Marriage of Julie C. v. Andrew C.

924 N.E.2d 1249, 2010 Ind. App. LEXIS 517, 2010 WL 1222741
CourtIndiana Court of Appeals
DecidedMarch 30, 2010
Docket49A05-0909-CV-523
StatusPublished
Cited by90 cases

This text of 924 N.E.2d 1249 (Marriage of Julie C. v. Andrew C.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of Julie C. v. Andrew C., 924 N.E.2d 1249, 2010 Ind. App. LEXIS 517, 2010 WL 1222741 (Ind. Ct. App. 2010).

Opinion

OPINION

VAIDIK, Judge.

Case Summary

Julie C. ("Mother") and Andrew C. ("Father") had two children together before divorcing in 2006. The dissolution decree provided that the parties would share joint legal custody of the children with Mother having primary physical custody. In 2008 Father filed a motion to modify physical custody or, in the alternative, parenting *1252 time. Mother filed a response along with a cross-petition for modification of legal custody and child support and a request that the trial court find Father in contempt for failing to pay child support. Mother appeals the trial court's order entered following a hearing. We find that: (1) when modifying custody, the change in cireumstances required by Indiana Code section 31-17-2-21 need not be so decisive in nature as to make a change in custody necessary for the welfare of the child and (2) when determining whether to modify joint legal custody, a trial court must consider whether there has been a substantial change in one or more of the factors listed in Indiana Code section 31-17-2-15 as well as Indiana Code section 31-17-2-8. Further finding that the trial court here did not abuse its discretion by making a de facto modification to joint physical custody, declining to modify joint legal custody to sole legal custody in Mother, declining to find Father in contempt for failing to pay child support, calculating Father's child support obligation, and declining to award partial or full attorney's fees to Mother, we affirm.

Facts and Procedural History

The evidence most favorable to the trial court's judgment reveals that Mother and Father married in 1995 and have two children together: J.C., born August 21, 2002, and C.C., born October 15, 2004. When Mother and Father later divorced in 2006, the dissolution decree, agreed to by the parties, provided that they would share joint legal custody of J.C. and C.C. with Mother having primary physical custody. The decree further provided that Father would exercise parenting time every Monday, Wednesday, and Friday from 4:30 p.m. to 7:15 p.m. and every other weekend. It also provided: "Onee [C.C.] turns the age of three (8), the parties agree to parenting time for the Father of one night a week and every other weekend with the children pursuant to the Indiana Parenting Time Guidelines." Appellant's App. p. 15. When C.C. turned three, Mother and Father did not change Father's parenting time because of Mother's work schedule and because Father did not want a span of six days at a time when he would not see J.C. and C.C.

In September 2008 Father filed a Verified Motion for Modification of Physical Custody or in the Alternative for Modification of Parenting Time, which requested increasing the amount of time he was permitted to spend with J.C. and C.C. Specifically, Father proposed having J.C. and C.C. each Monday through Wednesday morning and every other weekend, including Sunday nights. Mother then filed a response, a Cross-Petition for Modification of Legal 1 Custody and Child Support, and a Verified Affidavit for Contempt for Father's failure to pay child support. In October 2008, when C.C. was just shy of her fourth birthday, Mother sent Father an email informing him that he was to begin exercising his parenting time one night a week and every other weekend, with the exeeption of the children attending church with Mother on Sunday mornings. Tr. p. 80-31.

Upon request of the trial court, Domestic Relations Counseling Bureau ("DRCB") evaluator Robin Leffler-Pannell prepared a report. Regarding J.C.'s and C.C.'s interaction and interrelationship with Father's fiancée Nicole W., the DRCB report states, "(Father) opined the children both love [Nicole] and engage in activities and are affectionate with her." Appellant's *1253 App. p. 47. It further states, "[J.C.] described [Nicole] as 'nice, but complained that her son ... is 'a bully to me,' and described [Nicole's daughter] as 'nice" [J.C.] said his father and [Nicole] talk to [Nicole's son] and put him in time-out." Id. at 46. Regarding J.C.'s wishes, the report states, "[J.C.] expressed a desire to spend more time with his father because, 'I am always with [MJjom.'" Id. The DRCB report recommended that Mother and Father continue to share joint legal custody and that the children continue to reside in Mother's primary care. The DRCB report also recommended that Father have greater parenting time than that stipulated by the Indiana Parenting Time Guidelines.

Nicole has joint physical custody of her two children. She has them each Monday through Wednesday morning and every other weekend. At the hearing, Nicole testified, "I think it's going to be really important for us to have all four of our kids together so they can actually bond together more and be more of a family." Tr. p. 23. Father testified, "The very most important thing is that I would like to have fifty percent of the time with my kids and with this building of a family I think they should be part of that so they don't have to feel like outsiders to the family." Id. at 40. DRCB evaluator Lef-fler-Pannell was asked, "Is it beneficial in a blended family, as a general proposition, for the children to have the same nights together? ... [WJould it make sense for [Father]'s children to be with them on ... Monday and Tuesday so they can spend time with their step-siblings?" Id. at 7. She responded that it depends on "the children's adjustment to everything," id., that J.C. and C.C. appeared to be well-adjusted, and that "it's generally fine to help the kids get adjusted to the blended family by having them spend time together," id. at 8.

Nicole was asked how the four children interacted with each other:

Q And have there been any, what you would consider problems in integrating these two families?
A With [my daughter] and [C.C.], they get along very well. [C.C.] is very enamored with [my daughter] and [my daughter] really thinks that's pretty great herself. So they do well together.
Q [Your daughter] is nine and [C.C.] is what, four?
A Four. So there's no competition there.
Q Okay.
A With [J.C.] and [my son], they're eight or nine months apart, so they are the same age and, um, they're boys, so there definitely, sometimes there's sharing issues and a little bit of competition over [Father]'s attention and over my attention and that has gone back and forth over the last several months. So, there are times when they get along really well and play really great together and there are times when they don't.
Q What do you do to help them when they're having a problem?
A Well, we both have talked to each of the kids individually as well as together, all four of us. Our consistent message with them is that they don't have to be best friends, they don't have to play together all the time; we don't expect that out of them. But when they want to play together and they want to have fun together, they do so. And if one of them wants to do something on their own then the other one needs to respect that. And since we've had those conversations it's gotten a lot better.

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Cite This Page — Counsel Stack

Bluebook (online)
924 N.E.2d 1249, 2010 Ind. App. LEXIS 517, 2010 WL 1222741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-julie-c-v-andrew-c-indctapp-2010.