MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 06 2016, 9:37 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 Mario Garcia Christopher H. Weintraut Brattain Minnix Garcia Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.V., April 6, 2016 Appellant-Respondent, Court of Appeals Case No. 33A01-1511-DR-1921 v. Appeal from the Henry Circuit Court Ja.V., The Honorable Kit C. Dean Crane, Appellee-Petitioner Special Judge Trial Court Cause No. 33C02-1305-DR-125
Crone, Judge.
Case Summary [1] J.V. (“Mother”) appeals the trial court’s order granting Ja.V.’s (“Father’s”)
petition to modify parenting time with respect to the parties’ five minor
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 1 of 7 children. The sole issue presented for our review is whether the trial court
abused its discretion in granting Father’s petition to modify. Specifically,
Mother contends that, in modifying Father’s parenting time, the trial court
failed to properly consider the best interests of the children. Finding no abuse
of discretion, we affirm.
Facts and Procedural History [2] In October 2013, the trial court issued a decree dissolving Mother and Father’s
marriage. The decree provided that the parties would share joint legal custody
of the five minor children with Mother being the primary physical custodian.
The parties agreed that in lieu of Father paying child support to Mother,
Mother would receive the entire monthly social security disability payment due
for the children. 1 In November 2013, Father filed a motion for contempt
against Mother regarding her interference with his parenting time, and in
January 2014, Mother filed an emergency petition for supervised parenting
time. Following a hearing on both motions, the trial court ordered the parties
to attend a parenting workshop and also ordered Father to obtain a
psychological assessment for anger issues. The trial court’s order provided that
Father would have supervised parenting time until further order of the court.
1 We note that Mother has not provided this Court with a copy of the dissolution decree. The Chronological Case Summary provides the foregoing information regarding custody and child support; however, it makes no reference to the original order regarding parenting time.
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 2 of 7 [3] In November 2014, Mother filed a petition for modification of child support.
Then, in January 2015, Father served Mother with a petition to modify
parenting time. In February 2015, Mother filed a petition for contempt based
upon the allegation that Father “has moved between Tennessee and Indiana at
least four times … without giving [Mother] proper notice ….” Tr. at 7. The
trial court held a hearing on all three petitions on July 24, 2015. 2 Father was
represented by counsel at the hearing and Mother appeared pro se.
[4] Regarding Father’s petition to modify parenting time, Mother testified that she
had no objection to having the requirement of supervised visitation removed.
Id. at 11. Mother also stated that she did not object to the children spending
more than half the summer with Father in Tennessee provided that they finish
their spring baseball season. Id. at 15. Mother also agreed that the children
could spend holidays with Father pursuant to the Indiana Parenting Time
Guidelines. Id. at 11, 15. At the conclusion of the hearing, the trial court took
the matter under advisement and subsequently issued the following amended
order: 3
1. The parties are the parents of five children, namely X.V., born July 20, 2001; M.V., born October 1, 2001, C.V., born May 14, 2003; L.V., born September 4, 2005; and
2 It appears that although Father served Mother with his petition to modify parenting time, he did not file the document with the trial court. Both parties agreed in open court that the trial court could address and rule upon Father’s request along with the other filed petitions. 3 We note that the trial court’s order refers to parties as “Petitioner” and “Respondent” and to the minor children by their full names. We use “Father” and “Mother” and the children’s initials where appropriate.
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 3 of 7 S.V., born August 21, 2008. 2. Father lives in Tennessee. The parties shall exchange the minor children for visitation at a half way point, which is the Shell Station off of I75 in Lexington Kentucky. 3. Father shall have unsupervised parenting time with the minor children one week after they are released from school for summer break until one week before school begins. Father shall also be entitled to receive the children at all extended school breaks. However, Mother shall have the option to have either Spring Break or Fall Break if the parties can agree upon the time. All other holiday parenting time shall be by the Indiana Parenting Time Guidelines. 4. Mother is receiving $154.00 per month per child for the younger four children for a total of $616 per month at this time. She also receives $705.00 per month for the minor child [X.V.] for a total of $1,321.00 per month, or $330.25 per week. This amount is substantially more than the $76 per week on the attached child support worksheet. Therefore, Father is not ordered to pay support to Mother. 5. Due to the fact that according to the Indiana Child Support Worksheet Father is ordered to pay $76 per week, or $304.00 per month, and Mother receives $1,321.00 per month, Father is not ordered to pay support and Mother is ordered to pay Father the sum of $330.00 per week to Father for the transportation and care of the minor children while they are in his physical custody.
Appellant’s App. at 12. This appeal ensued.
Discussion and Decision [5] We begin by noting that Father has not filed an appellee’s brief. In such
circumstances, we do not undertake the burden of developing arguments for
him. Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Instead, we
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 4 of 7 apply a less stringent standard of review and will reverse upon a showing of
prima facie error, which is error “at first sight, on first appearance, or on the
face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006).
However, we are still obligated to correctly apply the law to the facts in the
record in order to determine whether reversal is required. Jenkins, 17 N.E.3d at
352.
[6] Mother’s appeal focuses solely on the trial court’s modification of Father’s
parenting time. Specifically, she claims that, in modifying Father’s parenting
time, the trial court failed to properly consider the best interests of the children.
“Modifications of child custody, parenting time, and child support are all
reviewed for abuse of discretion. We grant latitude and deference to our trial
judges in family law matters.” Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind. Ct.
App. 2012) (citations omitted).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 06 2016, 9:37 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 Mario Garcia Christopher H. Weintraut Brattain Minnix Garcia Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.V., April 6, 2016 Appellant-Respondent, Court of Appeals Case No. 33A01-1511-DR-1921 v. Appeal from the Henry Circuit Court Ja.V., The Honorable Kit C. Dean Crane, Appellee-Petitioner Special Judge Trial Court Cause No. 33C02-1305-DR-125
Crone, Judge.
Case Summary [1] J.V. (“Mother”) appeals the trial court’s order granting Ja.V.’s (“Father’s”)
petition to modify parenting time with respect to the parties’ five minor
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 1 of 7 children. The sole issue presented for our review is whether the trial court
abused its discretion in granting Father’s petition to modify. Specifically,
Mother contends that, in modifying Father’s parenting time, the trial court
failed to properly consider the best interests of the children. Finding no abuse
of discretion, we affirm.
Facts and Procedural History [2] In October 2013, the trial court issued a decree dissolving Mother and Father’s
marriage. The decree provided that the parties would share joint legal custody
of the five minor children with Mother being the primary physical custodian.
The parties agreed that in lieu of Father paying child support to Mother,
Mother would receive the entire monthly social security disability payment due
for the children. 1 In November 2013, Father filed a motion for contempt
against Mother regarding her interference with his parenting time, and in
January 2014, Mother filed an emergency petition for supervised parenting
time. Following a hearing on both motions, the trial court ordered the parties
to attend a parenting workshop and also ordered Father to obtain a
psychological assessment for anger issues. The trial court’s order provided that
Father would have supervised parenting time until further order of the court.
1 We note that Mother has not provided this Court with a copy of the dissolution decree. The Chronological Case Summary provides the foregoing information regarding custody and child support; however, it makes no reference to the original order regarding parenting time.
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 2 of 7 [3] In November 2014, Mother filed a petition for modification of child support.
Then, in January 2015, Father served Mother with a petition to modify
parenting time. In February 2015, Mother filed a petition for contempt based
upon the allegation that Father “has moved between Tennessee and Indiana at
least four times … without giving [Mother] proper notice ….” Tr. at 7. The
trial court held a hearing on all three petitions on July 24, 2015. 2 Father was
represented by counsel at the hearing and Mother appeared pro se.
[4] Regarding Father’s petition to modify parenting time, Mother testified that she
had no objection to having the requirement of supervised visitation removed.
Id. at 11. Mother also stated that she did not object to the children spending
more than half the summer with Father in Tennessee provided that they finish
their spring baseball season. Id. at 15. Mother also agreed that the children
could spend holidays with Father pursuant to the Indiana Parenting Time
Guidelines. Id. at 11, 15. At the conclusion of the hearing, the trial court took
the matter under advisement and subsequently issued the following amended
order: 3
1. The parties are the parents of five children, namely X.V., born July 20, 2001; M.V., born October 1, 2001, C.V., born May 14, 2003; L.V., born September 4, 2005; and
2 It appears that although Father served Mother with his petition to modify parenting time, he did not file the document with the trial court. Both parties agreed in open court that the trial court could address and rule upon Father’s request along with the other filed petitions. 3 We note that the trial court’s order refers to parties as “Petitioner” and “Respondent” and to the minor children by their full names. We use “Father” and “Mother” and the children’s initials where appropriate.
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 3 of 7 S.V., born August 21, 2008. 2. Father lives in Tennessee. The parties shall exchange the minor children for visitation at a half way point, which is the Shell Station off of I75 in Lexington Kentucky. 3. Father shall have unsupervised parenting time with the minor children one week after they are released from school for summer break until one week before school begins. Father shall also be entitled to receive the children at all extended school breaks. However, Mother shall have the option to have either Spring Break or Fall Break if the parties can agree upon the time. All other holiday parenting time shall be by the Indiana Parenting Time Guidelines. 4. Mother is receiving $154.00 per month per child for the younger four children for a total of $616 per month at this time. She also receives $705.00 per month for the minor child [X.V.] for a total of $1,321.00 per month, or $330.25 per week. This amount is substantially more than the $76 per week on the attached child support worksheet. Therefore, Father is not ordered to pay support to Mother. 5. Due to the fact that according to the Indiana Child Support Worksheet Father is ordered to pay $76 per week, or $304.00 per month, and Mother receives $1,321.00 per month, Father is not ordered to pay support and Mother is ordered to pay Father the sum of $330.00 per week to Father for the transportation and care of the minor children while they are in his physical custody.
Appellant’s App. at 12. This appeal ensued.
Discussion and Decision [5] We begin by noting that Father has not filed an appellee’s brief. In such
circumstances, we do not undertake the burden of developing arguments for
him. Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Instead, we
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 4 of 7 apply a less stringent standard of review and will reverse upon a showing of
prima facie error, which is error “at first sight, on first appearance, or on the
face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006).
However, we are still obligated to correctly apply the law to the facts in the
record in order to determine whether reversal is required. Jenkins, 17 N.E.3d at
352.
[6] Mother’s appeal focuses solely on the trial court’s modification of Father’s
parenting time. Specifically, she claims that, in modifying Father’s parenting
time, the trial court failed to properly consider the best interests of the children.
“Modifications of child custody, parenting time, and child support are all
reviewed for abuse of discretion. We grant latitude and deference to our trial
judges in family law matters.” Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind. Ct.
App. 2012) (citations omitted). We neither reweigh the evidence nor reassess
witness credibility, but consider only the evidence most favorable to the trial
court’s judgment and the inferences flowing therefrom. Id. “On appeal it is not
enough that the evidence might support some other conclusion, but it must
positively require the conclusion contended for by the appellant before there is a
basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (citation
omitted).
[7] We have long recognized that the right of parents to visit their children is a
precious privilege that should be enjoyed by noncustodial parents. Lasater v.
Lasater, 809 N.E.2d 380, 400-01 (Ind. Ct. App. 2004). Accordingly, a parent
not granted custody of the child is entitled to reasonable parenting time rights.
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 5 of 7 Ind. Code § 31-17-4-1. Indiana Code Section 31-17-4-2 provides in relevant
part that a “court may modify an order granting or denying parenting time
rights whenever modification would serve the best interests of the child.” “In
all visitation controversies, courts are required to give foremost consideration to
the best interests of the child[ren].” Hatmaker v. Hatmaker, 998 N.E.2d 758, 760
(Ind. Ct. App. 2013) (quoting Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct.
App. 1998), trans. denied (1999)). It is well settled that if the record reveals a
rational basis supporting the trial court’s determination, no abuse of discretion
occurred. Pennington v. Pennington, 596 N.E.2d 305, 306 (Ind. Ct. App. 1992),
trans. denied.
[8] Our review of the record reveals a rational basis supporting the trial court’s
modification of Father’s parenting time. During the evidentiary hearing, Father
requested that the children be permitted to spend more than fifty percent of the
summer with him as well as holidays and school breaks. Father testified that he
was willing to compromise and work with Mother regarding holiday schedules
in the event that she wants to take a vacation or spend additional time with the
children. In sum, Father simply requested that he “receive as much time as
possible with the children[.]” Tr. at 19. From what we can discern from the
record, Mother did not really disagree. At the time of the hearing, X.V. had
just returned from spending virtually the whole summer with Father and the
other children had spent a considerable portion of the summer with Father, at
Mother’s specific request. Mother stated that, going forward, she did not object
to the children spending more than half of the summer with Father in
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 6 of 7 Tennessee as long as it does not interfere with the children’s baseball season.
Mother further agreed that Father should be given parenting time on holidays
pursuant to the Indiana Parenting Time Guidelines. Due to the parties’ basic
agreement on these issues, the record supports a conclusion that modification of
Father’s parenting time would serve the best interests of the children.
[9] Mother’s main complaint on appeal appears to be that the trial court failed to
directly address the children’s best interests in its order, and more specifically
her concerns regarding Father’s “lack of communication” and his inability “to
co-parent their children in a cooperative manner.” Appellant’s Br. at 4, 8.
However, the trial court heard the parties’ testimony regarding their
communication and co-parenting efforts thus far, and implicit in the trial court’s
order is the court’s belief that the parties are equipped to work together to
resolve any issues for the good of the children. We will not reweigh the
evidence and we defer to the trial court’s judgment in this regard.
[10] Mother has not established that the trial court’s order modifying Father’s
parenting time constitutes an abuse of discretion or prima facie error.
Accordingly, we affirm the trial court’s order.
[11] Affirmed.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 33A01-1511-DR-1921 | April 6, 2016 Page 7 of 7