that Nester could not have any contact with her children.
The trial court entered findings of fact and conclusions in its order denying
Mother’s motion. Pursuant to Indiana Trial Rule 52(A), a reviewing court shall
not set aside the findings or judgment unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the credibility of the
witnesses. Steele-Giri v. Steele, No. 45S04-1512-DR-00682 (Ind. Mar. 15, 2016).
Where, as here, a trial court enters findings sua sponte, the appellate court
reviews issues covered by the findings with a two-tiered standard of review that
asks whether the evidence supports the findings, and whether the findings
support the judgment. Id.
[10] Specifically, Mother argues that the trial court “did not make the requisite
findings to support a parenting time restriction in this case.” Appellant’s Br. p.
14; see Ind. Code § 31-17-4-2 (“[T]he court shall not restrict a parent’s parenting
time rights unless the court finds that the parenting time might endanger the child’s
physical health or significantly impair the child’s emotional development.” (emphasis
added)).2 This appears to be a collateral attack on the part of the agreed order
that provides “Dale Nester shall have no contact with the . . . minor children.”
2 Although Mother agreed that Nester could not have any contact with her children, she does not explain how this restricted her parenting “time.” As Mother testified at the hearing, she still had her children every other week, but she did not stay with Nester that week.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 07 2016, 9:09 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Andrea L. Ciobanu David A. Brooks Alex Beeman Brooks Law Office, P.C. Ciobanu Law, P.C. Valparaiso, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Heather Renee Czahor, April 7, 2016 Appellant-Respondent, Court of Appeals Case No. 66A04-1508-DR-1174 v. Appeal from the Pulaski Circuit Court Eric Anthony Czahor, The Honorable Robert B. Mrzlack, Appellee-Petitioner. Special Judge Trial Court Cause No. 66C01-1110-DR-58
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 1 of 9 Case Summary [1] Eric Anthony Czahor (“Father”) and Heather Renee Czahor (“Mother”) agreed
to share custody of their three children and alternate parenting time on a weekly
basis. But when Mother’s boyfriend strangled her, Father sought to modify
custody and parenting time. The parties, however, reached an agreement that
Mother’s boyfriend could not have any contact with the children, and the trial
court entered an order to that effect. Soon thereafter, Mother sought to remove
the restriction so that her boyfriend could be in the presence of her children.
[2] To the extent Mother seeks to collaterally attack the imposition of the
restriction that her boyfriend cannot have any contact with her children, she
agreed to that specific restriction and cannot do so. And to the extent Mother
seeks to modify the child-custody order to remove this agreed-upon restriction,
the trial court did not commit clear error in determining that it was in the best
interests of the children that Mother’s boyfriend not have any contact with them
while he was on probation for attacking Mother. We therefore affirm the trial
court.
Facts and Procedural History [3] In 2011 Father filed a petition to dissolve his marriage to Mother. Father and
Mother ultimately reached an agreement to share custody of their three minor
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 2 of 9 children and to alternate parenting time on a weekly basis.1 Appellant’s App. p.
3, 21. The trial court approved the parties’ agreement and dissolved their
marriage in February 2013.
[4] Mother began dating Dale Nester shortly after she and Father separated, and
she later moved in with Nester. During Mother’s weeks, the children stayed
with Mother and Nester. In October 2014, Nester, who was drunk, and Mother
got into an argument at Nester’s auto shop. Nester choked Mother until she
passed out. Mother thought she was going to die. Jeremy Rehn was present
during the incident and had to pull Nester off of Mother. Nester then left the
shop. Mother talked to Nester on the phone, and he said that he was going to
kill them all. Nester went to Rehn’s house, where he fired two shots into
Rehn’s garage.
[5] The State charged Nester with Level 5 felony intimidation (Rehn), Level 6
felony strangulation (Mother), and Class A misdemeanor domestic battery
(Mother). Nester later pled guilty to Level 6 felony intimidation and Class A
misdemeanor domestic battery, and the trial court sentenced him to an
aggregate term of two-and-a-half years, with six months executed through home
detention and two years suspended.
[6] Shortly after the incident, Father filed a motion for emergency change of
custody and modification of parenting time because he believed that Mother
1 Neither the parties’ agreement nor the dissolution decree are included in the record on appeal.
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 3 of 9 was “not taking appropriate actions in regards to the physical altercation and
shooting” and that “the children would be in danger in her care.” Appellant’s
App. p. 13-14. In January 2015, Mother and Father—each represented by
counsel—agreed in writing to modify the existing child-custody order.
Specifically, Father agreed to withdraw his motion for change of custody and
modification of parenting time, and Mother and Father “agree[d] that Dale
Nester shall have no contact with the minor children . . . .” Id. at 16 (Agreed
Modification). The trial court entered an order to that effect in February 2015.
Id. at 18 (Agreed Order).
[7] In June 2015—less than five months after Mother and Father agreed to the
modification and when Nester started the probation portion of his sentence—
Mother filed a motion to modify the agreed order to allow the parties’ children
“to be in the presence of Dale Nester . . . .” Id. at 20. At the hearing, Mother
argued that the children were not present during the incident and were not
harmed and that Nester had completed anger-management classes. Following
the hearing, the trial court denied Mother’s motion, finding that it was “in the
best interests of the minor children of the parties that Dale Nester have no
contact with the minor children while he is serving his sentence for Intimidation
and Domestic Battery, and pending further order of the Court.” Id. at 23. The
court said that it could revisit the issue when Nester’s probation ended. Tr. p.
73-74.
[8] Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 4 of 9 Discussion and Decision [9] Mother appeals the trial court’s denial of her motion to modify the agreed
order, which provided that Nester could not have any contact with her children.
The trial court entered findings of fact and conclusions in its order denying
Mother’s motion. Pursuant to Indiana Trial Rule 52(A), a reviewing court shall
not set aside the findings or judgment unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the credibility of the
witnesses. Steele-Giri v. Steele, No. 45S04-1512-DR-00682 (Ind. Mar. 15, 2016).
Where, as here, a trial court enters findings sua sponte, the appellate court
reviews issues covered by the findings with a two-tiered standard of review that
asks whether the evidence supports the findings, and whether the findings
support the judgment. Id.
[10] Specifically, Mother argues that the trial court “did not make the requisite
findings to support a parenting time restriction in this case.” Appellant’s Br. p.
14; see Ind. Code § 31-17-4-2 (“[T]he court shall not restrict a parent’s parenting
time rights unless the court finds that the parenting time might endanger the child’s
physical health or significantly impair the child’s emotional development.” (emphasis
added)).2 This appears to be a collateral attack on the part of the agreed order
that provides “Dale Nester shall have no contact with the . . . minor children.”
2 Although Mother agreed that Nester could not have any contact with her children, she does not explain how this restricted her parenting “time.” As Mother testified at the hearing, she still had her children every other week, but she did not stay with Nester that week. Instead, she stayed with Nester the week she did not have her children. Tr. p. 31.
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 5 of 9 Appellant’s App. p. 18. Mother, however, agreed to this restriction. See id. at
16 (written agreement between parties that “Dale Nester shall have no contact
with the minor children”). And she did not appeal it. Instead, less than five
months later, Mother sought to remove the restriction because she did not
“believe that the children would be harmed or placed in jeopardy of any harm if
they were in the presence of Dale Nester as the children have never been
harmed by him.” Id. at 20.
[11] In other words, Mother changed her mind about Nester being in the presence of
her children and sought to modify the child-custody order. Such modifications
are governed by Indiana Code section 31-17-2-1:
The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.
[12] Ind. Code § 31-17-2-21(a). The party seeking to modify custody bears the
burden of demonstrating that the existing custody should be altered. Steele-Giri,
No. 45S04-1512-DR-682.
[13] Here, the trial court determined that it was in the best interests of the children
that “Nester have no contact with the minor children while he is serving his
sentence for Intimidation and Domestic Battery, and pending further order of
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 6 of 9 the Court.” Appellant’s App. p. 23. The court reasoned that Nester victimized
Mother and her children, who, before the incident, were living with Mother and
Nester every other week. Id. at 22-23. The record supports this. That is, an
intoxicated Nester strangled Mother, who passed out. Mother thought she was
going to die. Rehn had to pull Nester off of Mother. Nester then threatened to
kill all of them and fired shots into Rehn’s garage. Therefore, even assuming
that Mother could have established a substantial change in circumstances, see
I.C. § 31-17-2-21(a), Mother has failed to persuade us that the trial court’s best-
interests determination is clearly erroneous.
[14] Affirmed.
Crone, J., concurs.
Bailey, J., concurs in result with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 7 of 9 IN THE COURT OF APPEALS OF INDIANA
Heather Renee Czahor, April 7, 2016 Appellant-Respondent, Court of Appeals Case No. 66A04-1508-DR-1174 v. Appeal from the Pulaski Circuit Court Eric Anthony Czahor, The Honorable Robert B. Mrzlack, Appellee-Petitioner. Special Judge Trial Court Cause No. 66C01-1110-DR-58
Bailey, Judge, concurring in result
[15] Restriction of parenting time is governed by Indiana Code Section 31-17-4-2,
which provides:
The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.
[16] Mother complains that no specific finding of endangerment has been made,
although her time with the children is subject to a restriction excluding her
batterer. I do not see Mother’s challenge as a collateral attack upon the custody
order. Mother simply ignores the procedural posture of this case and wishes to
proceed as if the trial court’s order on appeal was an original restrictive
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 8 of 9 parenting time order. However, the parenting time restriction was already in
place at the parent’s behest, and Mother fails to acknowledge her burden of
proof in seeking modification.
[17] In all parenting time controversies, courts are required to give foremost
consideration to the best interests of the child or children involved. J.M. v.
N.M., 844 N.E.2d 590, 599 (Ind. Ct. App. 2006), trans. denied. Mother, whose
partner was still serving a criminal sentence for an attack upon her, failed to
persuade the trial court that a parenting time modification would be in the best
interests of the children. Specifically, the trial court concluded:
It is in the best interests of the minor children of the parties that Dale Nester have no contact with the minor children while he is serving his sentence for Intimidation and Domestic Battery, and pending further order of the Court.
(App. at 23.)
[18] We reverse a trial court’s determination of a parenting time issue only when the
trial court has manifestly abused its discretion; no abuse of discretion occurs if
there is a rational basis in the record supporting the trial court’s determination.
J.M., 844 N.E.2d at 599. The evidentiary record amply supports the trial
court’s decision. Thus, I concur in the result reached by the majority.
Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016 Page 9 of 9