Matthew Purnell v. Kayla Purnell

• Court: Indiana Court of Appeals
• Decided: July 11, 2019
• Docket: 19A-JP-162
• Status: Published

Opinion

FILED Jul 11 2019, 8:41 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Dylan A. Vigh Amanda R. Blystone Indianapolis, Indiana Austin T. Robbins Broyles Kight & Ricafort, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Matthew Purnell, July 11, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-JP-162 v. Appeal from the Johnson Circuit Court Kayla Purnell, The Honorable K. Mark Loyd, Appellee-Petitioner. Judge The Honorable Andrew Roesener, Magistrate Trial Court Cause No. 41C01-1702-JP-21

Riley, Judge.

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 1 of 15 STATEMENT OF THE CASE [1] Appellant-Respondent, Matthew Purnell (Father), appeals the trial court’s

Order, awarding Appellee-Petitioner, Kayla Purnell (Mother), sole legal

custody and primary physical custody of their minor child, S.P. (Child).

[2] We affirm.

ISSUE [3] Father presents one issue on appeal, which we restate as: Whether the trial

court abused its discretion by considering Father’s active-duty status in the

United States Air Force when it awarded sole legal and primary physical

custody to Mother.

FACTS AND PROCEDURAL HISTORY [4] Father and Mother married on December 15, 2014. At the time, Father was an

active member of the United States Air Force stationed in California. After the

wedding, in February 2015, Mother relocated from Indiana to California and

the couple resided in an on-base residence. Approximately fourteen months

later, in April 2016, Mother moved back to Indiana to live with her mother

(Grandmother) due to purported allegations of Father’s infidelity. When she

left California, Mother was pregnant and, approximately two weeks after

returning to Indiana, the Child was born on April 20, 2016. There is no dispute

that Father is the legal and biological father of the Child.

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 2 of 15 [5] Mother has been the primary caregiver for the Child since his birth and has

effectuated parenting time opportunities for Father when Father is in Indiana.

Six weeks after his birth, Father visited the Child for the first time. In June of

2016, Father travelled to Indiana with the intent to remove the Child from

Mother’s care and to return with him to California. On his way to Indiana,

Father stopped at the home of his father and stepmother in New Mexico to

spend the night. During this visit, Father informed them of his plan to take the

Child as he did not believe Mother was fit to be the Child’s primary caretaker.

Father’s stepmother contacted Grandmother and informed her of Father’s

plans. Mother was able to successfully thwart Father’s plan while still allowing

him parenting time when he was in Indiana. Father returned to California

without the Child.

[6] Mother has been treated for mental health issues since she was approximately

eleven years old. When she was thirteen years old, Mother spent three weeks in

inpatient hospital care for suicidal tendencies. Another suicide attempt at age

fifteen was followed by a month of inpatient care. Mother has been diagnosed

with bipolar disorder Type I, anxiety disorder not otherwise specified, and

ADHD. Bipolar disorder Type I is characterized by “periods where [Mother’s]

mood can be manic and then periods where [her] mood can be depressed.”

(Transcript p. 11). Every two to three months, Mother has an appointment

with Susan Fay, an advanced nurse practitioner and clinical specialist (Nurse

Fay), who works with Mother on medical management and assisted her to

overcome postpartum depression after the birth of the Child. Overall, Mother

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 3 of 15 is compliant with the proposed course of treatment and Nurse Fay has no

concerns that Mother can appropriately care for the Child.

[7] In addition to Nurse Fay, Mother is under the care of Diane Burks (Burks), a

licensed clinical social worker, who has been working with Mother since she

was eleven years old. Burks has seen positive changes in Mother since the start

of the treatment plan. Mother is “more rational, much more grounded, [with]

fewer manic episodes.” (Tr. p. 45). When Mother gets manic, “she talks real

fast. She gets judgmental, she gets more opinionated. She’ll get stuck on

something and be on a tangent, and she’ll be on a roll about it, and it’s hard to

stop her.” (Tr. p. 48). Mother is “secure in her job, she has plans for the future,

she’s dealing with college.” (Tr. p. 60). “[S]he’s got it all together and knows

where she’s going and how to manage that.” (Tr. p. 60). In the six months

prior to the hearing, Mother has become “much more confident with herself,

much more closely bonded with [Child], clearly attached. [Child] is very

comfortable with Mother and [G]randmother and goes between them back and

forth easily.” (Tr. p. 60). Because Mother brings Child to the appointments

with Burks, Burks had an opportunity to chart his evolution. She noticed that

Child “regressed” in walking skills after a long visit with Father when he was

about one year old. (Tr. p. 55).

[8] Mother maintains fulltime employment as a security guard and is enrolled in

college courses part-time at Ivy Tech. She and the Child reside with

Grandmother, who aids Mother in her care for the Child. Mother is aware that

“she has her mom to step in and help out and support her when she’s not doing

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 4 of 15 as well” and Grandmother remains a stabilizing and supportive presence in

Mother’s life. (Tr. pp. 23-24).

[9] During the proceedings, Father re-enlisted in the Air Force and was re-assigned

to the Cavalier Air Force base in North Dakota where he is the Crew Chief for

the missile warning radar and spacecraft surveillance. Father has no immediate

plans to return to civilian life or Indiana. He lives on-base with his girlfriend

and their eleven-month-old child.

[10] On August 29, 2016, Father filed for a dissolution of marriage in the Superior

Court of Santa Barbara in California (Superior Court). After conducting a

hearing on Father’s petition, the Superior Court ruled that it “has no

jurisdiction to make an initial custody order in this case. The [C]hild’s home

state of Indiana has jurisdiction to make the initial custody orders.”

(Appellant’s App. Conf. Vol. II, p. 48). The Superior Court retained

jurisdiction over all other issues. On February 9, 2017, based on the Superior

Court’s order, Mother filed her verified petition to establish custody, parenting

time, and child support with the trial court in Indiana. One week later, Father

submitted his verified petition for transfer of child custody jurisdiction and for

custody determination. On April 13, 2017, the trial court conducted a hearing

on Father’s petition, which it subsequently denied. The trial court granted

Mother temporary custody of the Child. On March 2, 2018 and November 2,

2018, a final hearing was conducted on the parties’ competing custody requests.

On December 27, 2018, the trial court issued its Findings of Fact and

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 5 of 15 Conclusions thereon, awarding sole legal custody and primary physical custody

of the Child to Mother and concluding, in pertinent part:

15. Two (2) predominant issues have emerged from this litigation and have great bearing [on] the critical decisions of custody and parenting time.

16. Those issues are as follows: a. The mental and emotional fitness and stability of both Mother and Father; and b. The significant geographical distance between Mother and Father.

17. Adding another wrinkle of complexity to this matter is the anticipated transient nature of Father’s future employment with the Air Force.

****

31. The [c]ourt’s decision today as it relates to physical custody of the minor [C]hild is predicated in large part on the ongoing presence of [G]randmother, [Burks], and [Nurse Fay] in the life of Mother.

32. It is impossible to know with absolute certainty what the future holds, but Mother should be mindful that the [c]ourt’s decision today may have been different if Mother was not residing with [G]randmother and not fully engaged in therapy and medication management.

33. Future decisions by Mother resulting in changes to these important factors may be a basis to re-evaluate custody and parenting time decisions.

34. Father, for his part, offers the minor [C]hild the benefit of a parent with a stable career; a single family home; and a more traditional family unit.

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 6 of 15 36. Father, however, presents countervailing concerns to the [c]ourt.

37. Chief among those concerns is Father’s plan to abduct the minor [C]hild from Mother.

38. It must be noted that this plan was not just something that Father privately contemplated and never acted upon.

39. The opposite is true.

40. Father took actual steps toward the completion of his plan, including traveling to Indiana to abduct the [C]hild.

41. It is unclear whether, ultimately, Father abandoned his plan or if it was thwarted by [G]randmother, but, regardless, the instinct to carry out the plan is of grave concern to the [c]ourt.

42. The inclination of Father to attempt to execute this scheme suggests to the [c]ourt that Father is afflicted with his own mental instability.

43. While, to some degree, it is understandable that Father’s judgment was impaired during this difficult time for him, the decision to “fix” the problem through a poorly conceived interstate child abduction scheme demonstrates an appalling lack of judgment and impaired clarity of thought.

44. Adding to the concern are the statements of [Father’s father] and [Father’s stepmother] who both stated that Father is incapable of caring for a young child.

45. To place the minor [C]hild with Father with knowledge of the aforementioned facts cuts against the best interest of the [C]hild.

46. In addition, placing the minor [C]hild with Father will all but ensure that the minor [C]hild’s relationship with Mother and [G]randmother is irreversibly compromised.

47. Placing the minor [C]hild in Father’s custody will not only create a significant geographical distance between Mother and

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 7 of 15 the minor [C]hild, but it will also ascribe to the minor [C]hild the real potential for an itinerant life dictated by Father’s changing military assignments.

(Appellant’s Conf. App. Vol. II, pp. 31-34).

[11] Father now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION [12] Father contends that the trial court abused its discretion by awarding sole legal

custody and primary physical custody of the Child to Mother. In an initial

custody determination, both parents are presumed equally entitled to custody,

and the “[t]he court shall determine custody and enter a custody order in

accordance with the best interest of the child.” Ind. Code § 31-17-2-8. There is

no presumption favoring either parent. I.C. § 31-17-2-8. In determining the

child’s best interest, the trial court must consider all relevant factors, including

specifically the following:

(1) the age and sex of the child. (2) The wishes of the child’s parent or parents. (3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A)The child’s parent or parents; (B) The child’s siblings; and (C) Any other person who may significantly affect the child’s best interests. (5) The child’s adjustment to the child’s (A)Home; (B) School; and (C) Community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 8 of 15 (8) Evidence that the child has been cared for by a de facto custodian.

I.C. § 31-17-2-8. The trial court’s decisions on child custody are reviewed only

for an abuse of discretion. Sabo v. Sabo, 858 N.E.2d 1064, 1068 (Ind. Ct. App.

2006).

[13] There is a well-established preference in Indiana “‘for granting latitude and

deference to our trial judges in family law matters.’” Steele-Giri v. Steele, 51

N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622 N.E.2d

178, 178 (Ind. 1993)). In this regard, our supreme court has explained that:

Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face- to-face, often over an extended period of time. Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). It is not enough on appeal that the

evidence might support some other conclusion; rather, the evidence must

positively require the result sought by the appellant. D.C. v. J.A.C., 977 N.E.2d

951, 957 (Ind. 2012). Accordingly, we will not substitute our own judgment if

any evidence or legitimate inferences support the trial court’s judgment. Id.

[14] At Mother’s request, the trial court included specific findings of fact and

conclusions thereon pursuant to Indiana Trial Rule 52. When a trial court

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 9 of 15 enters findings of fact and conclusions of law pursuant to Indiana Trial Rule 52,

we apply the following two-tiered standard of review: whether the evidence

supports the findings and whether the findings support the judgment. Tompa v.

Tompa, 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). The trial court’s findings

and conclusions will be set aside only if they are clearly erroneous, that is, if the

record contains no facts or inferences supporting them. Id. A judgment is

clearly erroneous when a review of the record leaves us with a firm conviction

that a mistake has been made. Id. We neither reweigh the evidence or assess

the credibility of the witnesses, but consider only the evidence most favorable to

the judgment. Id. We review conclusions of law de novo. Id.

[15] In the present case, the trial court granted initial sole legal and primary physical

custody of the Child to Mother. In making this custody determination, the trial

court relied on several of the statutory factors listed in I.C. § 31-17-2-8, with its

Order comprising of ninety-five findings of fact and forty-seven conclusions of

law. On appeal, Father concedes that the trial court’s findings are supported by

the evidence; rather, his sole contention revolves around the trial court’s

consideration of his active-duty status in the United States Air Force. 1

1 Mother contends that Father waived his argument because he never raised the application of Indiana Code section 31-17-2-21.3 before the trial court. However, we have long held that “[w]hile failure to cite the controlling statute cannot be said to be sound trial practice, it does not constitute waiver of a contention within the factual framework of the litigation[.]” Danes v. Automobile Underwriters, Inc., 307 N.E.2d 902, 905- 06 (Ind. Ct. App. 1974). Father’s active duty status was evident and was repeatedly acknowledged by the trial court. Accordingly, Father did not waive his argument on appeal. See, e.g., In re the Adoption of S.O., 56 N.E.3d 77, 82 (Ind. Ct. App. 2016) (a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court).

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 10 of 15 Specifically, Father asserts that the trial court violated Indiana Code section 31-

17-2-21.3(a) by relying on “Father’s active-duty service, and the future

assignments it contemplated, as a determining factor in awarding custody to

Mother.” (Appellant’s Br. p. 17). Indiana Code section 31-17-2-21.3 provides

that

(a) A court may not consider a parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order.

(b) If a court temporarily modifies a custody order due to a parent’s active duty service, the order temporarily modifying the custody order terminates automatically not later than ten (10) days after the date the parent notifies the temporary custodian in writing that the parent has returned from active duty service. This subsection does not prevent a court from modifying a child custody order as provided under this article after a parent returns from active duty service.

“Active duty” is defined as full-time service in the armed forces of the United

States or the National Guard for a period that exceeds thirty consecutive days

in a calendar year. I.C. § 31-9-2-0.8.

[16] In re C.S., 964 N.E.2d 879, 881 (Ind. Ct. App. 2012), trans. denied, a mother

chose to reactivate her active duty service by taking a job as a career counselor,

apparently indefinitely, in Kentucky because it provided better pay and benefits

than the private sector. We held that because the mother testified that she

would remain in Kentucky for “some time to come,” her location would only

be changed upon her request, and she could not be deployed to a combat zone,

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 11 of 15 the mother’s service did not demonstrate the impermanency contemplated by

the statute. Id. at 885. However, In re C.S. was decided in the context of a

custody modification with the ‘impermanency’ language alluding to the return

of the parent from active duty service as contemplated by the application of

section (b) of the statute. In the most current pronouncement Hazelett v.

Hazelett, 119 N.E.3d 153 (Ind. Ct. App. 2019), we reversed the trial court’s

initial custody determination in favor of mother, as it appeared “that the trial

court did, in fact, consider [f]ather’s absence due to his military service as a

factor in awarding [m]other sole legal custody” in violation of section (a) of the

statute. Id. at 161. Accordingly, “in light of the trial court’s insufficient

findings and the fact that the court apparently considered [f]ather’s active duty

service in its initial custody determination,” we remanded for a new custody

determination. Id.

[17] Father testified that he is the Crew Chief for the missile warning radar and

spacecraft surveillance at the Cavalier Air Force base in North Dakota. Unlike

In re C.S., Father’s reassignments are uncertain and not voluntary. He cannot

choose his location and could be ordered to go where needed. As he is serving

full-time in the armed forces of the United States, he falls within the province of

I.C. § 31-17-2-21.3(a). Although Mother proposes to limit the application of the

statute to an “active duty combatant who has been deployed to another country

for a limited period of time,” no such language is included in section (a) of the

statute, nor are we persuaded to constrain the statute’s interpretation as Mother

suggests.

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 12 of 15 [18] Our review of the trial court’s Order indicates that the trial court considered

Father’s active duty service in its determination of the Child’s initial custody.

Emphasizing the “anticipated transient nature of Father’s future employment

with the Air Force,” the trial court granted Mother custody, as awarding

custody of the Child to Father would result in “an itinerant life dictated by

Father’s changing military assignments.” (Appellant’s App. Conf. Vol. II, p.

34).

[19] Nevertheless, unlike Hazelett, where we remanded in part due to the trial court’s

insufficient findings, in the present case, the trial court entered extensive

findings of fact and conclusions thereon. “[I]t 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 is otherwise

supported by the record.” Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App.

2013). Although the trial court considered Mother’s mental health struggles

and cautioned her to be compliant with her medical providers, the trial court

was impressed by the strides Mother has made since returning to Indiana.

Mother has built an extensive support network and is currently gainfully

employed with a realistic plan for the future. She continues to reside with

Grandmother, and together they “have collaborated to create a safe and loving

home environment for the Child.” (Appellant’s Conf. App. Vol. II, p. 32).

Even when Mother became unstable, she “never displayed physically violent

tendencies, suffered from visual or auditory hallucinations; or abused drugs or

alcohol.” (Appellant’s Conf. App. Vol. II, p. 32).

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 13 of 15 [20] The Child has resided in Indiana for the entirety of his life. He is bonded with

Mother and Grandmother. Father’s first visit took place when the Child was

six weeks old and he has exercised parental time approximately eight to nine

times since the Child’s birth on April 20, 2016. Despite Father’s stable

employment prospects and presence of a traditional family unit, Burks

explained that awarding custody to Father would be “[a]bsolutely [the] worst

thing that could happen to [Child] because it would violate his attachment, his

bond with [Mother] and grandmother. And to take that trust away from him

just wipes out the whole bottom of the security of his development.” (Tr. p.

65). Chief among the trial court’s concerns with respect to Father was Father’s

thwarted plan to abduct his own Child. Referencing the evidence that the plan

was not merely privately contemplated, the trial court viewed the “poorly

conceived interstate child abduction scheme” as a demonstration of “an

appalling lack of judgment and impaired clarity of thought.” (Appellant’s Conf.

App. Vol. II, p. 34).

[21] Mindful of our deference to the trial court in custody cases and without

acknowledging the trial court’s conclusions with respect to Father’s active duty

status, we find that, in light of the totality of the remaining trial court’s findings

and conclusions, sufficient evidence exists to support the trial court’s grant of

sole legal custody and primary physical custody of the Child to Mother.

CONCLUSIONS [22] Based on the foregoing, we hold that although the trial court abused its

discretion in considering Father’s active duty status in the United States Air Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 14 of 15 Force, the remaining findings of fact and conclusions thereon are sufficient to

support the grant of sole legal custody and primary physical custody of the

Child to Mother.

[23] Affirmed.

[24] Bailey, J. and Pyle, J. concur

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019 Page 15 of 15