Karen Ellen Fielder v. Brandon Eric Fielder (mem.dec.)

• Court: Indiana Court of Appeals
• Decided: May 25, 2017
• Docket: 49A02-1609-DR-2038
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 25 2017, 10:25 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT Heather M. Shumaker Schuckit & Associates, PC Zionsville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Karen Ellen Fielder, May 25, 2017 Appellant-Petitioner, Court of Appeals Case No. 49A02- 1609-DR-2038 v. Appeal from the Marion Superior Court Brandon Eric Fielder, The Honorable James B. Osborn, Appellee-Respondent. Judge Trial Court Cause No. 49D04- 1104-DR-12772

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 1 of 11 STATEMENT OF THE CASE [1] Appellant-Petitioner, Karen Fielder (Mother), appeals the trial court’s

modification of her parenting time with the minor children.

[2] We affirm.

ISSUE [3] Mother presents us with one issue on appeal, which we restate as: Whether the

trial court abused its discretion in modifying her parenting time with her minor

children.

FACTS AND PROCEDURAL HISTORY [4] Mother and Appellee-Respondent, Brandon Fielder (Father), have been

involved in protracted dissolution of marriage and custody proceedings since

2011. Upon the dissolution of their marriage, Father received sole legal and

physical custody of the three minor children, now 10-year-old Ke.F., 13-year-

old Ky.F, and 17-year-old B.F. Mother was granted supervised parenting time

and was ordered to pay child support. On April 26, 2016, the trial court

modified Mother’s parenting time schedule, granting her unsupervised visits

with Ke.F. and Ky.F. for five hours every other weekend. On May 19, 2016,

Mother filed a motion to modify custody, requesting sole physical custody of

the minor children.

[5] On August 15, 2016, the trial court conducted a hearing on Mother’s motion.

During the hearing, the children’s Guardian ad Litem, David Reed (GAL

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 2 of 11 Reed), testified as to his recommendations with respect to Mother’s motion.

GAL Reed recommended leaving sole physical and legal custody with Father

because the “children are doing very well in his care, and they are succeeding.”

(Transcript p. 159). Expressing his surprise that the unsupervised visits with

Mother were going well, he advised that Mother’s unsupervised parenting time

should be increased to gradually become more in line with the Indiana

Parenting Time Guidelines (the Guidelines), with the exception of overnight

visitation. To ensure the children’s safety, GAL Reed suggested that the

children have access to a phone to contact Father at any time they feel unsafe or

uncomfortable during the visit. Recognizing that “there’s a positive movement

with regard to the relationship [Mother] has with her children,” GAL Reed

clarified that “extending [her] time actually makes me nervous as to how they

might do going forward. I hope they continue to do well.” (Tr. pp. 161-62,

165).

[6] The trial court extensively questioned GAL Reed as to why he did not

recommend overnight visitation in accordance with the Guidelines. In

response, GAL Reed recalled certain incidents with Mother which occurred

prior to the previous modification, and which had been taken into account

when the previous order had granted Mother limited unsupervised visitation.

GAL Reed mentioned that after the limited unsupervised visitation took effect,

Ke.F. and Ky.F. “began to tell me that they are reluctant to spend the night

with their [M]other.” (Tr. p. 164). “When I ask them what they want to see

happen, they have both [] expressed the desire to spend more time with their

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 3 of 11 [M]other, [], which I think is healthy, but they have both voiced reservations

about spending the night with her.” (Tr. pp. 164-65). GAL Reed tempered his

remarks and indicated that he could envision a time when overnight visits

would be appropriate

if things continue to go well with them having extended time together with no issues noted and the children feeling comfortable and feeling safe, [], they have access to a phone; they can contact [Father] if they feel uncomfortable or unsafe, then I could consider at some point down the road thinking that would be a reasonable thing to do.

(Tr. p. 165).

[7] Likewise, Father expressed his surprise that the five-hour unsupervised visits

were going well: “[D]uring those five hour visits during the day, [] she keeps

going from event to event, . . ., keeping the kids occupied during the entire time

with the things that they’re doing, which makes it a little easier as opposed to

just home time.” (Tr. p. 174). In line with GAL Reed’s recommendation,

Father opined that “extending the visits would still be appropriate at this time

just because [the children] have not expressed any deep concerns to me. [M]y

concern is that still if they go into much longer or overnight during those down

times when kids aren’t doing something every minute that is that where it could

get more stressful on her. That’s my only concern.” (Tr. p. 175).

[8] The following day, on August 16, 2016, the trial court issued its Order on

Mother’s motion for modification of child custody, which concluded, in

pertinent part: Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 4 of 11 1. Since the last [c]ourt Order modifying parenting time, nothing has changed that would support the [c]ourt’s granting Mother’s request for full custody. Father will continue to have sole physical and legal custody of the children.

2. Since the last [c]ourt Order modifying parenting time, Mother’s unsupervised time with her children has gone without incident. Mother has displayed improved coping skills and more stability than in the past. Therefore Mother’s unsupervised time with [Ky.F. and Ke.F] will be increased to twelve hours every other weekend (either Saturday or Sunday). The parties may agree as to whether the visits occur on Saturday or Sunday and what hours the visits shall take place. But in the absence of agreement, the visits shall take place on Saturdays from 8:00 a.m. to 8:00 p.m. If conflicts arise for these visits on the part of either party, the parties shall communicate with one another via text or email as soon as the conflict is known and arrange an alternative date for the visit. During all times with Mother, the children are allowed to have a cellular telephone and are permitted to contact Father if at any point they feel uncomfortable or unsafe. In that event, Father may immediately retrieve the children.

3. Mother and Father are ordered to actively communicate through the communication book. If the need for more immediate communication arises, Mother and Father may either text or email each other to address the immediate concern.

4. The [c]ourt reminds both Mother and Father that neither should speak negatively about the other parent in the presence of or within earshot of the children.

5. The GAL is directed to conduct a one-month and three- month review with the children to determine how the

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 5 of 11 visitations are proceeding and to take any other action the GAL may deem appropriate.

****

7. All other prior [c]ourt Orders remain in effect.

(Appellant’s App. Conf. Vol., pp. 50-51). 1

[9] Mother now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [10] No longer contesting the denial of a change in custody, Mother focuses her

argument on the trial court’s change in parenting time. Specifically, she

contends that the modification of her parenting time in deviation of the

minimum recommendations under the Guidelines required the trial court to

make a finding that the visitation would endanger her children’s physical health

or significantly impair their emotional development. Because the trial court

failed to make that explicit finding, Mother claims that she is entitled to the

parenting time in accordance with the Guidelines.

1 We recognize that Mother excluded the trial court’s Order from public access pursuant to Appellate Rule 9(G), and therefore, we will endeavor to maintain confidentiality on appeal by omitting certain names and facts. But an appellate judicial opinion that both decides the case and articulates the law requires consideration of the underlying facts. Thus, we have included a number of facts derived from the confidential record because we deem such information essential to the resolution of the litigation and appropriate to further the establishment of precedent and the development of the law. See Drake v. Dickey, 2 N.E.3d 30, 32 (Ind. Ct. App. 2013), aff’d, 12 N.E.3d 875 (Ind. 2014).

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 6 of 11 [11] “In all visitation controversies, courts are required to give foremost

consideration to the best interests of the child.” 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), trans. denied. We review parenting

time decisions for an abuse of discretion. Hatmaker, 998 N.E.2d at 761. A trial

court abuses its discretion when its decision is clearly against the logic and

effect of the facts and circumstances before the court or if the court has

misinterpreted the law. Id. It appears that in the instant case, the trial court

entered sua sponte findings. In such a situation, the specific factual findings

control only the issues that they cover, and a general judgment standard applies

to issues upon which there are no findings. Stone v. Stone, 991 N.E.2d 992, 998

(Ind. Ct. App. 2013), aff’d on reh’g, 4 N.E.3d 666 (Ind. Ct. App. 2013). “It is not

necessary that each and every finding be correct, and even if one or more

findings are clearly erroneous, we may affirm the judgment if it is supported by

other findings or otherwise supported by the record.” Id. We may affirm a

general judgment with sua sponte findings on any legal theory supported by the

evidence. Id. In reviewing the accuracy of the findings, we first consider

whether the evidence supports them. Id. We then consider whether the

findings support the judgment. Id. “We will disregard a finding only if it is

clearly erroneous, which means the record contains no facts to support it either

directly or by inference.” Id.

[12] A judgment also is clearly erroneous if it relies on an incorrect legal standard,

and we will not defer to a trial court’s legal conclusions. Id. at 998-99. We give

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 7 of 11 due regard to the trial court’s ability to assess the credibility of witnesses and

will not reweigh the evidence, and we must consider only the evidence most

favorable to the judgment along with all reasonable inferences drawn in favor of

the judgments. Id. at 999. Additionally, we “give considerable deference to the

findings of the trial court in family law matters.” MacLafferty v. MacLafferty, 829

N.E.2d 938, 940 (Ind. 2005). This deference is a reflection that the trial court is

in the best position to judge the facts, ascertain family dynamics, and judge

witness credibility. Id. “But to the extent a ruling is based on an error of law or

is not supported by the evidence, it is reversible, and the trial court has no

discretion to reach the wrong result.” Id. at 941.

[13] Initially we note that Father did not file an appellate brief. When the appellee

has failed to submit an answer brief we need not undertake the burden of

developing an argument on the appellee’s behalf. Trinity Homes, LLC v. Fang,

848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial court’s

judgment if the appellant’s brief presents a case of prima facie error. Id. Prima

facie error in this context is defined as, “at first sight, on first appearance, or on

the face of it.” Id. Where an appellant is unable to meet this burden, we will

affirm. Id.

[14] Restriction or denial of parenting time as recommended under the Guidelines is

governed by Indiana Code Section 31-17-4-2, which provides as follows:

The court may modify an order granting or denying parenting time rights whenever modification would serve in the best interests of the child. However, the court shall not restrict a

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 8 of 11 parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.

Indiana recognizes that the right of a noncustodial parent to spend time with his

or her children is a “precious privilege.” Duncan v. Duncan, 843 N.E.2d 966,

969 (Ind. Ct. App. 2006), trans. denied. Thus, although a court may modify a

parenting time order when the modification would serve the interest of the child

or children, a parent’s parenting time rights shall not be restricted unless the

court finds that the parenting time might endanger the child’s physical health or

significantly impair the child’s emotional development. Id. Even though the

statute uses the word “might,” we have previously interpreted this language to

mean that a court may not restrict parenting time unless that parenting time

“would” endanger the child’s physical health or emotional development. D.B.

v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009), reh’g denied. A parent

who seeks to restrict a parent’s parenting time rights bears the burden of

presenting evidence justifying such a restriction. Id.

[15] While we agree with Mother that the trial court did not explicitly find that

parenting time in accordance with the Guidelines would endanger the

children’s physical health or significantly impair the children’s emotional

development, the trial court concluded so implicitly. See, e.g., J.M. v. N.M., 844

N.E.2d 590, 600 (Ind. Ct. App. 2006) (Although no express finding was made,

evidence was presented to support the conclusion that unsupervised parenting

time would significantly impair the child’s emotional development.), trans.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 9 of 11 denied. In its findings, the trial court articulated a concern for the children’s

safety by ordering that “[d]uring all times with Mother, the children are allowed

to have a cellular telephone and are permitted to contact Father if at any point

they feel uncomfortable or unsafe.” (Appellant’s Conf. Vol., p. 51).

[16] Moreover, the evidence presented at the hearing supports a similar conclusion.

Even though both GAL Reed and Father expressed surprise at the relative

success of the current unsupervised visitations, both articulated strong

reservations to immediately increase the unsupervised visitation to the

Guidelines’ recommended parenting time. While agreeing that Mother should

receive an increase in visitation time with the children, based on past

experience, they both advised to gradually increase the parenting time so as to

secure the safety of the children and not make these visits too “stressful” for

Mother. (Tr. p. 175). Even the children voiced a hesitation, through GAL

Reed’s testimony, to overnight visitation with Mother at this time.

[17] While we recognize that the current unsupervised visitation schedule still falls

shy of the recommended parenting time under the Guidelines, it does represent

an improvement on the previous order and provides Mother with immediate

opportunities for more favorable visitation and a pathway to eventually secure

parenting time in accordance with the Guidelines. Overall, we conclude that

the trial court took a thoughtful approach to the visitation issue and struck a

balance that adequately addresses the concerns of all, while recognizing the

“positive movement” of Mother’s relationship with the children, and by

providing Mother with opportunities for more rewarding parenting time,

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 10 of 11 immediately and in the future. (Tr. p. 162). As the wellbeing of the children is

always our foremost concern, we affirm the trial court that at this time visitation

pursuant to the Guidelines between Mother and the children would endanger

their physical health or significantly impair their emotional development. See

I.C. § 31-17-4-2. Therefore, we conclude that Mother failed to establish an

abuse of discretion by the trial court.

CONCLUSION [18] Based on the foregoing, we hold that the trial court did not abuse its discretion

when it modified Mother’s parenting time.

[19] Affirmed.

[20] May, J. and Bradford, J. concur

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 11 of 11