MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 16 2015, 7:09 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jonathan M. Young Robin R. Craig Law Office of Jonathan M. Young, P.C. Evansville, Indiana Newburgh, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Marriage of: October 16, 2015 R.L.R-H., Court of Appeals Case No. Appellant-Respondent, 82A01-1501-DR-31 Appeal from the Vanderburgh v. Superior Court The Honorable David O. Kelley, J.M.R., Special Judge Appellee-Petitioner Trial Court Cause No. 82D04-0712-DR-01169
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 1 of 9 Case Summary [1] R.R. (“Mother”) appeals an order permitting J.R. (“Father”) to exercise
parenting time with Jo.R. (“Child”) and finding Mother in contempt of court.
We affirm.
Issues [2] Mother presents two issues for review:
I. Whether the trial court abused its discretion by allowing Father parenting time; and
II. Whether the trial court abused its discretion by finding Mother in contempt of court.
Facts and Procedural History [3] Father and Mother separated in 2007, when Child was two years old. Father
petitioned for dissolution of the marriage. An interim order provided that
Father was to exercise parenting time with Child without overnight visits. After
Mother filed an emergency petition for modification, the parties agreed that
Father would exercise parenting time without his friend, J.F., present.
[4] Initially, Father exercised parenting time in four-hour blocks. According to
Father, he was followed, contacted by telephone, subjected to accusations, and
“tormented” during the visits and child exchanges. (Tr. at 17.) On one
occasion, Mother telephoned the police to allege that Father had “smacked”
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 2 of 9 her. (Tr. at 18.) When police responded, Father produced a recording of his
interaction with Mother. The police declined to make an arrest.
[5] The visits continued, but Father began to bring another adult or a teenager with
him on each visit. One such companion was B.R., the fourteen-year-old son of
J.F.
[6] The parties were divorced in November of 2008. Two weeks later, Mother filed
an emergency petition seeking the suspension of Father’s parenting time.
Mother alleged that B.R. had touched Child inappropriately and Father had
failed to protect Child. The parties reached an agreement that Father’s
parenting time would take place in Evansville and not in the presence of B.R.
[7] Mother initiated a Child Protective Services investigation, which was closed
with the accusation unsubstantiated. Neither Father nor B.R. was ever charged
with a criminal act.
[8] Three months after filing the motion to suspend Father’s parenting time,
Mother filed a motion for restriction of his parenting time. In 2009, Father was
twice permitted to exercise parenting time at the offices of Child’s therapist.
Thereafter, the therapist informed Father that she did not offer facilities for
supervised parenting time. At this juncture, Father discontinued his attempts to
exercise parenting time with Child.
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 3 of 9 [9] On September 29, 2010, the trial court entered an order distributing the marital
property and providing: “Court is to be advised as to the progress on Child’s
counseling before modifying any visitation orders.” (App. at 7.)
[10] On August 6, 2013, Father filed a petition to modify parenting time. He also
requested that Mother be held in contempt of court for refusal to comply with
the property division order. On April 25, 2014, the trial court conducted a
hearing at which Father, Mother, and Child’s therapist testified. Child’s
therapist testified that Child had experienced physical symptoms due to anxiety
about seeing Father and had reported that Father “let people do bad things to
[her].” (Tr. at 75.)
[11] On December 23, 2014, the trial court entered an order that Father have
parenting time with Child on alternate weekends, preceded by six one-hour
supervised visits at the Parenting Time Center. Although the weekend visits
were to be unsupervised, the trial court cautioned: “for his own protection, the
Father may elect to have any other responsible person present during his
parenting time.” (App. at 13.)
[12] Mother was found in contempt of court for failure to comply with the 2010
property division order. The trial court imposed a sixty-day sentence of
incarceration, which Mother could avoid by surrendering to Father a shotgun
that had belonged to his deceased father and by paying Father the market value
of twenty-one items of personal property awarded to him. Mother was also
ordered to pay $900.00 of Father’s attorney’s fees. Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 4 of 9 Discussion and Decision Parenting Time [13] Mother contends that the trial court abused its discretion by allowing Father to
exercise parenting time despite the recommendation of Child’s therapist to the
contrary.
[14] “In all visitation controversies, courts are required to give foremost
consideration to the best interests of the child.” Marlow v. Marlow, 702 N.E.2d
733, 735 (Ind. Ct. App. 1998), trans. denied. We review parenting time decisions
for an abuse of discretion. Id. 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. Sexton v. Sedlak, 946
N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.
[15] “The right of non-custodial parents to visit with their children is a ‘“sacred and
precious privilege.”’ Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App.
2003) (quoting McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. Ct. App.
1997), trans. denied). “Ideally, a child should have a well-founded relationship
with each parent.” Id. Accordingly, Indiana Code section 31-17-4-2 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.
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 5 of 9 [16] Even though the statute uses the word “might,” this Court has previously
interpreted such language to mean that a court may not restrict parenting time
unless that parenting time “would” endanger the child’s physical health or
emotional development. D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App.
2009). A party who seeks to restrict a parent’s visitation rights bears the burden
of presenting evidence justifying such a restriction.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 16 2015, 7:09 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jonathan M. Young Robin R. Craig Law Office of Jonathan M. Young, P.C. Evansville, Indiana Newburgh, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Marriage of: October 16, 2015 R.L.R-H., Court of Appeals Case No. Appellant-Respondent, 82A01-1501-DR-31 Appeal from the Vanderburgh v. Superior Court The Honorable David O. Kelley, J.M.R., Special Judge Appellee-Petitioner Trial Court Cause No. 82D04-0712-DR-01169
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 1 of 9 Case Summary [1] R.R. (“Mother”) appeals an order permitting J.R. (“Father”) to exercise
parenting time with Jo.R. (“Child”) and finding Mother in contempt of court.
We affirm.
Issues [2] Mother presents two issues for review:
I. Whether the trial court abused its discretion by allowing Father parenting time; and
II. Whether the trial court abused its discretion by finding Mother in contempt of court.
Facts and Procedural History [3] Father and Mother separated in 2007, when Child was two years old. Father
petitioned for dissolution of the marriage. An interim order provided that
Father was to exercise parenting time with Child without overnight visits. After
Mother filed an emergency petition for modification, the parties agreed that
Father would exercise parenting time without his friend, J.F., present.
[4] Initially, Father exercised parenting time in four-hour blocks. According to
Father, he was followed, contacted by telephone, subjected to accusations, and
“tormented” during the visits and child exchanges. (Tr. at 17.) On one
occasion, Mother telephoned the police to allege that Father had “smacked”
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 2 of 9 her. (Tr. at 18.) When police responded, Father produced a recording of his
interaction with Mother. The police declined to make an arrest.
[5] The visits continued, but Father began to bring another adult or a teenager with
him on each visit. One such companion was B.R., the fourteen-year-old son of
J.F.
[6] The parties were divorced in November of 2008. Two weeks later, Mother filed
an emergency petition seeking the suspension of Father’s parenting time.
Mother alleged that B.R. had touched Child inappropriately and Father had
failed to protect Child. The parties reached an agreement that Father’s
parenting time would take place in Evansville and not in the presence of B.R.
[7] Mother initiated a Child Protective Services investigation, which was closed
with the accusation unsubstantiated. Neither Father nor B.R. was ever charged
with a criminal act.
[8] Three months after filing the motion to suspend Father’s parenting time,
Mother filed a motion for restriction of his parenting time. In 2009, Father was
twice permitted to exercise parenting time at the offices of Child’s therapist.
Thereafter, the therapist informed Father that she did not offer facilities for
supervised parenting time. At this juncture, Father discontinued his attempts to
exercise parenting time with Child.
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 3 of 9 [9] On September 29, 2010, the trial court entered an order distributing the marital
property and providing: “Court is to be advised as to the progress on Child’s
counseling before modifying any visitation orders.” (App. at 7.)
[10] On August 6, 2013, Father filed a petition to modify parenting time. He also
requested that Mother be held in contempt of court for refusal to comply with
the property division order. On April 25, 2014, the trial court conducted a
hearing at which Father, Mother, and Child’s therapist testified. Child’s
therapist testified that Child had experienced physical symptoms due to anxiety
about seeing Father and had reported that Father “let people do bad things to
[her].” (Tr. at 75.)
[11] On December 23, 2014, the trial court entered an order that Father have
parenting time with Child on alternate weekends, preceded by six one-hour
supervised visits at the Parenting Time Center. Although the weekend visits
were to be unsupervised, the trial court cautioned: “for his own protection, the
Father may elect to have any other responsible person present during his
parenting time.” (App. at 13.)
[12] Mother was found in contempt of court for failure to comply with the 2010
property division order. The trial court imposed a sixty-day sentence of
incarceration, which Mother could avoid by surrendering to Father a shotgun
that had belonged to his deceased father and by paying Father the market value
of twenty-one items of personal property awarded to him. Mother was also
ordered to pay $900.00 of Father’s attorney’s fees. Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 4 of 9 Discussion and Decision Parenting Time [13] Mother contends that the trial court abused its discretion by allowing Father to
exercise parenting time despite the recommendation of Child’s therapist to the
contrary.
[14] “In all visitation controversies, courts are required to give foremost
consideration to the best interests of the child.” Marlow v. Marlow, 702 N.E.2d
733, 735 (Ind. Ct. App. 1998), trans. denied. We review parenting time decisions
for an abuse of discretion. Id. 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. Sexton v. Sedlak, 946
N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.
[15] “The right of non-custodial parents to visit with their children is a ‘“sacred and
precious privilege.”’ Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App.
2003) (quoting McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. Ct. App.
1997), trans. denied). “Ideally, a child should have a well-founded relationship
with each parent.” Id. Accordingly, Indiana Code section 31-17-4-2 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.
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 5 of 9 [16] Even though the statute uses the word “might,” this Court has previously
interpreted such language to mean that a court may not restrict parenting time
unless that parenting time “would” endanger the child’s physical health or
emotional development. D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App.
2009). A party who seeks to restrict a parent’s visitation rights bears the burden
of presenting evidence justifying such a restriction. Id. The burden of proof is
by a preponderance of the evidence. In re Paternity of W.C., 952 N.E.2d 810,
816 (Ind. Ct. App. 2011).
[17] Here, the trial court made no finding of endangerment, concluding that Mother
had not met her burden of proof. Indeed, the trial court implicitly found that
Mother’s prior accusations against Father lacked credibility, as the court
suggested that Father protect himself in the future by including others in the
parenting time visits.
[18] Mother now insists that Child’s wishes and best interests were disregarded and
she points to testimony that Child had regressed physically and emotionally
because of fear of seeing Father. Purportedly, Child had nausea and vomiting
and was sleeping in Mother’s bed because Child was “worried about an
upcoming court date.” (Tr. at 75.) However, Mother ignores evidence that
Child learned of the impending court proceedings from someone having access
to Child and this could not have included Father. Mother also ignores the
abundant evidence that she has consistently thwarted Father’s efforts to visit
with Child. Although Child’s therapist testified that she detected no signs of
coaching and opined that visits with Father would cause Child mental or
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 6 of 9 physical harm, the court was under no obligation to adopt this opinion. See
Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct. App. 2000) (“the fact-finder is
not required to accept the opinions of experts regarding custody”).
[19] Mother essentially urges that we reweigh the evidence and credit her testimony
that Father would likely fail to keep Child safe. We will not do so. Mother has
failed to demonstrate that the trial court abused its discretion when Father was
permitted to exercise his statutory right to parenting time.
Contempt Finding [20] At the hearing, Father testified that he had yet to receive many items of
personal property allocated to him in the 2010 property division order. He
testified that he had made repeated attempts to contact Mother, without
success. Father had obtained police assistance and retrieved some of the
personal property from Mother’s yard. Other items of his property were visible
behind a locked fence across the street or on his former brother-in-law’s lot.
The trial court found Mother in contempt, ordered her incarceration, and
provided that she could purge herself of the contempt by producing an heirloom
gun and paying Father the value of the other items. Mother claims that she was
not properly held in contempt.
[21] A party that is willfully disobedient to a court’s order may be held in contempt
of court. Wilson v. State, 988 N.E.2d 1211, 1218 (Ind. Ct. App. 2013). Whether
a person is in contempt of a court order is a matter left to the trial court’s
discretion, and we will reverse a finding of contempt only where an abuse of
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 7 of 9 discretion has been shown. Geesy v. Geesy, 959 N.E.2d 256, 258 (Ind. Ct. App.
2011). Mother does not argue that the trial court misapprehended the facts and
circumstances before it. Rather, Mother attacks the 2010 order as ambiguous.
[22] Mother argues that “there can be no willful disobedience of an order as vague
as the one at issue herein.” (Appellant’s Br. at 13.) According to Mother, the
order failed to specify “who should initiate a property exchange, how it should
occur, when it is to occur.” (Appellant’s Br. at 12.) Mother did not appeal the
2010 order. She did not seek clarification from the trial court. When Mother
testified at the December 2014 hearing, she did not claim that she was confused
about the order. Rather, she testified that she had received no calls, voice
mails, or text messages from Father, and that she had retained none of Father’s
property. According to Mother, certain items had been loaned by Father to his
siblings, Father had retrieved some property, and Mother’s mother apparently
gave some property to Father. When confronted with photographic evidence of
a camper located at her brother’s lot, Mother contended that it was merely
similar to one awarded to Father.
[23] In short, Mother’s argument is merely an attempt to collaterally attack a 2010
order. The trial court was presented with substantial evidence to support a
finding that Mother willfully refused to comply with a court order. She fails to
show that the trial court abused its discretion by finding her in contempt of
court.
Conclusion Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 8 of 9 [24] The trial court acted within its discretion by permitting Father to exercise
parenting time with Child and in finding Mother in contempt of court.
[25] Affirmed.
Baker, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1501-DR-31 | October 16, 2015 Page 9 of 9