Michelle Powell v. Timothy Powell (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 22, 2016
• Docket: 32A05-1603-DR-674
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 22 2016, 8:28 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Cynthia P. Helfrich Robert J. Arnold Helfrich & Harrell, LLC Shelbyville, Indiana Avon, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michelle Powell, November 22, 2016 Appellant-Petitioner, Court of Appeals Case No. 32A05-1603-DR-674 v. Appeal from the Hendricks Superior Court Timothy Powell, The Honorable Rhett M. Stuard, Appellee-Respondent. Judge Trial Court Cause No. 32D02-1508-DR-554

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 1 of 15 STATEMENT OF THE CASE

[1] Appellant-Petitioner, Michelle Powell (Mother), appeals the trial court’s Order,

which modified custody and parenting time with the minor child, P.P. (Child),

and denied Appellee-Respondent’s, Timothy Powell (Father), petition for

contempt.

[2] We affirm.

ISSUES

[3] Mother raises three issues on appeal, which we consolidate and restate as

follows:

(1) Whether the trial court deprived Mother of due process during the

hearing; and

(2) Whether Father established a substantial change in circumstances

warranting the modification of physical custody and parenting time of

the Child.

FACTS AND PROCEDURAL HISTORY

[4] Mother and Father were married but separated in 2010, with the dissolution of

marriage decree entered on September 27, 2010. During the parties’ marriage,

one Child was born on April 19, 2006. Father remarried in 2012 to Dawn

Powell (Step-Mother). Step-Mother has one child from a prior relationship,

Step-Sister, who lives with Father and Step-Mother. On August 13, 2012,

Father and Mother entered into a mediated agreement on custody and

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 2 of 15 parenting time, pursuant to which the parties shared legal custody with Mother

having primary physical custody and Father receiving parenting time. In

practice, the parties established a split parenting time schedule, which allowed

the Child to spend equal time with both parents, resulting in a de facto joint

physical custody. Specifically, P.P. would be with Father on Tuesdays and

Thursdays after school and overnight until the following morning and with

Mother on Mondays and Wednesdays after school and overnight. The Child

would alternate Friday and Saturday overnights with her parents, but would

always be back at Mother’s home by 6:00 p.m. on Sunday and spend every

Sunday overnight at Mother’s residence. The parties would alternate weeks

during summer break and would follow the Indiana ParentalTime Guidelines

for all other holidays and school breaks.

[5] On April 22, 2015, Father was fired from his job and was unemployed until

August 3, 2015, when he accepted a new position, in which he earned

considerably less. Although Father was unemployed during summer break,

Mother was reluctant to allow Father extra parenting time, instead preferring

that the Child spend time with Mother’s father or in summer camps.

[6] Communication between Mother and Father has become difficult. Messages

between the parents, including Step-Mother, are not responded to or are

responded to very late. This has resulted in missed opportunities for the Child.

While the mediated agreement set Mother a deadline of May 1 to give Father

notice of her requested weeks of summer parenting time, in 2015, Mother

waited until 10:00 p.m. on May 1 to provide Father with this information.

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 3 of 15 [7] The Child has traditionally been involved in several extracurricular activities,

including Irish Dance, basketball, softball, girl scouts, piano, violin, and dance.

Some of these activities took place exclusively during Mother’s parenting time,

while others occurred during both Mother’s and Father’s parenting time. The

Child is a good student and made last school year’s Honor Roll. She does not

display any emotional or behavioral issues.

[8] On May 22, 2015, Father filed a verified petition for modification of decree,

modification of child support, contempt, and for attorney fees. Mother moved

for a change of judge and filed a motion to strike Father’s petition for contempt

citation because it failed to comply with the requirements of Indiana Code

section 34-47-3-5. The trial court granted both of Mother’s motions and struck

Father’s contempt petition. On August 28, 2015, Father’s verified petition for

modification of decree and modification of child support were unsuccessfully

submitted to mediation. On October 2, 2015, Mother filed a verified motion for

contempt. The trial court set all pending motions for a hearing on January 8,

2016, and allotted two hours of time. On December 14, 2015, Mother filed a

verified motion to modify parenting time, which the trial court added to the

hearing date without scheduling extra time. On December 31, 2015, Father

filed an amended verified petition for modification of decree, contempt, and

attorney fees, which the trial court set for hearing at the same time as all other

motions on January 8, 2016. No additional time was allotted.

[9] At the onset of the hearing on January 8, 2016, Mother objected to the trial

court hearing Father’s motion filed on December 31, 2015 due to lack of notice,

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 4 of 15 lack of opportunity to obtain discovery, and insufficiency of time allotted in

light of the number of issues already scheduled. The trial court overruled

Mother’s objection and subsequently denied her request for continuance.

Ultimately, the trial court allowed the parties an additional thirty minutes of

time for the presentation of issues.

[10] On February 2, 2016, the trial court issued its Order, entering special findings of

fact and conclusions thereon, finding, in pertinent part:

3. There has been a substantial and continuing change in circumstances of the parties and the minor child, so substantial and so continuing as to make the current Decree unreasonable, and requiring modification of the Decree, including and not limited to [F]ather losing his job and now making $20,000 less than previously, the continued disagreement of the parties regarding scheduling, and the continued effect all of this is having on the physical and mental health of the child.

****

5. Certain disputes have arisen, which have brought into focus several areas which need to change for the benefit of [the Child]. Further, the [c]ourt finds that both parties have placed their own selfish desires, particularly the desire to have everything their way, above the best interests of [the Child]. Therefore, the [c]ourt has no choice but to alter the way the parties deal with each other and their daughter.

6. It has become problematic for [the Child] to spend every other night during the week at a different parent’s household. The transfers have caused problems with transportation and scheduling, as well as activities and planning. Spending every

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 5 of 15 other night with a different parent during the week has become contrary to [the Child’s] best interest.

7. The parents generally remain committed to joint legal and physical custody of [the Child]. For purposes of holiday visitation ONLY, Mother shall be considered the custodial parent.

8 It is in the best interest of [the Child] [] to be with one parent for one week, and the other parent the next week. Therefore, effective as of 6:00 p.m. the first Sunday after this order is issued, regardless of the current parenting time schedule, Mother shall have [the Child] for one week. At 6:00 p.m. the following week, Father shall pickup [the Child] and have [the Child] for one week and so on. Each party will pick up [the Child] at the start of their scheduled parenting time.

9. This schedule shall continue throughout the summer except that each party shall have at least 2 uninterrupted weeks with [the Child] during her summer vacation. Father shall notify Mother, no later than 10:00 p.m. on April 1st of each year when he intends to exercise his 2 week uninterrupted time with [the Child]. After Father has made his selection, Mother shall notify Father no later than 10:00 p.m. on May 1st of each year when she intends to exercise her uninterrupted 2 weeks with [the Child].

16. It is in the best interest of the parties and the [C]hild that her parents agree as to each activity [the Child] is enrolled in. Moreover, it is not in [the Child’s] best interest, at the age of 9, to be overscheduled. As such, each parent, after consultation with the other, may enroll [the Child] in one extracurricular activity at a time outside of school and shall bear the costs of the same. If both parties do not agree on an extracurricular activity, then [the

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 6 of 15 Child] will not participate in that activity. The parents are to consult with each other and confer as to the best interest of [the Child] so that the activity they choose will not unreasonably interfere with the activity chosen by the other. Once the extracurricular [activity] chosen by a party ends, that party may enroll [the Child] in another activity. Each party will be responsible for transporting [the Child] to any extracurricular [activity] that falls during their parenting time, regardless of which party selected it. Any activities [the Child] is currently enrolled in, she may finish but neither party shall enroll [the Child] in any additional activities without first consulting with the other party under the guidelines set out above.

20. Because the [c]ourt finds that Father tried to comply with the [c]ourt’s orders, in spite of being unemployed, and because the [c]ourt finds that Mother did not willfully and intentionally violate this [c]ourt’s previous orders, neither party is held in contempt for any reason.

21. Mother shall allow [Step-Mother] to pick up [the Child] when Father is out of town, on business for his scheduled parenting time. It is in the best interest of [the Child] for [Step- Mother] to be allowed to pick up and drop off [the Child] if Father is temporarily not able to do so due to work obligations.

(Appellant’s App. pp. 85-90).

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 7 of 15 [11] On March 2, 2016, Mother filed a motion to correct error. Five days later, on

March 7, 2016, the trial court issued its ruling on the motion to correct error,

clarifying, in pertinent part, that:

Finding number 21 in the [c]ourt’s order allows [Step-Mother] to pick up [the Child] if Father is unable to do so for his parenting time. If Father is out of town on business for two or more consecutive nights at any time during [the child’s] visitation with Father, [the Child] shall stay with Mother while Father is gone. When Father returns home, if there is visitation time remaining during Father’s week with [the Child], [the Child] shall return to Father’s care until Mother’s visitation commences again.

(Appellant’s App. p. 111).

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

DISCUSSION AND DECISION

I. Due Process

[13] Although the trial court ruled in her favor, Mother disputes the trial court’s

underlying proceedings in the contempt issue, arguing that she was denied due

process because the trial court rejected her motion to continue and failed to

issue a rule to show cause with respect to Father’s contempt petition. Mother

does not allege that the contempt issue itself was decided erroneously.

[14] An appeal or issue can become moot in various ways: (1) when it is no longer

‘live’ or when the parties lack a legally cognizable interest in the outcome; (2)

when the principal questions in issue have ceased to be matters of real

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 8 of 15 controversy between the parties; or (3) when the court on appeal is unable to

render effective relief upon an issue. Comm’r of Ind. Bureau of Motor Vehicles v.

Vawter, 45 N.E.3d 1200, 1209 (Ind. 2015). Because Mother does not challenge

the trial court’s conclusion on Father’s contempt petition, which was the

principal question in issue, any possible errors in the underlying proceedings

have become moot. Accordingly, we do “not retain jurisdiction to decide . . .

questions incidentally or indirectly involved in the appeal.” Modlin v. Bd. of

Com’rs of Grant Co., 103 N.E. 506, 508 (Ind. Ct. App. 1913).

[15] Moreover, even if we were to decide Mother’s issues on the merits, we would

reach the same result as the trial court. First, it is generally admitted that “if no

rule to show cause is issued in compliance with [the] statutes, a court may lack

the authority to hold a person in contempt.” Stanke v. Swickard, 43 N.E.3d 245,

248 (Ind. Ct. App. 2015). Nevertheless, “[s]trict compliance with the rule to

show cause may be excused if it is clear the alleged contemnor had clear notice

of the accusations against him, for example because he received a copy of an

original contempt information that contained detailed factual allegations, or if

he appears at the contempt hearing and admits to the factual basis for a

contempt finding.” Id. Our review of Father’s petition reveals that the petition

is very detailed in its description of Mother’s alleged instances of contempt. For

instance, Father refers to Mother’s inability to timely communicate about her

intentions of keeping the Child in Irish dance and her refusal to communicate

with Step-Mother about specific matters relating to the Child. Accordingly,

Mother was on notice with respect to the factual allegations lodged against her.

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 9 of 15 [16] Mother also contested the trial court’s denial of her motion to continue Father’s

contempt petition to a later hearing because she feared not to have sufficient

time at the hearing to present all the issues and wanted to conduct extensive

discovery. The decision to grant or deny a motion for continuance is within the

sound discretion of the trial court. F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind.

Ct. App. 2012). We will reverse the trial court only for an abuse of that

discretion. Id. No abuse of discretion will be found when the moving party has

not shown that he was prejudiced by the denial. Id.

[17] At the hearing on January 8, 2016, the trial court heard evidence on the

following four motions: Father’s verified petition for modification of decree,

modification of child support, and for attorney fees; Father’s amended verified

petition for modification of decree, modification of child support, and for

attorney fees; Mother’s verified motion for rule to show cause and request for

emergency order on health insurance; and Mother’s verified motion for

modification of parenting time. Although the trial court had initially allotted

two hours to receive evidence, ultimately, the trial court extended the time to

present evidence with an extra thirty minutes. Our review of the record reveals

that the brunt of this time was used by Mother’s counsel to cross-examine

Father. We also recognize that during the parties’ presentation of their issues,

they did not focus on one single issue before continuing onto another topic but

rather introduced a mix of issues, covering the four different motions. This is

reflected in the trial court’s resulting Order: rather than subdividing its Order

into the different issues, the trial court issued findings of fact and conclusions

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 10 of 15 thereon in one general Order related to all issues. In other words, because the

issues of contempt, custody, and parenting time are interconnected and

evidence related to one issue can also be used to establish the existence or

absence of another issue, the trial court granted sufficient time to the parties to

complete their presentation of the evidence. Moreover, the trial court’s denial

of Father’s contempt petition is a satisfactory indication that Mother was not

prejudiced by the denial of her motion for continuance. We affirm the trial

court’s denial of Father’s contempt petition.

II. Modification of Custody

A. Standard of Review

[18] We review a custody modification for an abuse of discretion with a “preference

for granting latitude and deference to our trial judges in family law matters.” In

re Paternity of T.P., 920 N.E.2d 726, 730 (Ind. Ct. App. 2010) (quoting In re

Paternity of K.I., 903 N.E.2d 453, 457 (Ind. 2009)), trans. denied. We understand

that appellate courts “are in a poor position to look at a cold transcript of the

record, and conclude that the trial judge . . . did not properly understand the

significance of the evidence, or that he should have found its preponderance or

the inference therefrom to be different from what he did.” Kirk v. Kirk, 770

N.E.2d 304, 307 (Ind. 2002) (citation omitted). Accordingly, “[o]n appeal it is

not enough 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. Thus, “[t]he burden of demonstrating that an existing

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 11 of 15 custody arrangement should be modified rests with the party seeking the

modification.” In re Paternity of A.S., 948 N.E.2d 380, 386 (Ind. Ct. App. 2011).

This court will neither reweigh the evidence nor assess witness credibility, and

we will consider only the evidence that directly or by inference supports the trial

court’s judgment. Parks v. Grube, 934 N.E.2d 111, 114 (Ind. Ct. App. 2010).

B. Modification

[19] Mother contends that the trial court abused its discretion in modifying the

custody and parenting time schedule by granting each party a week on/week off

parenting time with the Child.

[20] Indiana Code section 31-17-2-21 provides that a trial court may not modify a

child custody order unless (1) the modification is in the best interests of the

child and (2) there is a substantial change in one or more of the factors that the

court may consider under Indiana Code section 31-17-2-8. These factors

include:

(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;

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 12 of 15 (B) the child’s sibling; 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.

(8) Evidence that the child has been cared for by a de facto custodian . . . .

[21] Based on the evidence presented, Mother does not contest specific findings, but

instead generally argues that Father failed to establish a change in

circumstances sufficient to support a modification in custody and parenting

time. When interpreting the custody modification statute, our court explained

that the statute does not require the trial court to specify which factor or factors

have substantially changed. Kanach v. Rogers, 742 N.E.2d 987, 989 (Ind. Ct.

App. 2001). Instead, the trial court “must ‘consider’ the statutory factors and

find there has been a substantial change.” Id.

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 13 of 15 [22] To find a substantial change in circumstances, the trial court focused on

Father’s changed employment situation, the continuing disagreement between

Mother and Father in scheduling the Child’s extracurricular activities, their

worsening communication skills, and the Child’s age.

[23] The record supports that Father testified that the current parenting schedule was

confusing to the Child with going back and forth between each residence daily.

He noted that summer visitation, when each parent had the Child for a full

week at a time, was more manageable for the Child. Although Mother stated

that the current schedule is workable, the trial court was entitled to give more

weight to Father’s testimony. Moreover, the current schedule caused problems

with transportation and scheduling, as well as planning the Child’s

extracurricular activities. Evidence submitted at trial indicates that at times

even the parents were confused as to who should pick up the Child, where

rescheduled sporting events had moved to, or who should sell girl scout

cookies. Furthermore, Father has been denied parenting time with the Child

while he was unemployed and available with Mother preferring to enroll the

Child in summer camp or to have the Child spend time with her maternal

grandfather.

[24] The evidence further establishes that over the years, communication between

Mother and Father has broken down. At the moment, daily communication

has become difficult, with the Parties not responding or responding late which

resulted in missed games and vacation opportunities for the Child. Mother has

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 14 of 15 also refused to communicate with Step-Mother on mundane matters related to

re-scheduled games or health insurance.

[25] Based on the record, we agree that a significant change has occurred which

warrants a modification of physical custody. Specifically, in light of the Child’s

age and extensive extracurricular interests, a schedule whereby both parents

alternate days parenting the Child is no longer feasible. The increasingly

difficult communication and participation between the parents in parenting the

Child only adds to the justification of Father’s request for modification.

Accordingly, mindful of our deferential review, we affirm the trial court’s order.

CONCLUSION

[26] Based on the foregoing, we conclude that the trial court did not abuse its

discretion by modifying custody and parenting time of the Child.

[27] Affirmed.

[28] Bailey, J. and Barnes, J. concur

Court of Appeals of Indiana | Memorandum Decision 32A05-1603-DR-674 | November 22, 2016 Page 15 of 15