MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jan 24 2018, 9:15 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Julianne L. Fox April L. Edwards Fox & Lutz, LLC Boonville, Indiana Evansville, Indiana Brent M. Macer Evansville, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.W., January 24, 2018 Appellant-Petitioner, Court of Appeals Case No. 82A05-1707-DR-1700 v. Appeal from the Vanderburgh Superior Court C.W., The Honorable Mary Margaret Appellee-Respondent. Lloyd Judge Trial Court Cause No. 82D05-1511-DR-1499
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 1 of 28 STATEMENT OF THE CASE [1] Appellant-Petitioner, J.W. (Mother), appeals the trial court’s Order, granting
the motions of Appellee-Respondent, C.W. (Father), to amend the parties’
Mediated Settlement Agreement and to hold Mother in contempt.
[2] We affirm.
ISSUES [3] Mother raises four issues on appeal, which we restate as the following five
issues:
(1) Whether the trial court abused its discretion by excluding certain evidence
related to academic testing of the parties’ minor child;
(2) Whether the trial court erred in modifying the Mediated Settlement
Agreement to require the parties’ children to discontinue homeschooling;
(3) Whether the trial court erred by holding Mother in contempt for violating a
parenting time order;
(4) Whether the trial court denied due process to Mother; and
(5) Whether the trial court abused its discretion by ordering Mother to pay a
portion of Father’s attorney fees.
[4] Father raises one additional issue on appeal, which we restate as: Whether
Father is entitled to an award of appellate attorney fees.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 2 of 28 FACTS AND PROCEDURAL HISTORY [5] Father and Mother were married for over eleven years, during which time,
three children were born: J.W., born September 16, 2009; Ja.W., born
December 7, 2011; and H.W., born October 24, 2014 (collectively, the
Children). Throughout their union, Father worked for a railroad company and
owned/managed rental properties while Mother primarily stayed home to care
for the Children. In addition, despite Father’s reluctance about the matter,
Mother elected to begin homeschooling J.W. and Ja.W. when they each
reached approximately preschool age.
[6] On November 18, 2015, Mother filed a petition for dissolution of marriage. On
April 29, 2016, the parties submitted a Mediated Settlement Agreement and
Summary Decree of Dissolution (Mediated Agreement) to the trial court, and
on May 2, 2016, the trial court issued a Decree of Dissolution. In pertinent
part, the parties agreed to
share joint legal custody with the Mother to be primary [physical] custodian of the minor [C]hildren. The [C]hildren will continue to be homeschooled according to the homeschool plan [Mother] has provided to [Father], however the parties reserve the right to litigate this issue if the [C]hildren do not meet annual achievement benchmarks for their age level. The Father shall be entitled to regular parenting time with [J.W. and Ja.W.] for alternate weeks from Friday at 4:00 p.m. to Sunday at 4:00 p.m. as well as mid-week parenting time for three hours after work on Tuesdays and Thursdays each week. The Father acknowledges that given his work schedule, mid-week overnights are not practical. Regular parenting time shall be phased in for the youngest child[, H.W.,] on the following schedule (progressing to
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 3 of 28 the next phase assuming no significant problems develop during the preceding phase):
a) The Tuesday/Thursday mid-week schedule shall be the same as the mid-week schedule for the older children;
b) For three months following the date of this [Mediated Agreement], the Father shall have parenting time with [H.W.] 8:00 a.m. to 4:00 p.m. on every Sunday. The Mother shall drive [H.W.] to the Father’s home on Sunday morning, and the Father shall return [H.W.] to the Mother’s home on Sunday evenings;
c) For the next three months, the Father shall have [H.W.] on alternate weeks (the same weekends as the older children), on Saturday from 8:00 a.m. to 4:00 p.m. and on Sunday from 8:00 a.m. to 4:00 p.m.;
d) For the next three months, the Father shall have one overnight on his alternating weekend, from Saturday at 8:00 a.m. to Sunday at 4:00 p.m.;
e) At the end of this phase in period, [H.W.] shall exercise alternating weeks along with the older children.
(Appellant’s App. Vol. II, pp. 23-24). Additionally, the Mediated Agreement
provided that
Father shall be entitled to . . . [fifteen] extra parenting days for the remainder of 2016, which can be used at any point throughout the year with [thirty] day[s’] notice (because the [C]hildren homeschool and are not subject to a traditional school calendar). The Father shall schedule his extended parenting time no more than three days consecutively (for a total of five days when combined with his weekend). Unless the Father is off work, the Mother shall have the [C]hildren during his work hours on his parenting days. Beginning in Summer 2017, the extended Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 4 of 28 parenting time shall follow the Indiana Parenting Time Guidelines.
(Appellant’s App. Vol. II, p. 24).
[7] In October of 2016, Father inquired with Mother about utilizing his additional
fifteen days of parenting time, noting that he was running out of time to do so
before the end of the year. Mother indicated that she would check the terms of
the Mediated Agreement, and Father raised the matter with her several more
times in October and November, stating that “[i]f I’m supposed to give [thirty]
days[’] notice then I’ll need to use all [fifteen] days in December. Probably the
first and second week and a couple weekends.” (Appellee’s Exh. 1). After
arguing back and forth about the matter, Mother ultimately informed Father
that because his request was made too late in the year and because the
additional parenting time would both interrupt homeschooling and usurp
“practically the entire holiday season,” they would “just continue with the
schedule we have.” (Appellee’s Exh. 1).
[8] On December 8, 2016, Father filed a Verified Petition for Contempt,
contending that Mother had refused his requests to schedule the additional
fifteen days of parenting time to which he was entitled under the Mediated
Agreement. Father also alleged that Mother denied his parenting time with
H.W. over the extended Thanksgiving weekend. Father accused Mother of
“using ‘homeschooling’ as an excuse to prevent [him] from having make up
parenting time and other parenting time with the . . . [C]hildren.” (Appellant’s
App. Vol. II, p. 35). Specifically, Father described that Mother claimed to be Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 5 of 28 “homeschooling the children year round” despite the terms of the Mediated
Agreement, wherein “Mother agreed that her homeschooling would coincide
with the school schedule in place for the Warrick County School District.”
(Appellant’s App. Vol. II, p. 35).
[9] In response, on January 23, 2017, Mother filed a Verified Petition to
Modify/Clarify the Mediated Settlement Agreement, which she amended on
January 27, 2017, to clarify that the Mediated Agreement actually “was
formulated around homeschooling year-round without specified dates in place
for reference” and that Father had failed to timely utilize his additional fifteen
days of parenting time in accordance with the Mediated Agreement’s provision
that such time could not be exercised “in increments of more than five (5)
consecutive nights and was not to be stored up in order to exclude Mother from
holidays.” (Appellant’s App. Vol. II, p. 39).
[10] At the beginning of 2017, Father became concerned about J.W.’s academic
progress. Specifically, after Father enrolled J.W. in a first grade Bible study
class at Father’s church, J.W. indicated that he no longer wished to attend the
class “because the other kids all read a lot better than I do.” (Tr. Vol. II, p. 37).
Father also observed that J.W. struggled to write numbers and letters. Father
further feared that homeschooling would be detrimental for the Children’s
social skills, and he favored public school so that he could “keep up better with
[J.W.’s] schooling.” (Tr. Vol. II, p. 39).
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 6 of 28 [11] Also around this time, Mother began reporting concerns that the Children,
particularly J.W. and H.W., exhibited behavioral changes and anxiety
surrounding their parenting time with Father. Mother described that
[a]fter three months of having one overnight with [Father], each time [H.W.] would return home looking like a different child in my opinion, but I mean she just didn’t look like herself, was unclean, unkept, she was hungry, she was thirsty, she was very, very[] tired, she was not happy, she had difficulty making eye contact, didn’t engage like she normally would, she just didn’t seem like herself.
(Tr. Vol. II, pp. 205-06). Mother also described that H.W. “suddenly began
waking up frequently in the middle of the night with expressions of fear naming
her [F]ather.” (Tr. Vol. II, p. 206). In addition, Mother stated that J.W. was
fearful of Father and would cry to the point of dry heaving prior to Father’s
parenting time. By the end of January 2017, H.W. should have progressed to
the same parenting time schedule as J.W. and Ja.W., which consisted of two
mid-week visits for three hours and from Friday at 4:00 p.m. to Sunday at 4:00
p.m. on alternating weekends. Up to this point, H.W. had been participating in
the mid-week visits and was only spending one night with Father on the
alternating weekends. However, Mother objected to progressing to the final
phase of the modified parenting time arrangement for H.W. based on her belief
that Father was possibly abusing or neglecting the Children. In February of
2017, Mother arranged for all three Children to begin therapy.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 7 of 28 [12] On February 23, 2017, Father filed a Second Verified Petition for Contempt,
this time asserting that Mother failed to abide by the Mediation Agreement’s
phase-in parenting time schedule for H.W. On March 17, 2017, Mother filed
an Emergency Petition to Restrict Parenting Time because “the [C]hildren
exhibit extreme anxiety concerning parenting time with . . . Father such that an
emergency exists.” (Appellant’s App. Vol. II, p. 45). Mother requested that
“parenting time should not be overnight” until “the therapists have the
opportunity to attend to the concerns in this case.” (Appellant’s App. Vol. II, p.
45). The trial court heard argument by counsel and denied the emergency
petition.
[13] On March 30, 2017, Father filed his Third Verified Petition for Contempt,
contending, in relevant part, that Mother refused to allow H.W. to spend Spring
Break with Father. That day, Father also filed a Motion to Compel Testing to
ascertain whether J.W. was meeting the educational benchmarks for his age, as
well as a Motion for Modification of Mediated Settlement Agreement to require
that the Children discontinue homeschooling in light of a concern that J.W.
was “behind in his education.” (Appellant’s App. Vol. II, p. 53).
[14] On April 21, 2017, the trial court held a hearing and subsequently granted
Father’s request to have J.W. academically tested. On May 9, 2017, the
principal of Cynthia Heights Elementary School, part of the Evansville
Vanderburgh School Corporation, administered “a battery of tests” based on
the fact that, for J.W.’s age, he typically “would just have finished up first
grade” and “would be going into second grade” at the start of the school year.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 8 of 28 (Tr. Vol. II, pp. 7-8). In reading, J.W. tested at the level of “a first grader at the
third month.” (Tr. Vol. II, p. 8). Specifically, he tested in the “20th percentile
and what that means is that 80% of the kids at his level are higher than him,
and 19% are lower than him, for his age.” (Tr. Vol. II, p. 9). For language,
J.W. tested “at a grade equivalent of about a first grader, the eight[h] month, so
more towards the end of first grade” in the “46th percentile, so he’s about in the
mid-point.” (Tr. Vol. II, p. 9). Finally, despite “ample time” to complete all of
the testing, J.W. was unable to finish the math portion of the exam. (Tr. Vol.
II, p. 10). The school principal noted that she “often had to keep [J.W.] . . .
motivated” throughout the testing. (Tr. Vol. II, p. 10). The principal ultimately
concluded that J.W. is “behind grade level. . . . [H]e is not where he needs to be
where other second graders are.” (Tr. Vol. II, p. 15).
[15] On the other hand, Mother consulted homeschool resources and opted to
personally administer the “California Achievement Test,” which she described
as “a nationally recognized standardized test,” to evaluate J.W.’s academic
performance in the areas of reading, language arts, and math. (Tr. Vol. II, pp.
241, 244). Over two days, Mother administered the online test in her home and
recorded the process. Throughout the testing, Mother had to motivate J.W. to
continue. She provided guidance on the testing instructions and even read all
of the passages and answer options aloud in the reading section of the test.
J.W. repeatedly expressed his fear of incorrectly answering, indicated that there
were aspects of the test that he had never before seen, and repeatedly looked to
Mother for prompts and reassurance. Nevertheless, Mother reported that “[t]he
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 9 of 28 results showed that [J.W.] was at at least a 2nd grade level in reading, language
arts, and math.” (Tr. Vol. II, p. 242).
[16] On May 11, 2017, Mother filed a Renewed Motion to Restrict Parenting Time,
again claiming that “the [C]hildren are exhibiting extreme anxiety concerning
parenting time” and requesting that “parenting time be restricted to not include
overnights or limit the number of overnights permitted consecutively.”
(Appellant’s App. Vol. II, p. 59). Mother argued that the parties are unable to
communicate and indicated that she was requesting an award of sole legal
custody. On May 24, 2017, Mother filed a motion to withdraw her petitions
filed on January 23, 2017, January 27, 2017, and May 11, 2017 (for clarification
of the Mediated Agreement and restricted parenting time), and filed a specific
motion for modification of custody. Mother alleged that there had “been a
substantial and continuing change in circumstances such that the current order
[was] no longer in the best interest of the [Children].” (Appellant’s App. Vol.
II, p. 75). Mother requested that she be granted sole legal custody and that
Father’s parenting time be restricted based on her belief that “overnight
parenting time with Father is endangering the [C]hildren’s physical health
and/or their emotional well being is being significantly impaired as the
[C]hildren exhibit extreme anxiety concerning parenting time with the Father,
have described concerning events to the therapists, and refer to being afraid or
scared of Father.” (Appellant’s App. Vol. II, pp. 75-76). On May 25, 2017,
Father objected to the withdrawal of Mother’s motions in lieu of a motion to
modify custody. With the hearing set for less than a week away, Father argued
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 10 of 28 that Mother’s newly stated legal position would cause him prejudice. Although
the record is unclear, it does not appear that the trial court granted Mother’s
motion to withdraw her prior petitions; instead, the trial court scheduled
Mother’s motions to modify custody and to restrict parenting time for a hearing
on August 21, 2017.
[17] On June 1 and 7, 2017, the trial court conducted a hearing on Father’s three
contempt motions and his motion to modify the Mediated Agreement regarding
the Children’s schooling, as well as Mother’s request for an interim order on
restricted parenting time. With respect to the Children’s education, Father and
Mother each submitted their divergent evidence concerning J.W.’s test scores.
Regarding parenting time, Mother submitted video recordings that depicted
J.W. and H.W. upset in anticipation of, and sometimes after, parenting time
with Father, whereas Father submitted video evidence demonstrating that the
Children do not exhibit emotional distress during his parenting time. Father
further submitted notes from the Children’s therapy sessions, wherein J.W. and
Ja.W., in varying terms, spoke negatively of Father and expressed not wanting
to spend time with him. However, J.W. also indicated to the therapist that
some of his feelings were based on things that “[Mother] told him”—including,
in part, that “[Father] pretends to be nice but is mean.” (Appellee’s Exh. 8a).
[18] On July 18, 2017, the trial court issued an Order. The trial court granted
Father’s request that Mother discontinue homeschooling for J.W. and Ja.W.,
instead finding it to be in their best interest to attend public school. The trial
court further found Mother to be in contempt for “willfully and intentionally”
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 11 of 28 violating the court’s prior order regarding parenting time. (Appellant’s App.
Vol. II, p. 4). Specifically, the trial court found that Mother had denied the
extra fifteen days of parenting time to which Father was entitled, and Mother
withheld overnight parenting time with H.W. in accordance with the phase-in
parenting time arrangement. As a consequence for Mother’s contempt, the trial
court ordered her to pay $5,000 toward Father’s attorney fees. The trial court
also entered an “Interim Order” for parenting time, which provided that H.W.
would be on the same parenting time schedule as J.W. and Ja.W., that Father
would have the Children for a sixteen-day block during the summer, and that
Father would be entitled to have an additional seven weekends of parenting
time to make up for the days that he was denied. (Appellant’s App. Vol. II, p.
6). The trial court ordered the parties to appear on August 21, 2017, “for
further hearing on [Mother’s] request for restricted parenting time[] and Petition
to Modify Custody.” (Appellant’s App. Vol. II, p. 7).
[19] On July 19, 2017, Mother filed a motion to withdraw her motion for sole legal
custody, and on July 22, 2017, she filed an emergency petition to stay the trial
court’s July 18, 2017 Order. The trial court denied her motion to stay on July
24, 2017. On July 27, 2017, Mother filed her Notice of Appeal. Then, on
August 1, 2017, she moved to dismiss her motion for restricted parenting time,
which the trial court granted on August 2, 2017. The trial court subsequently
vacated the August 21, 2017 hearing date.
[20] Mother now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 12 of 28 DISCUSSION AND DECISION I. Standard of Review
[21] In this case, the trial court’s Order includes sua sponte findings of fact and
conclusions thereon. In accordance with Indiana Trial Rule 52(A), our court
“shall not set aside the findings or judgment unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the credibility
of the witnesses.” On review, “we look only to whether the evidence supports
the findings, and then whether the findings support the judgment, without
reweighing the evidence or reassessing witness credibility.” In re Marriage of
Gertiser, 45 N.E.3d 363, 369 (Ind. 2015) (internal citation omitted). The trial
court’s findings “are controlling unless the record contains ‘no facts to support
them either directly or by inference.’” Id. Legal conclusions, on the other
hand, are reviewed de novo. Id. As to any issues not covered by the trial court’s
findings, we apply a general judgment standard and will “affirm based on any
legal theory supported by the evidence.” Steele-Giri v. Steele, 51 N.E.3d 119, 124
(Ind. 2016).
[22] Furthermore, our court will adhere to a long-established preference “for
granting latitude and deference to our trial judges in family law matters.” Id.
“Appellate courts ‘are in a poor position to look at a cold transcript of the
record, and conclude that the trial judge, who saw the witnesses, observed their
demeanor, and scrutinized their testimony as it came from the witness stand,
did not properly understand the significance of the evidence.’” Id. (quoting Kirk
v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). Thus, on appeal, “it is not enough
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 13 of 28 that the evidence might support some other conclusion, but it must positively
require the conclusion contended for by appellant before there is a basis for
reversal.” Id. (quoting Kirk, 770 N.E.2d at 307).
II. Admission of Evidence
[23] Mother claims that the trial court abused its discretion by excluding the results
of the California Achievement Test from evidence. It is well established that
trial courts have sound discretion to admit or exclude evidence. D.B.M. v. Ind.
Dep’t of Child Servs., 20 N.E.3d 174, 178-79 (Ind. Ct. App. 2014), trans. denied.
We will find an abuse of the trial court’s discretion if its decision is contrary to
“the logic and effect of the facts and circumstances before it.” Id. at 179. Even
where the trial court errs in an evidentiary decision, our court will only reverse
“if we conclude the admission [or exclusion] affected a party’s substantial
rights.” Id.
[24] During the hearing, Mother submitted a flash drive, Exhibit C, which was
admitted into evidence without objection. Among the files on the flash drive
are video recordings of Mother administering the California Achievement Test
to J.W., as well as a copy of the test results. Mother also testified that the
results of the California Achievement Test demonstrated that J.W. was then
performing at a second grade level. Later in the hearing, Mother sought to
specifically admit Exhibit F, “the achievement testing results.” (Tr. Vol. II, p.
248). Father objected based on a lack of foundation for the document, citing
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and arguing
that Mother “has no educational background, she’s not testified that she’s ever
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 14 of 28 administered [an] achievement test before, she has not demonstrated that this
particular test was appropriate for a [seven] year old, that it’s commonly used,
commonly accepted to provide accurate results.” (Tr. Vol. II, pp. 248-49).
Mother now claims that the trial court erroneously excluded “hard copies of the
results” despite admitting the electronic version contained on the flash drive.
(Appellant’s Br. p. 10).
[25] Here, we need not address the Daubert and Indiana Evidence Rule 702
arguments presented by the parties as to whether the evidence was properly
excluded or if the reliability of the test results should simply have impacted the
evidentiary weight accorded by the trial court. Mother testified as to how she
selected the California Achievement Test, how she administered the test
(including video footage), and specifically to the results of the California
Achievement Test. Thus, any error in the denial of admission of the document 1
would be harmless as it is “merely cumulative” of Mother’s testimony. D.B.M.,
20 N.E.3d at 179 (“In general, the admission of evidence that is merely
cumulative of other evidence amounts to harmless error as such admission does
not affect a party’s substantial rights.”).
1 Again, we reiterate that the results of the California Achievement Test were, in fact, included on the flash drive, which was admitted in its entirety without objection. Thus, it is not entirely clear what evidence, if any, was excluded or why this matter is now before our court.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 15 of 28 III. Modification of Mediated Agreement: Homeschooling
[26] Mother claims that the trial court erred by modifying the Mediated Agreement
to require that the Children attend public school. In a dissolution proceeding,
“parties are free to draft their own settlement agreement” which is “contractual
in nature” and “binding upon the parties.” Shorter v. Shorter, 851 N.E.2d 378,
382-83 (Ind. Ct. App. 2006). Thus, the general rules governing contracts are
also applicable to settlement agreements. Id. at 383. As with other contracts,
interpretation of a settlement agreement “generally presents a question of law”
and is reviewed de novo. Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010);
Zan v. Zan, 820 N.E.2d 1284, 1287 (Ind. Ct. App. 2005). Where a settlement
agreement’s terms are clear and unambiguous, they “are deemed conclusive,”
and we “will not construe the contract or look to extrinsic evidence, but will
merely apply the contractual provisions.” Shorter, 851 N.E.2d at 383. “Terms
are not ambiguous merely because the parties disagree as to the proper
interpretation of those terms.” Id.
[27] Pursuant to the Mediated Agreement, Father and Mother originally agreed that
the Children would “continue to be homeschooled according to the
homeschool plan [Mother] . . . provided to [Father], however the parties reserve
the right to litigate this issue if the [C]hildren do not meet annual achievement
benchmarks for their age level.” (Appellant’s App. Vol. II, p. 23) (emphasis
added). The trial court concluded that the academic evidence presented
established that J.W. was “not achieving the annual achievement bench marks
for his age level by [Mother] homeschooling him. Furthermore, since [Mother]
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 16 of 28 by her own words finds [Ja.W.’s] aptitude [to be ‘like J.W.’],” the trial court
ordered that it would serve the best interests of both J.W. and Ja.W. 2 to attend
public school (or private school if so agreed by the parties). (Appellant’s App.
Vol. II, p. 4).
[28] In support of its decision, the trial court relied on the testimony of the Cynthia
Heights Elementary School principal that J.W., who should be entering second
grade based on his age, was “behind grade level.” (Tr. Vol. II, p. 15). In
reading, J.W. tested at the level of “a first grader at the third month”—
specifically, in the 20th percentile compared to his peers. (Tr. Vol. II, p. 8). For
language, J.W. tested “at a grade equivalent of about a first grader, the eight[h]
month, so more towards the end of first grade”—in the 46th percentile. (Tr.
Vol. II, p. 9). Finally, despite “ample time” to complete all of the testing, J.W.
was unable to finish the math portion of the exam. (Tr. Vol. II, p. 10). The
trial court noted the principal’s testimony that she had to continually motivate
J.W. to complete the testing. In addition, the trial court considered Mother’s
evidence that J.W. was “working at a second grade level in all areas.”
(Appellant’s App. Vol. II, p. 4). Yet, the trial court discussed that throughout
Mother’s video recordings of J.W. taking the California Achievement Test,
J.W. “appear[ed] anxious, stressed and at one point beg[an] to tear up.”
(Appellant’s App. Vol. II, p. 4). The trial court further observed that “[a]t one
2 At the time of these proceedings, only J.W. and Ja.W. were homeschooled as H.W. had not yet reached school age.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 17 of 28 point” during the California Achievement Test, J.W. “remark[ed], ‘I usually
don’t do this type of math[,]’ [t]o which[ Mother] replied, ‘that’s not true.’”
(Appellant’s App. Vol. II, p. 4).
[29] Mother now argues that
[t]he [trial] court relied solely upon . . . [the testimony of the Cynthia Heights Elementary School principal] regarding [J.W.’s] age in regard to the Evansville Vanderburgh School Corporation policy, not upon the statute regarding mandatory school attendance and solely discounting her testimony regarding her lack of knowledge on statutory age being seven for mandatory attendance. Moreover, although the court acknowledged Mother’s Exhibit C regarding [J.W.] taking the California Achievement Test, the court discounted the results included on the Exhibit C[] thumb drive which was admitted without objection.
(Appellant’s Br. p. 10) (internal citation omitted). Concerning her mandatory
school age argument, Mother cites Indiana Code section 20-33-2-8, which
provides that “[a] student is not bound by the requirements of [compulsory
school attendance] until the student becomes seven (7) years of age.” Thus, by
age seven, “the parent of a student who would otherwise be subject to
compulsory school attendance” must certify to the superintendent of the
applicable school corporation that the parent intends to either enroll the student
in a non-accredited, non-public school or to “begin providing the student with
instruction equivalent to that given in the public schools.” I.C. § 20-33-2-8.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 18 of 28 [30] The plain language of the Mediated Agreement allows re-litigation of the
homeschooling issue if the Children fail to reach “annual achievement
benchmarks for their age level.” (Appellant’s App. Vol. II, p. 23). Mother
asserted during the hearing that because J.W. was not even required to begin
school until age seven, regardless of whether he was testing at a first or second
grade level, he satisfied the benchmarks for a seven-year-old. We disagree. A
child may enroll in kindergarten if he is “at least five (5) years of age on August
1 of the school year.” I.C. § 20-33-2-7. As the Cynthia Heights Elementary
School principal testified, for a seven-year-old child (who would turn eight
during the school year), the public school system would generally expect J.W.
to be completing second grade work and, in fact, would automatically have
enrolled J.W. in second grade based on his age alone. According to Indiana
Code section 20-33-2-8, in a homeschool setting, Mother would be required to
provide the equivalent instruction that a public school would provide to a
seven-year-old. Based on the testing administered by the Cynthia Heights
Elementary School principal, J.W. was performing below this level. Any
argument as to whether J.W. was, in fact, performing at a first or second grade
level based on the varying academic tests administered would amount to a
request for reweighing of the evidence, which we will not do. Instead, we
conclude that there is evidence in the record that J.W. was performing below
his benchmark to support the trial court’s decision to order that homeschooling
be discontinued.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 19 of 28 IV. Contempt: Parenting Time
[31] Mother next claims that the trial court erred by finding her in contempt based
on her denial of Father’s parenting time. “Whether a person is in contempt of a
court order is a matter within the trial court’s discretion.” Paternity of J.W. v.
Piersimoni, 79 N.E.3d 975, 981 (Ind. Ct. App. 2017). We will overturn a finding
of contempt only for an abuse of discretion—that is, if the trial court’s decision
is against the logic and effect of the facts and circumstances before it. Clary-
Ghosh v. Ghosh, 26 N.E.3d 986, 993 (Ind. Ct. App. 2015), trans. denied. A
finding of contempt is proper where a party willfully disobeys any lawfully
entered court order. Id. In this case, Mother bears the burden of demonstrating
that her violation of the trial court’s parenting time order, as set forth in the
Mediated Agreement and incorporated into the divorce decree, “was not
willful.” Id. On appeal, Mother only challenges the trial court’s finding of
contempt with respect to her denial of Father’s parenting time with H.W. in
accordance with the phase-in schedule; she does not claim any error in the trial
court’s finding of contempt related to the denial of Father’s extra fifteen days of
parenting time.
[32] “The right of a non-custodial parent to visit with his or her children is a sacred
and precious privilege, and, ideally, a child should have a well-founded
relationship with both parents.” In re Paternity of P.B., 60 N.E.3d 1092, 1098
(Ind. Ct. App. 2016). In this case, Father and Mother mutually agreed that
H.W.’s phase-in parenting time would proceed on schedule “assuming no
significant problems develop[ed] during the preceding phase.” (Appellant’s
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 20 of 28 App. Vol. II, p. 23). By February of 2017, H.W. had been spending one
overnight at Father’s house on alternating weekends for at least three months,
and she was scheduled to begin spending two nights on alternating weekends—
i.e., to be on the same parenting time schedule as J.W. and Ja.W. As the trial
court found, Mother did not agree “to phase beyond one (1) overnight because
[H.W.] had changes in behavior, appearance, and sleep. [Mother] added that
after overnights[,] [H.W.] was hungry, thirsty, dirty, made no eye contact, was
not like herself, and was out of sorts.” (Appellant’s App. Vol. II, p. 5).
Nevertheless, the trial court determined that based on
the evidence to date, and with the understanding that the [c]ourt will receive further evidence including the therapists of the [C]hildren at the next hearing date, the [c]ourt does not find the evidence presented shows any “significant problems” have developed in the phase-in period to justify [H.W.’s] parenting time being different from her brothers.
(Appellant’s App. Vol. II, p. 5). Rather, Mother “willfully and intentionally
denied overnights of [H.W.] to [Father].” (Appellant’s App. Vol. II, p. 5).
[33] Mother now contends that she “has never waivered in her assertion that
‘significant problems’ occurred with the phasing in of overnights such that the
last phase of parenting time should not occur.” (Appellant’s Br. p. 12).
“[W]ithout prior notification as to what the trial court would consider
‘significant,’ Mother [argues that she] cannot be held in contempt if she
genuinely held the belief the problems were significant.” (Appellant’s Br. p.
12). In turn, Father argues that the trial court properly found Mother to be in
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 21 of 28 contempt because Mother’s “subjective belief that there were significant
problems that should have prevented H.W. from completing the phase[-]in
parenting time with her Father is not enough nor is it even credible in light of
the other testimony and evidence.” (Appellee’s Br. pp. 20-21). Specifically,
Father points out that the therapy records indicate that “the only thing negative
documented was Mother’s conduct of saying negative things about Father to
the [C]hildren,” and “Father’s videotapes and testimony directly contradicted
that there were any problems.” (Appellee’s Br. p. 20).
[34] We cannot say that the trial court abused its discretion. Mother submitted
video evidence of J.W. and H.W. crying in anticipation of their parenting time
with Father, and she recorded conversations with J.W. and H.W., wherein two-
year-old H.W. referred to Father as “scary,” “mean,” and “hateful,” and
wherein seven-year-old J.W. alleged, in part, that Father had punched him 3 and
criticized him for his academic performance. (Appellant’s Exh. C). Mother
also testified that J.W. and H.W. experienced sleep and digestive issues and
anxiety in relation to their parenting time with Father, and she surmised that
H.W.’s aggressive play with one of her dolls was indicative of H.W. acting out
her fears of Father. In turn, Father submitted video evidence of the Children
playing normally and having fun during his parenting time. He acknowledged
that J.W. and H.W. are sometimes reluctant at the beginning of parenting time,
but that their emotions quickly fade and the Children do not have problems
3 Mother acknowledged that she observed no bruises or other evidence of physical abuse.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 22 of 28 while in his care. Father also presented notes from the Children’s therapy
sessions, in which there is evidence that the Children’s negative comments
about Father may stem from their conversations with Mother rather than their
actual experiences. It was incumbent upon the trial court to consider and weigh
the conflicting evidence and make credibility determinations, and we do not
interfere with those decisions. See Clary-Ghosh, 26 N.E.3d at 993 (noting that, in
reviewing a contempt finding, the appellate court does not reweigh evidence or
judge the credibility of witnesses). Here, the trial court clearly accorded
credibility to Father’s evidence establishing that there are no “significant
problems” to warrant delaying H.W.’s parenting time schedule. (Appellant’s
App. Vol. II, p. 23). Absent “a firm and definite belief that a mistake has been
made” in holding Mother in contempt, we now affirm the trial court. Clary-
Ghosh, 26 N.E.3d 986 at 993.
V. Due Process
[35] Mother claims that the trial court violated her right to due process by
“prematurely order[ing] a modification of parenting time and foreclos[ing]
upon Mother’s Motion for Restricted Parenting Time set before the court on
August 21, 2017.” (Appellant’s Br. p. 13). In other words, Mother contends
that she had moved “to restrict Father’s parenting time on two occasions, and
the issue was set for August 21, 2017.” (Appellant’s Br. p. 13). According to
Mother, the trial court could not determine that significant issues had arisen
with respect to H.W.’s phase-in parenting time schedule until the therapists
testified at the August 21, 2017 hearing.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 23 of 28 [36] We are perplexed by Mother’s argument. At Mother’s request, the trial court
entered an interim parenting time order pending the hearing on Mother’s
motions to restrict Father’s parenting time and for sole legal custody. The
interim parenting time order honored the original Mediated Agreement’s intent
that H.W. would eventually maintain the same parenting time schedule as J.W.
and Ja.W. As to whether any significant issues had arisen to prevent H.W.
from progressing to the final phase of her modified parenting time schedule, the
trial court found Mother in contempt based on the evidence presented—
namely, that Mother had unilaterally determined to restrict Father’s parenting
time based on her unsupported perception of “significant problems.”
(Appellant’s App. Vol. II, p. 23). The contempt issue was squarely before the
trial court, but Mother did not call the Children’s therapists to testify in support
of her position that she did not willfully violate the parenting time order.
Moreover, because Mother subsequently moved for dismissal of her motion to
restrict parenting time, the trial court vacated the August 21, 2017 hearing date.
Therefore, we ultimately find that Mother has waived any due process
argument for our review.
VI. Attorney Fees
[37] Lastly, Mother claims that the trial court erroneously ordered her to pay
Father’s attorney fees. A “trial court has inherent authority to award attorney
fees for civil contempt.” Clary-Ghosh, 26 N.E.3d at 995. An award of attorney
fees is reviewed on appeal under the abuse of discretion standard, and we will
reverse only if the trial court’s decision is clearly against the logic and effect of
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 24 of 28 the facts and circumstances before the court. Bessolo v. Rosario, 966 N.E.2d 725,
733 (Ind. Ct. App. 2012), trans. denied.
[38] “The objective of a contempt citation is not to punish but to coerce action for
the benefit of the aggrieved party. Thus, any type of remedy in civil contempt
proceedings must be coercive or remedial in nature.” Kahn v. Baker, 36 N.E.3d
1103, 1114 (Ind. Ct. App. 2015), trans. denied. Because of a trial court’s
inherent authority to enforce compliance with its order and decrees, no
statutory sanction is required “to compensate the aggrieved party for losses and
damages resulting from another’s contemptuous actions.” Id. at 1116.
Nonetheless, Indiana Code section 31-17-7-1 specifically authorizes a trial court
to “order a party to pay a reasonable” attorney fees related to maintaining or
defending an action involving parenting time rights.
In assessing attorney’s fees, the trial court may consider such factors as the resources of the parties, the relative earning ability of the parties, and other factors bearing on the reasonableness of the award. In addition, any misconduct on the part of a party that directly results in the other party incurring additional fees may be taken into consideration.
Bessolo, 966 N.E.2d at 733. A trial court is not obligated to give its reasons for
its decision to award attorney fees. Id.
[39] Here, Father presented evidence that he had expended $10,641.39 in attorney
fees to pursue modification of the homeschooling arrangement and to establish
Mother’s contempt. Based on its finding of Mother’s contempt, the trial court
“ordered [her] to pay $5,000.00 of [Father’s] attorney fees. She shall pay Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 25 of 28 $500.00 twice per month on the first and fifteenth day of each month until paid
in full.” (Appellant’s App. Vol. II, p. 6). Mother now complains that the trial
court failed to acknowledge whether she “had the ability to pay or her
resources.” (Appellant’s Br. p. 14). Mother contends that the child support
worksheet, attached to the Mediated Agreement, demonstrates that her weekly
income is $500.00, which is “four times” less than Father’s income.
(Appellant’s Br. p. 14). Thus, she contends that to “tak[e] away a full week’s
wages” is “punitive in nature.” (Appellant’s Br. p. 14).
[40] A review of the child support worksheet indicates that Mother’s income, at the
time the parties were divorced in April of 2016, was actually $300.00 per week,
whereas Father was earning $1,285.00 per week. In text messages exchanged
between Mother and Father, it does appear that Mother is now employed in
some fashion on at least a part-time basis, but no other evidence was presented
concerning her current income. Nevertheless, the parties’ Mediated Agreement
was part of the record, and, in addition to the child support worksheet, it
discussed the distribution of marital assets. Specifically, there was evidence
before the trial court that Mother, as part of the divorce, received over $33,000
from the parties’ joint account. As Mother’s misconduct was the basis for the
attorney fee award, it was certainly the trial court’s prerogative to order the
payment of attorney fees. Moreover, because “we assume” that the trial court
considered the financial information set forth in the Mediated Agreement in
awarding the attorney fees, we find no abuse of discretion. Bessolo, 966 N.E.2d
at 733.
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 26 of 28 VII. Appellate Attorney Fees
[41] Father claims that he is entitled to an award of appellate attorney fees pursuant
to Indiana Appellate Rule 66(E). Our court is authorized to “assess damages if
an appeal, petition, or motion, or response, is frivolous or in bad faith.
Damages shall be in [our] discretion and may include attorneys’ fees.” Ind.
Appellate Rule 66(E). “Our discretion to award attorney fees . . . is limited,
however, to instances when an appeal is permeated with meritlessness, bad
faith, frivolity, harassment, vexatiousness, or purpose of delay.” Thacker v.
Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). We exercise “extreme
restraint when exercising this power because of the potential chilling effect upon
the exercise of the right to appeal.” Id.
[42] Father claims that “there simply was not any legitimate legal basis for this
appeal and . . . that Mother has brought this appeal in bad faith and to further
harass him and cost him money.” (Appellee’s Br. p. 27). Generally, claims for
appellate attorney fees are “formally categorized” into either “substantive” or
“procedural” bad faith claims. Thacker, 797 N.E.2d at 346. Father’s claim
concerns substantive bad faith, and to prevail, he must demonstrate that
Mother’s “contentions and arguments are utterly devoid of all plausibility.” Id.
Here, Father argues that Mother’s arguments primarily amount to requests for
reweighing of evidence, ignore her failure to take advantage of opportunities to
be heard and present evidence, overlook her own actions in withdrawing
motions, and ignore the applicable abuse of discretion standard. While some of
Mother’s arguments are underdeveloped and certainly meritless, we are mindful
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 27 of 28 of the chilling effect of appellate attorney fees. Furthermore, we do not find
that all of Mother’s arguments are so devoid of plausibility as to warrant
appellate attorney fees. Specifically, we note that Mother’s argument regarding
the application of the statute regarding mandatory school age was a novel and
interesting approach that, based on our de novo review, could have worked in her
favor. Accordingly, we decline Father’s request.
CONCLUSION [43] Based on the foregoing, we conclude that the trial court did not err in modifying
the Mediated Agreement to require the Children to discontinue homeschooling,
and any error in the exclusion of academic testing evidence would be
considered harmless. We further conclude that the trial court acted within its
discretion in finding Mother to be in contempt and ordering her to pay attorney
fees as a result. Mother has waived any claim regarding a violation of due
process. Finally, we conclude that Father is not entitled to an award of
appellate attorney fees.
[44] Affirmed.
[45] Baker, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018 Page 28 of 28