In Re The Paternity of B.B., R.B. v. T.J.

1 N.E.3d 151, 2013 WL 6091652
CourtIndiana Court of Appeals
DecidedNovember 20, 2013
Docket34A02-1303-JP-243
StatusPublished
Cited by9 cases

This text of 1 N.E.3d 151 (In Re The Paternity of B.B., R.B. v. T.J.) 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
In Re The Paternity of B.B., R.B. v. T.J., 1 N.E.3d 151, 2013 WL 6091652 (Ind. Ct. App. 2013).

Opinion

OPINION

BROWN, Judge.

R.B. ("Father") appeals the trial court's order modifying eustody, visitation, and support of B.B. to TJ. ("Mother"). Father raises two issues, which we revise and restate as:

I. Whether the court abused its discretion by admitting evidence of text messages purportedly exchanged between Father and Mother; and
II. Whether the court abused its discretion by granting Mother's petition to modify physical and legal custody of B.B.

We affirm.

FACTS AND PROCEDURAL HISTORY

B.B. was born out of wedlock to Mother and Father on July 30, 2008, and the following day the parents signed a paternity affidavit. At the time of B.B.'s birth, Father was eighteen years old, Mother was seventeen years old, and both were living in Kokomo, Indiana. On August 20, 2010, following a petition to establish paternity filed by Father, the court issued its Order Establishing Paternity and Other Matters in which it left open the matter of custody of B.B. Soon after, on August 23, 2010, Mother filed a verified petition to modify order and petition for support, the court held a hearing on March 4, 2011, and on April 11, 2011, the court issued its Order Re: Child Custody and Parenting Time awarding joint legal custody of B.B. and shared custody in which the parents exercised equal parenting time. 1

In October of 2011, Father filed a notice of intent to relocate, and Mother filed an affidavit for contempt/petition to modify custody and an objection to notice of intent to move. The court held a hearing, and on January 17, 2012, entered an order in which it noted that in the summer of 2011 Father enrolled B.B. in pre-school at St. Joan of Are/St. Patrick campus in Kokomo ("St. Joan of Arce"), and that although Mother had initial reservations, she ultimately agreed to B.B. attending the school. The court's order noted that in October 2011, Father relocated his residence to Westfield, Indiana, approximately thirty-six miles from Kokomo, that Father advised Mother of his intent to relocate approximately two weeks in advance, and that Father filed his notice of intent to relocate three days after Mother filed her affidavit of citation/petition to modify eus-tody. The court noted that Father, in anticipation of his move and without consulting Mother, withdrew B.B. from St. Joan of Are and enrolled him in a preschool at St. Maria Goretti School in West- *154 field. The court modified the custody and parenting time provisions of its prior order so that B.B. could continue to attend St. Joan of Are but continued the joint legal and physical custody arrangement. 2 The court also admonished Father for his actions in enrolling B.B. in school twice without consulting Mother, and ordered him to consult with her on all major decisions affecting the child.

In February and March of 2012, both parents filed contempt citations related to the other parent claiming B.B. as a dependent on their tax returns in violation of previous court orders. 3 On May 25, 2012, Mother filed a petition to modify decree asking that the court modify custody of B.B. due to a substantial change in the cireumstances of the parties, specifically stating:

(a) [Father] has re-entered into or maintained a life-style involving alcohol[.]
(b) That said lifestyle impedes his ability to operate a motor vehicle and properly care for the child.
(c) The court entered an Order of joint custody at a time when the parties were able to communicate with one another. On or about April 22, 2012 [Mother] was told by [Father] not to call or communicate with him any further. Communication has been terminated as a result of this incident.
(d) At the time of the Court Order [Father] had a girlfriend/wife. A new child has been born into that relationship and [Father] has lost interest in [B.B.].
(e) That [B.B.] has grown older, can begin the "Headstart Program" in August, a five day per week school. This option would alter the current parenting time order. [Mother] does not intend to enroll the child in Headstart absent the Court's permission.
(£) For other unspecified reasons, it is in the best interest of the child that custody be modified.

Appellee's Appendix at 82. In July of 2012, the parents filed a Joint Agreement for Appointment of Mediator, and on August 27, 2012, the mediator filed her report finding that mediation was unsuccessful. Appellant's Appendix at 10. Also, in January of 2018 both Mother and Father filed affidavits of citation for contempt alleging that the other parent denied them parenting time or visitation in violation of previous court orders.

On January 17 and January 30, 2018, the court held a hearing on the parents' various court filings. On February 25, 2013, the court issued its order modifying custody, visitation and support (the "Modification Order") and included the following relevant findings:

42. _.... In October 2011, after relocating to Westfield, [Father] enrolled [B.B.] in pre-school at St. Maria of Goretti School in Westfield, without consulting [Mother]. ...
*s * * * # *
*155 44. [B.B.] began the fall 2012 school year on August 20, 2012, at [St. Joan of Arc]. Although [Father] had [B.B.] in his custody the first day of school, he failed to arrange for [B.B.'s] transportation, and [Mother] drove to [Father's] residence and took [B.B.] to school for his first day.
i # # * # x
51. Mother and [Father] have a contentious relationship, and on most occasions fail to communicate constructively or at all. During one day in the spring 2012, [Mother] called or texted [Father] ten (10) or more times in an attempt to speak with [B.B.], which requests [Father] refused. Father contacted law enforcement alleging [Mother] was harassing him, and she was told not to contact [Father] any more in the future.
52. On November 25, 2012, the parties signed an agreement between them as to how parenting time with [B.B.] would be divided during the period December 15 through 31st, 2012. ... At the hearing in January 2013, each parent alleged the other had violated the agreement in some respect.
58. The parents have a mutual dislike and distrust of each other. Of the two parents, [Father] is the most negative of the two in terms of his language, demeanor, and attitude toward [Mother]. In his discovery responses and hearing testimony, he indicated "none" in response to a question about [Mother's] positive attributes.

Id. at 166, 168.

The Modification Order included conclusions of law and specifically concluded that "it is in [B.B.'s] best interest that the prior orders be modified to provide that his legal and physical custody be awarded to [Moth-erl, and that [Father] be awarded parenting time ...

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