MEMORANDUM DECISION FILED Aug 04 2016, 8:45 am Pursuant to Ind. Appellate Rule 65(D), 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.
APPELLANT PRO SE ATTORNEY FOR APPELLEE Penelope M. Edwards Jennifer A. Joas Lawrenceburg, Indiana Madison, Indiana
IN THE COURT OF APPEALS OF INDIANA
Penelope M. Edwards, August 4, 2016 Appellant-Petitioner, Court of Appeals Case No. 15A05-1510-DR-1692 v. Appeal from the Dearborn Circuit Court Eric M. Edwards, The Honorable James D. Appellee-Respondent. Humphrey, Judge Trial Court Cause No. 15C01-0401-DR-14
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 1 of 18 STATEMENT OF THE CASE
[1] Appellant-Petitioner, Penelope M. Edwards (Mother), appeals the trial court’s
denial of her motion to modify custody and its finding of contempt in favor of
Appellee-Respondent, Eric M. Edwards (Father).
[2] We affirm.
ISSUES
[3] Mother raises four issues, which we restate as follows:
(1) Whether the trial court abused its discretion by finding Mother in
contempt of court;
(2) Whether the trial court lacked impartiality when applying the trial rules;
(3) Whether the trial court erred in its calculation of Mother’s share of
unreimbursed medical expenses; and
(4) Whether the trial court abused its discretion by denying Mother’s motion
to modify custody of the minor children.
FACTS AND PROCEDURAL HISTORY
[4] During the marriage of Mother and Father, two children were born: J.E., on
November 11, 1997, and C.E., on September 9, 2000. A decree of dissolution
of the marriage was entered on May 21, 2004, at which time, the parties agreed
to joint legal custody of the children, with Mother having primary physical
custody. Following a suicide threat by C.E., Father filed for a change of
physical custody. As a result, on March 11, 2013, Father was granted physical
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 2 of 18 custody of J.E. and C.E., with Mother receiving parenting time every other
weekend. On February 3, 2014, the trial court reduced Mother’s parenting time
in accordance with the Indiana Parenting Time Guidelines and ordered C.E. to
“continue in individual counseling and counseling with her Mother until
released from treatment.” (Appellant’s App. p. 35). Both parties had to
“ensure that their children attend school activities and extra-curricular activities
and practices.” (Appellant’s App. p. 35). Father was to provide insurance for
the minor children with all uninsured medical expenses to be paid pursuant to
the six percent rule and Father annually paying the first $1,344.72 of those
expenses.
[5] At the time of the current proceedings, C.E. was fifteen and entered her
freshman year. She is doing well in school and makes consistent grades. To
resolve C.E.’s trust issues with Mother and in compliance with the trial court’s
order, C.E. and Mother participated in joint counseling sessions. However,
these joint sessions were discontinued on November 20, 2013, because Mother
felt she needed to work on herself to resolve the “anger from having [her] kids
taken away from [her].” (Transcript p. 27). C.E. continued individual
counseling with Dr. Anthony Barone (Dr. Barone). In a letter to the Guardian
Ad Litem, Dr. Barone reported:`
[C.E.] has benefitted from the structure [and] stability she has received at her [F]ather’s house. She is comfortable and happy with the current living situation. It would be very important to [C.E.’s] emotional health to continue with this stable environment with her [F]ather as well as the continuation of visits with her [M]other. She does feel that midweek visits are Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 3 of 18 sometimes difficult with her schoolwork and would like that changed. [C.E.] should continue with visits every other weekend to her [M]other, with flexibility on the midweek visits. It is important that regular contact with her [M]other continue.
(Respondent’s Exh. B).
[6] J.E. is entering his senior year in high school. His plan is to enter the Air Force
Academy; he plays a sport in every season, and is involved in various
leadership roles. He is enrolled in advanced classes and excels in his
schoolwork. He is employed on the weekends. J.E. has a driver’s license and is
responsible to drive his sister and himself thirty-four miles to school in Indiana
from their Father’s house in Ohio.
[7] Since the last custodial review, there have been continuing problems with the
midweek parenting schedule. Because of his extra-curricular activities, J.E.
cannot participate on Tuesdays or Thursdays, whereas Mother cannot be
present on Wednesdays because of her volleyball practices. Often, the mid-
week visit has to be rescheduled. There have also been recurring problems with
the children attending extra-curricular activities while in Mother’s care. Mother
did not get J.E. to a swim meet in a timely fashion, Mother failed to take C.E.
to fundraising activities to help fund her mission trip, and instead of taking J.E.
to a varsity track meet, Mother chose to take J.E. to a voluntary boy scout
badge day. Because of all these problems, the children’s Guardian Ad Litem
(GAL) recommended eliminating Mother’s midweek parenting time.
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 4 of 18 [8] On June 25, 2014, Mother filed a motion for modification of physical custody,
child support, parenting time, and uninsured medical expenses, alleging that
there has been a substantial and continuing change in circumstances and that it
would be in the children’s best interest for Mother to become their primary
physical custodian. In response, Father filed a motion for modification of
parenting time, requesting to eliminate the midweek parenting time, as well as a
motion for rule to show cause. On February 10, 2015, the trial court conducted
a status hearing, at which it ordered the parties to mediation, compelled all
discovery, and set a hearing on all pending motions. On May 19, 2015, the trial
court conducted a hearing on the parties’ motions. On June 22, 2015, the trial
court issued its Order denying Mother’s motion for modification of physical
custody, child support, parenting time, and uninsured medical expenses
because “there has not be[en] a substantial and continuing change in
circumstances[.]” (Appellant’s App. p. 21). In the same Order, the trial court
granted Father’s modification of parenting time by ordering that Mother “shall
no longer receive a midweek parenting time with her children.” (Appellant’s
App. p. 22). In addition, the trial court concluded as follows:
4. That [Mother] shall be found in contempt of the [c]ourt’s prior order in refusing to reimburse [Father] for the uninsured medical, dental, pharmaceutical, psychological, and optical expenses for the parties’ minor children for calendar year 2013 and 2014 as set forth in the [c]ourt’s Order of February 3, 2014. [Mother] shall be ordered to reimburse [Father] the sum of $2,148.15 for 2013 expenses . . . and $862.83 for expenses . . . [.]
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 5 of 18 5. That [Mother] shall be found in contempt of the [c]ourt’s order dated February 3, 2014 in refusing to continue joint therapy sessions with [the counselor] and her daughter, [C.E.].
6. That [Mother] shall be found in contempt of the [c]ourt’s order dated February 3, 2014 in failing to pay the child support arrearage within the specified 45 days. As of the date of May 18, 2015, [Mother] still owed an arrearage of $210.00. . . [.]
7. That [Mother] shall be found in contempt of the [c]ourt’s order of March 11, 2013, for refusing to pay for [C.E.’s] Confirmation costs in the total sum of $113.88 . . . [.]
8. That [Mother] shall be found in contempt of the [c]ourt’s prior orders for failing to assist the children in attending their scheduled activities during her periods of parenting time.
9. That as a result of [Mother’s] refusal to follow the [c]ourt’s prior orders, [Father] has incurred legal fees in order to bring this matter to the [c]ourt’s attention. [Mother] shall be required to reimburse [Father] the sum of $500.00 towards legal fees . . . [.]
(Appellant’s App. pp. 24-26).
[9] On July 21, 2015, Mother filed a motion to correct error, alleging multiple
errors in the trial court’s Order. On September 16, 2015, after a hearing, the
trial court affirmed its previous Order, with the exception of Mother’s child
support arrearage where the trial court determined Mother to have
“substantially complied with the [c]ourt’s order and she is not held in contempt
of [c]ourt for willful violation of the [c]ourt’s order.” (Appellant’s App. p. 29).
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 6 of 18 [10] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Contempt of Court
[11] Mother contends that the trial court abused its discretion by finding her in
contempt of court where Father’s motion for rule to show cause was unverified.
Contempt of court “involves disobedience of a court which undermines the
court’s authority, justice and dignity.” Henderson v. Henderson, 919 N.E.2d
1207, 1210 (Ind. Ct. App. 2010) (citing Srivastava v. Indianapolis Hebrew
Congregation, Inc. 779 N.E.2d 52, 60 (Ind. Ct. App. 2002), trans. denied). There
are two types of contempt: direct and indirect. Id. Direct contempt involves
actions occurring near the court that interfere with the business of the court and
of which the judge has personal knowledge. Id. Contempt is indirect if it
involves actions outside the trial court’s personal knowledge. Id. “Willful
disobedience of any lawfully entered court order of which the offender had
notice is indirect contempt.” Id (citing Francies v. Francies, 759 N.E.2d 1106,
1118 (Ind. Ct. App. 2001), reh’g denied, trans. denied). The determination of
whether a party is in contempt of court is a matter within the trial court’s
discretion and the trial court’s decision will only be reversed for an abuse of
discretion. Piercey v. Piercey, 727 N.E.2d 26, 31 (Ind. Ct. App. 2000).
[12] Father filed his motion for rule to show cause on September 5, 2014, alleging
that Mother failed to participate in joint therapy with C.E. as ordered, failed to
reimburse Father for uninsured medical expenses as ordered, failed to pay the
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 7 of 18 child support arrearage within the specified time period, and failed to take the
children to their scheduled extracurricular activities. Mother asserts that she
was denied due process because Father’s motion was unverified by an oath of
affirmation and therefore, “[t]he [t]rial [c]ourt did not have jurisdiction to order
a rule.” (Appellant’s Br. p. 25).
[13] An indirect contempt proceeding requires an array of due process protections,
including notice and the opportunity to be heard. In re Contempt of Wabash
Valley Hosp., Inc., 827 N.E.2d 50, 62 (Ind. Ct. App. 2005). These protections
are provided by the court’s compliance with Ind. Code § 34-47-3-5, which
provides:
(a) In all cases of indirect contempt, the person charged with indirect contempt is entitled:
(1) Before answering the charge; or
(2) Being punished for the contempt;
To be served with a rule of the court against which the contempt was alleged to have been committed.
(b) The rule to show cause must:
(1) Clearly and distinctly set forth the facts that are alleged to constitute the contempt;
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 8 of 18 (2) Specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and
(3) Specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.
(c) The court shall, on proper showing, extend the time provided under subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.
(d) A rule provided for under subsection (b) may not issue until the facts alleged to constitute the contempt have been:
(1) Brought to the knowledge of the court by an information; and
(2) Duly verified by the oath of affirmation of some officers of the court or other responsible person.
[14] If no rule to show cause is issued in compliance with this statute, a court may
lack the authority to hold a person in contempt. In re Paternity of J.T.I., 875
N.E.2d 447, 451 (Ind. Ct. App. 2007). Strict compliance with the rule to show
cause statute may be excused if it is clear the alleged contemnor had 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 hearing. Id. at 450-51.
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 9 of 18 [15] Here, Father filed his unverified motion for rule to show cause on September 5,
2014. The motion contains a certificate of service, indicating it was served on
Mother by first class postage mail. Neither the record nor the chronological
case summary (CCS) includes the trial court’s rule to show cause hearing.
Nonetheless, during the hearing on May 19, 2015, both parties affirmed to the
trial court that they came prepared to discuss Father’s motion. Accordingly,
besides the other motions discussed at the hearing, the trial court heard
evidence on Father’s claim to hold Mother in contempt. Father’s motion had
advised Mother in detail of the factual allegations of contempt and Mother had
ample opportunity to present her own evidence and question Father’s evidence,
which she availed herself of at the hearing. At no point did Mother object to
the discussion of Father’s motion on due process grounds. While Father’s
motion is unverified and the trial court did not conduct a separate rule to show
cause hearing regarding the motion, under the circumstances before us, we are
satisfied that Mother’s due process rights were protected. See Lasater v. Lasater,
809 N.E.2d 380, 386 (Ind. Ct. App. 2004) (finding no due process violation
where the trial court did not conduct a separate rule to show cause hearing).
Furthermore, Mother does not claim that she was prejudiced in any way by the
trial court’s evidentiary hearing on Father’s motion without first having the rule
to show cause hearing. Based on the contentious nature of the case and the
numerous filings before it, it was both reasonable and efficient for the trial court
to proceed as it did. See id. We cannot conclude that Mother’s due process
rights were violated.
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 10 of 18 II. Application of the Trial Rules
[16] Next, Mother claims that the trial court’s application of the trial rules showed a
lack of impartiality, in violation of Indiana Judicial Canon 2. Judicial Canon 2
states that “[a] Judge shall perform the duties of judicial office impartially,
competently, and diligently.” Judges must be “objective and open-minded.”
Ind. Judicial Conduct Rule 2.2, cmt. 1. The public entrusts the judiciary “to
provide a tribunal as superior to influence as possible, in which a claim might
be decided.” Matter of Guardianship of Garrard, 624 N.E.2d 68, 70 (Ind. Ct. App.
1993). While the trial judge may have justly and correctly decided the case at
bar, the appearance of impropriety requires reversal. Id. Generally, a judge
must disqualify himself when there exists a reasonable question regarding his
impartiality. Id. Thus, our review should focus on “whether an objective
person, knowledgeable of all the circumstances, would have a rational basis for
doubting the judge’s impartiality.” Patterson v. State, 926 N.E.2d 90, 94 (Ind.
Ct. App. 2010). In other words, the question is not whether the judge’s
impartiality is impaired in fact, but whether there exists a reasonable basis for
questioning a judge’s impartiality. Bell v. State, 655 N.E.2d 129, 132 (Ind. Ct.
App. 1995).
[17] Mother directs our attention to several instances of perceived impartiality.
Specifically, Mother contends that the trial court inconsistently applied the trial
court rules when it allowed Father to request a change in the dependents for tax
purposes during the hearing, while it denied her move for attorney fees. She
asserts that she was found in contempt on an issue not included in Father’s
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 11 of 18 motion for rule to show cause and she claims that while the trial court “made
an extensive statement of clarification regarding complying with [d]iscovery
directed at her,” the trial court “completely failed to address [her] concern over
evidence not turned over [by Father] in [d]iscovery.” (Appellant’s Br. p. 27).
[18] Mother’s specific contentions sound more like disagreements with the trial
court’s rulings on these particular issues than allegations of bias. Our review of
the record indicates that the trial court ruled in favor of and against both parties;
we did not find any instances where partiality or bias could be perceived.
Rather, the record discloses a contested hearing in which the trial court had to
frequently rule for or against a party on a multitude of different issues. A mere
negative ruling by the trial court does not amount to a biased tribunal. Based
on the circumstances before us, we cannot find a reasonable basis to doubt the
trial court’s impartiality. See Patterson, 926 N.E.2d at 94.
III. Unreimbursed Medical Expenses
[19] Next, Mother treats us to a rambling discourse about unreimbursed medical
expenses, at the source of which is an alleged discovery violation and a
misunderstanding about the health reimbursement account (HRA).
[20] First, Mother contends that Father failed to timely disclose the children’s dental
expenses. Specifically, she asserts that Father had “provided nothing to [her]
regarding these dental expenses beyond a number on a list.” (Appellant’s Br. p.
29). However, Mother never raised this argument at trial. During the hearing,
Father’s counsel requested the trial court to admit the listing of the 2013 and
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 12 of 18 2014 uninsured medical expenses. Father affirmed that he had previously
provided this documentation to Mother. Mother never objected nor did she
question Father on this issue during cross-examination or request a continuance
to examine the documents. Accordingly, Mother has waived the claim for our
review. See Farley Neighborhood Ass’n v. Town of Speedway, 765 N.E.2d 1226,
1231 (Ind. 2002) (a party waived its argument regarding a discovery violation
where the party did not object to admission of the document or request a
continuance).
[21] Next, Mother makes a convoluted argument, in essence claiming that she
overpaid her share of the unreimbursed dental expenses. In particular, Mother
claims that because certain expenses were paid through Father’s HRA, these
were not paid by Father himself and therefore cannot be categorized as
unreimbursed expenses. During the hearing on Mother’s motion to correct
error, the parties clarified that Father has a United Healthcare Choice Plus Plan
with an HRA. The HRA is “owned and funded by” Father’s employer to help
“pay for covered health care services.” (Appellant’s Exh. 3 MTCE 1). These
funds are available to Father to pay for his own and his children’s health care
expenses. The HRA is used in conjunction with a high deductible insurance
plan to keep health care premiums low. Until it is depleted, the HRA
automatically pays for the covered service until the deductible is met; once the
deductible is met, Father’s health insurance covers the bills. On the other hand,
1 We will refer to the transcript and exhibits of the hearing on Mother’s motion to correct error as MTCE.
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 13 of 18 if the entire HRA is depleted within a covered period, the remaining uninsured
medical expenses will be paid out-of-pocket by Father until the deductible is
met. Even though the HRA is owned by Father’s employer, any funds not used
in a particular year, roll over to the following year.
[22] The HRA is an employer-provided benefit and is part of Father’s remuneration
package. Mother’s argument would require Father to use all of his HRA
benefits for the children at the expense of foregoing these benefits for himself
and before Mother would incur any responsibility towards the children’s
uninsured medical expenses. The trial court’s Order clearly directed Mother to
carry her share of the uninsured medical expenses, calculated pursuant to the
six percent rule. Whether these uninsured medical expenses were paid by
Father’s HRA or out-of-pocket is immaterial and of no consequence.
Ultimately, uninsured medical expenses were incurred by the children, and
both parents share responsibility for these costs.
[23] Lastly, Mother disputes that Father failed to mention the refund checks he
received from the dentist after the insurance company processed the claim.
These refund checks are for $772 and $1,570 and include the annotation
“overpayment refund.” (Appellant’s Exh. 1 MTCE). However, besides this
annotation, Mother did not present any evidence whether this refund
represented the children’s dental expenses or Father’s. The trial court heard the
evidence during the hearing on Mother’s motion to correct error, took Mother’s
evidence into account, and affirmed its original decision. We refuse to disturb
the trial court’s ruling.
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 14 of 18 IV. Modification of Custody
[24] Mother argues that the trial court abused its discretion by denying her motion
for modification of custody. Traditionally, we give wide latitude to our trial
courts in family-law matters, and we review a trial court’s custody
determination for an abuse of discretion. Julie C. v. Andrew C., 924 N.E.2d
1249, 1256 (Ind. Ct. App. 2010). We neither reweigh the evidence nor assess
witness credibility. Id. Rather, we consider only the evidence and inferences
most favorable to the trial court’s judgment. Id. The party seeking to modify
custody has the burden of demonstrating that the existing custody arrangement
should be altered. Id.
[25] Our legislature has defined the circumstances under which a custody order may
be modified, providing in relevant part:
(a) The 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 (1) or more of the factors that the court may consider under section 8 and, if applicable section 8.5 of this chapter.
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.
Ind. Code § 31-17-2-21. Indiana Code section 31-17-2-8 specifies that a trial
court is to consider all relevant factors, including:
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 15 of 18 (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 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, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 16 of 18 [26] In its denial of Mother’s motion for modification of custody, the trial court did
not enter, nor did the parties request, specific findings of fact. When reviewing
a general judgment, we will affirm if the judgment can be sustained on any legal
theory supported by the evidence. See In re S.D., 2 N.E.3d 1283, 1287 (Ind.
2014), reh’g denied.
[27] The record supports the trial court’s denial of Mother’s motion to modify
custody, finding that “there ha[d] not be[en] a substantial and continuing
change in circumstances that warrants the change in physical custody.”
(Appellant’s App. p. 41). The trial court did change Mother’s parenting time,
eliminating the midweek visits. During the hearing on Mother’s motion, the
children’s GAL advised against modifying physical custody in favor of Mother.
Likewise, C.E.’s therapist did not recommend a change in custody. Since
changing physical custody to Father on March 11, 2013, the children are
attending school regularly, are doing well in their coursework, and are involved
in extracurricular activities. J.E. has a definite plan for his future and is
working diligently towards attaining that goal.
[28] Mother argues that Father is actively alienating her from the children and
excluding her from their lives. She disputes the GAL’s recommendation and
instead references the report of her own psychologist, which contradicts the
GAL’s and the trial court’s conclusion. However, the trial court was presented
with this conflicting evidence and decided to deny Mother’s motion.
Accordingly, Mother’s argument is nothing more than an invitation to reweigh
the evidence and assess witness credibility, which we decline.
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 17 of 18 CONCLUSION
[29] Based on the foregoing, we conclude that (1) Mother was properly found in
contempt of court; (2) the trial court impartially applied the trial rules; (3) the
trial court properly calculated Mother’s share of unreimbursed medical
expenses; and (4) the trial court did not abuse its discretion by denying
Mother’s motion to modify custody.
[30] Affirmed.
[31] Kirsch, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 15A05-1510-DR-1692 | August 4, 2016 Page 18 of 18