MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 17 2018, 9:36 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Betty M. Harrington Wieneke Law Office, LLC Harrington Law, P.C. Brooklyn, Indiana Danville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of October 17, 2018 G.S. Court of Appeals Case No. 18A-JP-1306 Appeal from the Hendricks S.S., Superior Court Appellant-Petitioner, The Honorable Mark A. Smith, Judge v. Trial Court Cause No. 32D04-0904-JP-2 C.S, Appellee-Respondent.
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 1 of 8 Case Summary [1] S.S. (“Father”) and C.S. (“Mother”) have one child together, G.S. (“Child”).
After Father—who has struggled with substance abuse—moved from Indiana
to Florida, the trial court entered a parenting-time order granting Father the
ability to exercise parenting time only in Indiana. Father now appeals, arguing
that the trial court abused its discretion by restricting parenting time in this
manner because the trial court failed to make a specific finding under Indiana
Code Section 31-14-14-1 that would support the burdensome restriction.1
[2] We remand with instructions that the trial court either (1) enter an order with
findings that support a parenting-time restriction or (2) enter an order without a
restriction. We also instruct the trial court to correct certain scrivener’s errors.
Facts and Procedural History [3] Child was born in October 2005. Mother had primary physical custody, and, in
2015, the trial court entered an order granting Father unsupervised parenting
time in accordance with the Indiana Parenting Time Guidelines. Thereafter,
Father typically exercised his parenting time at the residence of his mother
(“Paternal Grandmother”), not far from Mother’s residence. In April 2017,
1 Mother and Father direct us to Indiana Code Section 31-17-4-2. However, because this case arises from the paternity context and not the dissolution context, it appears that the applicable statute is Indiana Code Section 31-14-14-1, which is substantially similar to Indiana Code Section 31-17-4-2. See In re Paternity of K.J.L., 725 N.E.2d 155 (Ind. Ct. App. 2000) (noting the potential for statutory differences in each context).
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 2 of 8 Father moved to Florida and filed a Notice of Intent to Relocate. The next
month, both Father and Mother moved to modify parenting time. During the
pendency of the motions, Father traveled to Indiana to exercise parenting time.
[4] The trial court eventually held a hearing in May 2018, after which it entered an
order granting Father “unsupervised parenting time in Indiana, at [Paternal
Grandmother’s] home, pursuant to the Indiana Parenting Time Guidelines.” 2
Appellant’s App. Vol. II at 93. Accompanying the order were findings and
conclusions, among them, that Father “has a history of abusing alcohol and
admits he is an alcoholic.” Id. at 91. The trial court found that Child—who
was twelve years old as of the hearing—“has a heightened awareness of the
signs of a person under the influence of alcohol because he has been around
[Father] while [Father] was under the influence,” and that Child “worries about
what would happen if he were in Florida for parenting time and [Father] were
drinking because he does not know anyone there and would not know what to
do.” Id. The trial court further found that
[Father]’s request for unsupervised parenting time with [Child] in Florida is not in [Child’s] best interest. [Father] has, at most, just over 90 days’ sobriety from alcohol. [Father] has a history of not being honest regarding his abuse of alcohol. The parties live 12 hours apart. There are no safeguards available to [Child] in
2 Father points out that the order refers to Child’s maternal grandmother, a reference that appears to be a scrivener’s error, as maternal grandmother was not mentioned at the hearing (although the guardian ad litem report also appears to substitute maternal grandmother for Paternal Grandmother). In her brief, Mother appears to agree that the court meant Paternal Grandmother, describing the order as granting “parenting time . . . at paternal grandmother’s home in Indiana.” Appellee’s Br. at 7. When quoting or referring to the trial court’s order, we substitute Paternal Grandmother for any reference to maternal grandmother.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 3 of 8 Florida like the safeguards he has while having parenting time with [Father] at [Paternal Grandmother’s] house, a few minutes from [Mother’s] home. Even with a Soberlink device,3 the distance does not allow for a rapid response by [Mother] or [Paternal Grandmother] in the event of an emergency. [Father] has not shown an understanding that long[-]term sobriety requires more than sticking his big toe in the recovery pool. He provided weekly AA attendance meeting sheets for the period between April 2017 and September 2017, yet he still drank for multiple days while in Mexico in February 2018 and really showed no regret or remorse. He now claims to be attending AA meetings twice per week. He offered no evidence of the same aside from his self-serving testimony, which the Court finds highly questionable given his history of dishonesty about his alcoholism. While he is to be commended for 90 days clean, [Father] must demonstrate that he is willing to submerge his body into recovery, long term.
Id. at 93.
[5] Father now appeals.
Discussion and Decision [6] “This is ultimately a decision about parenting time, which requires us to give
foremost consideration to the best interests of the child.” Perkinson v. Perkinson,
989 N.E.2d 758, 761 (Ind. 2013) (quotation marks omitted). Furthermore, we
3 There was evidence that a handheld Soberlink device would enable Father to take breath tests at certain times while Child was in his care, and that, depending on the level of subscription to the service, those results could be immediately transmitted to Mother via text message or e-mail.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 4 of 8 review parenting-time decisions for an abuse of discretion, id., which occurs
when the trial court’s decision is against the logic and effect of the facts and
circumstances before it or the reasonable inferences drawn therefrom. In re
Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002). Here, neither Father nor
Mother requested special findings and conclusions thereon. Nonetheless,
where “provided by . . . statute,” the “court shall make special findings of fact
without request,” Ind. Trial Rule 52(A), and “[t]he court’s failure to find upon a
material issue upon which a finding of fact is required . . . shall not be resolved
by any presumption and may be challenged,” T.R. 52(D). Where findings are
otherwise sua sponte, we look to “whether the evidence supports the findings,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 17 2018, 9:36 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Betty M. Harrington Wieneke Law Office, LLC Harrington Law, P.C. Brooklyn, Indiana Danville, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of October 17, 2018 G.S. Court of Appeals Case No. 18A-JP-1306 Appeal from the Hendricks S.S., Superior Court Appellant-Petitioner, The Honorable Mark A. Smith, Judge v. Trial Court Cause No. 32D04-0904-JP-2 C.S, Appellee-Respondent.
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 1 of 8 Case Summary [1] S.S. (“Father”) and C.S. (“Mother”) have one child together, G.S. (“Child”).
After Father—who has struggled with substance abuse—moved from Indiana
to Florida, the trial court entered a parenting-time order granting Father the
ability to exercise parenting time only in Indiana. Father now appeals, arguing
that the trial court abused its discretion by restricting parenting time in this
manner because the trial court failed to make a specific finding under Indiana
Code Section 31-14-14-1 that would support the burdensome restriction.1
[2] We remand with instructions that the trial court either (1) enter an order with
findings that support a parenting-time restriction or (2) enter an order without a
restriction. We also instruct the trial court to correct certain scrivener’s errors.
Facts and Procedural History [3] Child was born in October 2005. Mother had primary physical custody, and, in
2015, the trial court entered an order granting Father unsupervised parenting
time in accordance with the Indiana Parenting Time Guidelines. Thereafter,
Father typically exercised his parenting time at the residence of his mother
(“Paternal Grandmother”), not far from Mother’s residence. In April 2017,
1 Mother and Father direct us to Indiana Code Section 31-17-4-2. However, because this case arises from the paternity context and not the dissolution context, it appears that the applicable statute is Indiana Code Section 31-14-14-1, which is substantially similar to Indiana Code Section 31-17-4-2. See In re Paternity of K.J.L., 725 N.E.2d 155 (Ind. Ct. App. 2000) (noting the potential for statutory differences in each context).
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 2 of 8 Father moved to Florida and filed a Notice of Intent to Relocate. The next
month, both Father and Mother moved to modify parenting time. During the
pendency of the motions, Father traveled to Indiana to exercise parenting time.
[4] The trial court eventually held a hearing in May 2018, after which it entered an
order granting Father “unsupervised parenting time in Indiana, at [Paternal
Grandmother’s] home, pursuant to the Indiana Parenting Time Guidelines.” 2
Appellant’s App. Vol. II at 93. Accompanying the order were findings and
conclusions, among them, that Father “has a history of abusing alcohol and
admits he is an alcoholic.” Id. at 91. The trial court found that Child—who
was twelve years old as of the hearing—“has a heightened awareness of the
signs of a person under the influence of alcohol because he has been around
[Father] while [Father] was under the influence,” and that Child “worries about
what would happen if he were in Florida for parenting time and [Father] were
drinking because he does not know anyone there and would not know what to
do.” Id. The trial court further found that
[Father]’s request for unsupervised parenting time with [Child] in Florida is not in [Child’s] best interest. [Father] has, at most, just over 90 days’ sobriety from alcohol. [Father] has a history of not being honest regarding his abuse of alcohol. The parties live 12 hours apart. There are no safeguards available to [Child] in
2 Father points out that the order refers to Child’s maternal grandmother, a reference that appears to be a scrivener’s error, as maternal grandmother was not mentioned at the hearing (although the guardian ad litem report also appears to substitute maternal grandmother for Paternal Grandmother). In her brief, Mother appears to agree that the court meant Paternal Grandmother, describing the order as granting “parenting time . . . at paternal grandmother’s home in Indiana.” Appellee’s Br. at 7. When quoting or referring to the trial court’s order, we substitute Paternal Grandmother for any reference to maternal grandmother.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 3 of 8 Florida like the safeguards he has while having parenting time with [Father] at [Paternal Grandmother’s] house, a few minutes from [Mother’s] home. Even with a Soberlink device,3 the distance does not allow for a rapid response by [Mother] or [Paternal Grandmother] in the event of an emergency. [Father] has not shown an understanding that long[-]term sobriety requires more than sticking his big toe in the recovery pool. He provided weekly AA attendance meeting sheets for the period between April 2017 and September 2017, yet he still drank for multiple days while in Mexico in February 2018 and really showed no regret or remorse. He now claims to be attending AA meetings twice per week. He offered no evidence of the same aside from his self-serving testimony, which the Court finds highly questionable given his history of dishonesty about his alcoholism. While he is to be commended for 90 days clean, [Father] must demonstrate that he is willing to submerge his body into recovery, long term.
Id. at 93.
[5] Father now appeals.
Discussion and Decision [6] “This is ultimately a decision about parenting time, which requires us to give
foremost consideration to the best interests of the child.” Perkinson v. Perkinson,
989 N.E.2d 758, 761 (Ind. 2013) (quotation marks omitted). Furthermore, we
3 There was evidence that a handheld Soberlink device would enable Father to take breath tests at certain times while Child was in his care, and that, depending on the level of subscription to the service, those results could be immediately transmitted to Mother via text message or e-mail.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 4 of 8 review parenting-time decisions for an abuse of discretion, id., which occurs
when the trial court’s decision is against the logic and effect of the facts and
circumstances before it or the reasonable inferences drawn therefrom. In re
Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002). Here, neither Father nor
Mother requested special findings and conclusions thereon. Nonetheless,
where “provided by . . . statute,” the “court shall make special findings of fact
without request,” Ind. Trial Rule 52(A), and “[t]he court’s failure to find upon a
material issue upon which a finding of fact is required . . . shall not be resolved
by any presumption and may be challenged,” T.R. 52(D). Where findings are
otherwise sua sponte, we look to “whether the evidence supports the findings,
and whether the findings support the judgment.” Steele-Giri v. Steele, 51 N.E.3d
119, 123 (Ind. 2016). “Any issue not covered by the findings is reviewed under
the general judgment standard, meaning a reviewing court should affirm based
on any legal theory supported by the evidence.” Id. at 123-24.
[7] In conducting our review, we “neither reweigh the evidence nor judge the
credibility of the witnesses,” Perkinson, 989 N.E.2d at 761, and we give “due
regard . . . to the opportunity of the trial court to judge the credibility of the
witnesses,” T.R. 52(A). We “shall not set aside the findings or judgment unless
clearly erroneous.” Id. A trial court’s findings are clearly erroneous when the
record contains no facts to support them either directly or by inference; a
judgment is clearly erroneous if it applies the wrong legal standard to properly
found facts. Town of Fortville v. Certain Fortville Annexation Territory Landowners,
51 N.E.3d 1195, 1198 (Ind. 2016).
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 5 of 8 [8] Both the instant parenting-time order and the previous order provide that
Father is to receive parenting time in accordance with the Indiana Parenting
Time Guidelines. However, the instant order specifies that Father—who now
lives in Florida—is to exercise his parenting time in Indiana at the residence of
Paternal Grandmother. Indiana Code Section 31-14-14-1(a) provides:
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.
[9] Father asserts that the trial court failed to make an express finding that would
support the burdensome geographic constraints on his parenting time. Father
correctly points out that Indiana courts have interpreted the word “might” in
this context to mean “would.” See Perkinson, 989 N.E.2d at 764. Thus,
according to Father, reversal is warranted because the court failed to expressly
find that parenting time in Florida would (1) endanger Child’s physical health
and well-being; or (2) significantly impair Child’s emotional development.
[10] Mother appears to concede that the trial court “did not expressly” make a
finding under the statute. Appellee’s Br. at 15. However, Mother asserts that
the other findings nonetheless support the parenting-time restriction. She
directs us to J.M. v. N.M., 844 N.E.2d 590 (Ind. Ct. App. 2006), trans. denied, in
which this Court affirmed a parenting-time order that restricted a parent to only
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 6 of 8 supervised parenting time. Although that restrictive order lacked an express
finding under the statute, the trial court had specifically found that the parent’s
behavior was detrimental to the mental health, well-being, emotional stability,
and development of the child—a finding that this Court determined was
“tantamount to a finding that unsupervised parenting time would significantly
impair . . . emotional development.” J.M., 844 N.E.2d at 600.
[11] Here, however, the court appeared to express concern about Child’s welfare in
light of Child’s past experiences with Father in addition to Father’s history of
substance abuse, dishonesty, and relatively brief sobriety—but the court fell
short of finding that Child would be endangered or developmentally impaired by
time with Father in Florida. Although the court generally found that time in
Florida was not in Child’s best interests, the order reads as though Child might
be endangered—speculation that does not support the burdensome restriction of
conducting all parenting time more than 700 miles from Father’s residence.
Thus, despite Mother’s assertion that the evidence and other findings would
collectively support the requisite statutory determination, the order ultimately
does not contain a finding that is specific enough to garner statutory support.
[12] Mother argues, in the alternative, that if the order lacks a requisite finding, then
this Court should remand to give the trial court the opportunity to make that
finding—a path this Court has taken in the past. See, e.g., In re Paternity of
V.A.M.C., 773 N.E.2d 359 (Ind. Ct. App. 2002) (modifying instructions to the
trial court on rehearing, giving the court the opportunity to (1) enter an order
with findings that would support the parenting-time restriction or (2) enter an
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 7 of 8 order without a restriction). We agree that remand is appropriate. See Ind.
Appellate Rule 66 (permitting this Court to “order correction of a judgment or
order” and “grant any other appropriate relief”). We accordingly remand with
instructions that the trial court either (1) enter an order with findings sufficient
to support a restriction under Indiana Code Section 31-14-14-1 or (2) enter an
order without any such restriction. We also instruct the trial court to address all
references to maternal grandmother, correcting the order where appropriate.
[13] Remanded.
Mathias, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018 Page 8 of 8