MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 16 2019, 8:43 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT, PRO SE ATTORNEYS FOR Darya Hupp APPELLEE-INTERVENOR Fort Wayne, Indiana George Guido David C. Pricer Graly & Guido Law Office, LLC Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Paternity of R.H. April 16, 2019
Darya L. Hupp, Court of Appeals Case No. 18A-JP-2110 Appellant-Petitioner, Appeal from the v. Adams Circuit Court The Honorable Adam Salsburey, Chad E. Kukelhan, Judge Trial Court Cause No. Appellee-Respondent, 01C01-0609-JP-67 and Carolyn Clay, Appellee-Intervenor
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 1 of 16 Case Summary [1] Darya L. Hupp (“Mother”) appeals the trial court’s order suspending her
parenting time and finding her in contempt for failing to pay child support as
ordered and to correct her son’s birth certificate. We affirm.
Facts and Procedural History [2] Mother and Adam Salsburey (“Father”) have one child, R.H. (“Child”), who
was born in 2005. Father’s paternity of Child was established by order of the
Allen Circuit Court in 2007. At that time, the court also ordered Mother to
correct Child’s birth certificate to list Father as the father of Child. Because
Child was born in California, the court found that correcting Child’s birth
certificate was Mother’s responsibility.
[3] Two years later, in 2009, Mother informed the court that she desired Child’s
paternal grandmother, Carolyn Clay (“Grandmother”), to serve as Child’s
custodian. After a hearing on Mother’s request, the court ordered custody of
Child be granted to Father. Mother was granted visitation with Child pursuant
to the Indiana Parenting Time Guidelines “or as the parties may agree.”
Appellant’s App. Vol. II p. 55. Shortly after the court issued its order (“2009
Order”), Mother relocated to California. Then, in 2015, Father executed a
medical and educational power of attorney of Child in favor of Grandmother
and her husband, Daniel Clay, and moved out of state. Father has not returned
to Indiana and has had virtually no contact with Child since 2015.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 2 of 16 [4] In December 2016, Mother filed a petition to modify custody. Grandmother
was permitted to intervene in the case and requested that Mother’s parenting
time be “restricted and/or limited to that of supervised.” Id. at 52. In January
2017, Father signed an affidavit “for the purpose of showing his complete, full,
and voluntary consent to primary sole physical custody being awarded to
[Grandmother].” Id. at 35. After Mother requested and was granted two
continuances, a hearing was held on April 24. Mother failed to appear and sent
the court a letter explaining that “[t]he emotional traumatic nature of this case
renders me incapable of completing the Interrogatories and any future inquires
or motions that may arise . . . I will be unable to complete the forms that have
been requested of me, and I will be unable to attend the hearing set for April
24.” Appellee’s App. Vol. II p. 12. After the hearing, the court issued an order
granting sole legal and physical custody of Child to Grandmother. The order
provides, in relevant part:
3. Shortly after the entry of the [2009 Order], [Mother] moved to California and has resided there since that time. Since that point in time, she has only had physical contact with [Child] on one (1) brief occasion and has chosen to have only nominal phone or other electronic contact with him. For that matter, [Mother] has had no contact of any kind with [Child], whether in person, email, skype, or phone contact since March 31, 2012.
*****
9. [Child’s] Nurse Practitioner, Candace Lemke, of The Bowen Center in Fort Wayne, Indiana, has advised that it would be in
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 3 of 16 [Child’s] “best interests to remain with [Grandmother] since he has been there since age 3.”
10. [Child] currently has a learning disability and suffers from ADHD.
13. After two (2) continuances having been requested by, and granted to [Mother], this matter was set for a final hearing before this court on [April 24]. When granting the second continuance, [Mother] was advised that the court was “granting this LAST continuance over the objection of counsel and resets the matter to [April 24] on which day and time this matter will DEFINITELY be heard.”
14. [Mother] sent a letter to the court acknowledging her “inability” to complete Interrogatories propounded to her as well as “any future inquires or motions that might arise,” as well as her inability to attend the hearing set for [April 24].
15. Having heard sworn testimony, the court orders:
d. For the reasons presented to this court, this court finds that parenting time between [Mother] and [Child], would significantly impair [Child’s] emotional development and well being and, further, might endanger [Child]. Accordingly, parenting time between [Mother] and [Child] whether in person or by phone, shall be on an agreed upon basis, with the understanding that [Mother’s] parenting time shall be restricted. Given that [Mother] has had no physical contact with [Child] since August of 2009, and no
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 4 of 16 contact of any kind, electronic or otherwise, since March 31, 2012, [Mother’s] parenting time shall take place in Fort Wayne, Indiana and shall be supervised, at all times, by [Grandmother] and/or her husband, Daniel Clay, whether in person or by phone.
e. [Mother] is, once again, admonished to complete the necessary paperwork required to have [Child’s] birth certificate changed to reflect that [Father] is the father of [Child].
g. [Mother] shall be obligated to pay child support for [Child] on a nominal basis. [Mother’s] obligation shall be at the rate of $51 per week.
j. [Grandmother] has incurred attorney fees of approximately $7,436 with regard to her need to defend, and respond to [Mother’s court petitions]. . . . The court finds that [Mother], who initiated these proceedings in the first place, should be obligated to pay one-half (1/2) of those attorney fees, or the sum of $3,718.
Appellant’s App. Vol. II pp. 56-59. Over six months later, in December 2017,
Mother notified the court that she had permanently relocated back to Indiana
on July 6, 2017, that she had been unemployed since 2015, that she had left her
job “because of religious discrimination,” that she was without income, and
that she was homeless, living in a shelter. Id. at 61.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 5 of 16 [5] In June 2018, Mother filed a petition to modify parenting time. Grandmother
responded by filing an information for contempt and rule to show cause, a
petition for attorney’s fees, and a motion for proceedings supplemental. A
hearing on these motions was held in August 2018. At the hearing, Mother
admitted that she had not corrected Child’s birth certificate, testifying that
“according to the California Department of Health, I have to have a notarized
statement from [Father] that he is [Child’s] biological father.” Tr. p. 6. Mother
said that she sent Father a letter on July 20 asking for a notarized statement, but
that she had not heard back from him. Regarding child support, Mother
testified that she was “not in arrears of any child support.” Id. However,
Grandmother provided evidence showing that Mother “was willfully behind for
a very long time,” was “very sporadic” in child-support payments, and that she
made a “substantial payment to get the support caught up” “in anticipation of
the hearing.” Id. at 21; see also Ex. I-1. Grandmother also presented evidence
that Mother had secured two jobs, one at The Lamp Light and the other at
Generation Home Care and was able to pay her weekly child-support
obligation. Finally, Mother testified that “the reason why” she is seeking to
modify parenting time “is because this is a case of parental alienation.” Tr. p.
11. Mother said that after Child “hung up on [her] on his birthday, [she] sent
him a Hallmark card and [she] told [Child], [‘]you know, sweetie, I can’t talk to
you or visit you just yet until after court, after we get this whole thing situated
because it’s just too toxic.[’]” Id. at 12. Mother testified that her relationship
with Child has “been poisoned” and that she believed Child thinks she “just
abandoned him and never wanted anything to do with him.” Id. Mother Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 6 of 16 asserted that having unsupervised parenting time with Child would “save [her]
relationship with [Child].” Id. at 11. Mother stated that she blamed
Grandmother for “allowing [Child] to hang up on [her] on his birthday,” and
she introduced evidence showing that she called Grandmother “many, many
times” between May 27 and June 10. Id. at 8.
[6] Grandmother also introduced evidence that Mother called her “many, many
times” between May 27 and June 10. Grandmother’s evidence showed that on
June 3, after Mother had called her numerous times without leaving a phone
number, Mother finally left a message with a return phone number.
Grandmother then called Mother to facilitate a supervised phone visit with
Child. During the conversation, Mother told Child “your grandmother is a liar.
Everything she has told you about me is a lie. She stole you from me.” Id. at
23. Child became upset and asked Mother to “not speak that way about
someone that he loved,” but Mother ignored him and continued calling
Grandmother a liar. Id. When Child began crying, Grandmother ended the
phone visit.
[7] Grandmother then presented evidence that on June 8, she called Mother to set
up a time for Mother to have an in-person visit with Child. See Ex. I-4, I-5.
After some argument, Mother finally agreed to meet for a visit at the Glenbrook
Mall on June 16. See id. However, before the visit occurred, Mother called
Grandmother thirty times “in an hour” on June 10, Child’s birthday. Tr. p. 26.
It was during one of these thirty phone calls that Child told Mother “I don’t
want to talk to you” and hung up on her. Id. at 8. Grandmother then presented
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 7 of 16 evidence of a police report from June 10, showing that she contacted police
because of Mother’s “incessant, non-stop calls.” Id. at 25; Ex. I-6. The report
showed that when officers spoke with Mother, she admitted that she had called
thirty times within the last hour, “that she will be done for the day, but, will
start back up tomorrow and then the next day and will continue to call to speak
with [Child] every day until she gets to have a conversation with [Child].” Ex.
I-6. The report also stated that Mother informed officers that she intended on
having Grandmother arrested because “she can call [Child] whenever she
wants” and “can talk to [Child] right on the spot.” Tr. p. 26. Despite all of
this, Grandmother provided evidence that she took Child to the Glenbrook
Mall on June 16 and then waited an hour for Mother. Mother “never show[ed]
up,” and when Grandmother and Child got home, a card from Mother had
been delivered. Id. In the card, Mother wrote that she would not be visiting
Child that day because she “can’t have what little [they] have left to be ruined.”
Ex. I-7.
[8] Grandmother’s evidence showed that since “she began caring for [Child] at age
three and a half,” he “has flourished and thrived in” her home. Tr. p. 19.
Grandmother also introduced evidence showing that Mother’s “most recent
behavior since the [hearing on April 24, 2017] has been rather erratic.” Id. at 17.
First, Grandmother introduced a police report showing that on July 17, 2017,
Mother approached a woman’s home, asked the woman to pray with her, and
after the woman refused, began cussing at the woman. The woman called the
police, and Mother told the responding officers that “Jesus spoke to her and
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 8 of 16 told her to go and spread His word and pray with people.” Id. at 22. Next,
Grandmother introduced a second police report showing that on September 17,
2017, Mother went to a church in Fort Wayne with a shaved head and began to
preach to the church. The church asked Mother to leave and called the police.
When officers spoke to Mother, she told them “she was only doing what God
had told her to do.” Id. Grandmother then introduced a third police report
showing that on February 4, 2018, police officers were called to another church
when Mother “went off on a tangent while giving testimony to the
congregation.” Id. This report stated that Mother had a history of causing
problems at churches and “has been trespassed from other churches because of
this.” Id. Finally, Grandmother introduced a fourth police report showing that
on April 8, 2018, police officers were called to a church because Mother was
“screaming and yelling inside the sanctuary.” Id. Furthermore, Grandmother
also introduced a YouTube video that showed Mother shaving her hair then
taking the hair and burning it, while professing “I’m [d]oing this to prove that
I’m not crazy.” Id. at 27; see also Ex. I-10. Based on this evidence,
Grandmother requested, in addition to denying Mother’s petition to modify
parenting time, that the court order Mother to “complete some sort of
psychological evaluation by a counselor or a psychologist” before exercising
any parenting time. Tr. p. 23.
[9] Following the hearing, the court issued an order denying Mother’s petition to
modify parenting time and granting Grandmother’s information for contempt
and rule to show cause and petition for attorney fees. The court also granted
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 9 of 16 Grandmother’s request that Mother undergo psychological evaluation and
counseling before any more parenting time occurs. The order provides, in
relevant part:
3. [Mother] is found in contempt of this Court’s orders as to her prior non-payment of child support and failure to secure the corrected birth certificate for [Child].
4. [Grandmother] has incurred attorney fees in having to defend against [Mother’s] Petition to Modify Parenting Time . . . as well as her prosecution of her Verified Information for Contempt and Rule to Show Cause in the amount of $4,190.50.
5. [Mother] is ordered to pay the sum of $4,190.50 to [Grandmother’s] attorney, Brian E. Stier, within 90 days of the date of this order.
6. Based upon the evidence presented at the hearing, [Mother] is ordered to undergo a complete psychological evaluation with David Lombard, Psychologist . . . or James Cates, Psychologist . . . before any further supervised telephonic or in person parenting time is to occur. [Mother] shall be responsible for the cost and expense of the psychological evaluation.
7. Further, [Mother] shall, at her expense, enroll and participate in individual counseling with a board certified psychologist or licensed therapist. . . . [Mother] shall attend said counseling at a minimum of one time per week until further Order of this Court. . . . [Mother’s] participation in counseling is a requirement for any further supervised telephonic and in person parenting time.
Appellant’s App. Vol. II pp. 26-27.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 10 of 16 [10] Mother, pro se, now appeals.
Discussion and Decision [11] Mother raises two arguments on appeal. She contends that the trial court erred
by suspending her parenting time and by finding her in contempt for failing to
pay child support as ordered and to correct Child’s birth certificate.
I. Suspension of Parenting Time [12] Mother first argues that the trial court abused its discretion when it effectively
suspended her parenting time by ordering her to undergo a psychological
evaluation and participate in individual counseling before any additional
parenting time can occur. Decisions involving parenting-time rights under the
paternity statutes are committed to the sound discretion of the trial court. 1 In re
Paternity of W.C., 952 N.E.2d 810, 815 (Ind. Ct. App. 2011). Reversal is
appropriate only upon a showing of an abuse of discretion. Id. at 816. When
reviewing the trial court’s decision, we do not reweigh the evidence or
reexamine the credibility of the witnesses. Id. Indiana has long recognized that
the right of parents to visit their children is a precious privilege that should be
enjoyed by noncustodial parents. Id. Accordingly, a noncustodial parent in a
1 Even though Mother and Grandmother cite the statutes governing parenting-time rights of noncustodial parents in divorce cases, see Indiana Code ch. 31-17-4, this is a paternity action, see Appellant’s App. p. 2 (first page of CCS labeling case as “In re: The Paternity of [Child]”). Therefore, the statutes in Indiana Code chapter 31-14-14 apply to this case. In any event, the controlling provisions in both chapters are nearly identical. Compare Ind. Code § 31-17-4-1(a) with Ind. Code § 31-14-14-1(a).
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 11 of 16 paternity action is generally entitled to reasonable parenting-time rights. See
Ind. Code § 31-14-14-1(a). The right of parenting time, however, is
subordinated to the best interests of the child. Id. Indiana Code section 31-14-
14-1, which outlines the parenting time rights of a noncustodial parent in a
paternity action, provides:
(a) A noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time might:
(1) endanger the child’s physical health and well-being; or
(2) significantly impair the child’s emotional development.
[13] Indiana Code section 31-14-14-2 provides that “[t]he court may modify an
order granting or denying parenting time rights whenever modification would
serve the best interests of the child.” A party who seeks to restrict parenting-
time rights bears the burden of presenting evidence justifying such a restriction.
In re Paternity of W.C., 952 N.E.2d at 816. The burden of proof is the
preponderance-of-the-evidence standard. Id.
[14] In April 2017, the court found that parenting time between Mother and Child
would significantly impair Child’s emotional development and well-being and,
further, might endanger Child. See Appellant’s App. Vol. II p. 58. By the
hearing in August 2018, Mother presented no evidence that that had changed.
Here, Child, who has a learning disability and suffers from ADHD, has been
cared for by Grandmother since he was three-and-a-half years old. Mother, on
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 12 of 16 the other hand, has only seen Child once, for one hour, in the past nine years.
The evidence also shows that when Grandmother tries to facilitate parenting
time, Mother becomes argumentative and abrasive, telling Child that
Grandmother is a “liar” and alleging that Grandmother “stole you from me.”
Tr. p. 24. Furthermore, Mother’s thirty calls over a single hour are evidence of
her belief that she can call and speak to Child whenever she wants, despite the
court’s order that parenting time “shall be on an agreed upon basis.”
Appellant’s App. Vol. II p. 58. And when Mother did agree to meet
Grandmother to exercise in-person parenting time, Mother did not show up
and, instead, mailed Child a card writing that she cannot talk to Child or visit
Child until after court. Finally, Mother’s actions evidenced by the four police
reports and YouTube video depict erratic behavior. To the extent that Mother
alleges that the court suspended her parenting time “because of her religious
beliefs,” we see no evidence of that. Nonetheless, even without considering any
evidence involving Mother’s religious activities, there is ample evidence to
support the court’s decision. Moreover, to the extent that Mother asserts that
Grandmother is trying to “alienate” Child from her, that does not seem to be
the case. Instead, the evidence shows that Grandmother worked with Mother
to schedule visits and took Child to the mall so that Mother could visit Child in
person, despite Mother’s nonstop calls just days before. Accordingly, we find
no abuse of discretion in the trial court’s decision to suspend Mother’s
parenting time until she completes a psychological evaluation and enrolls in
individual counseling.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 13 of 16 II. Contempt [15] Mother next contends that the court erred by finding her in contempt for failing
to pay child support as ordered and to correct Child’s birth certificate. Whether
a party is in contempt of court is a matter within the trial court’s discretion, and
we will reverse only if the trial court’s finding is against the logic of the evidence
before it or is contrary to law. Mosser v. Mosser, 729 N.E.2d 197, 199 (Ind. Ct.
App. 2000). To hold a party in contempt for a violation of a court order, the
trial court must find that the party acted with willful disobedience. Piercey v.
Piercey, 727 N.E.2d 26, 32 (Ind. Ct. App. 2000).
[16] Mother challenges the court’s finding of contempt regarding child support by
stating that “[n]ot only has [she] been paying child support, she was found to be
in no arrears.” Appellant’s Br. p. 17. The purpose of establishing a regular
schedule of support payments is one of “providing regular, uninterrupted
income for the benefit of that parent’s children, who are in the custody of
another,” and in this regard, “[t]he regularity and continuity of court decreed
support payments are as important as the overall dollar amount of those
payments.” In re Marriage of Bradach, 422 N.E.2d 342, 353 (Ind. Ct. App. 1981)
(citing Haycraft v. Haycraft, 375 N.E.2d 252, 255 (Ind. Ct. App. 1978)). A
noncustodial parent is required to make payments in the manner, amount, and
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 14 of 16 at the time required by the support order, at least until such order is modified or
set aside. Haycraft, 375 N.E.2d at 255.2
[17] Here, Mother was ordered to pay $51 per week in child support. The evidence
shows that Mother made “very, very sporadic payment[s] of support” and that
Mother “made a substantial payment to get the [child] support caught up.” Tr.
p. 21. On appeal, Mother does not dispute that she was very sporadic in her
child-support payments or that she made a large one-time payment just before
the hearing. Mother also does not provide any reason why she cannot pay her
weekly child-support obligation of $51 per week with the income she earns from
two jobs. As such, we find that the court did not abuse its discretion in finding
Mother in contempt for failing to pay child support as ordered.
[18] Finally, Mother argues that the court abused its discretion by finding her in
contempt for failing to correct Child’s birth certificate. Specifically, Mother
contends that she “provided proof of a good faith effort to amend” Child’s birth
certificate. Appellant’s Br. p. 17. She did not. In 2007, Mother was ordered to
correct Child’s birth certificate to show that Father was Child’s father. Since
then, Mother obtained what looks like a “Frequently Asked Questions”
2 Mother also argues that the court erred by ordering her to pay attorney’s fees to Grandmother’s attorney. Mother does not present a cogent argument on this issue. See Ind. Appellate Rule 46(A)(8)(a). Nonetheless, we affirm the trial court’s holding that Mother was in contempt. Once a party is found in contempt, the trial court has inherent authority to award attorney’s fees as compensation for damages resulting from the other party’s contemptuous actions. Topoliski v. Topoliski, 742 N.E.2d 991, 996 (Ind. Ct. App. 2001), reh’g denied. Such authority includes the award of attorney’s fees by a party to enforce a child-support order. Id. Because Mother was found in contempt, the court did not err by awarding attorney’s fees to Grandmother.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 15 of 16 document from the California Department of Health regarding
acknowledgement of paternity in January 2018 and sent Father a letter
requesting that he sign a notarized statement of paternity in July 2018. See
Appellant’s App. Vol. II pp. 68-79. At the hearing, Mother did not provide any
evidence that she had contacted the California Department of Health and
provided them with the order establishing Father’s paternity or that the
California Department of Health had previously denied a request to correct
Child’s birth certificate. We find that Mother has not made a “good faith
effort” to amend Child’s birth certificate and as such, the court did not abuse its
discretion by finding her in contempt for failing to correct Child’s birth
certificate.
[19] Affirmed.
Kirsch, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019 Page 16 of 16