R.C. v. J.Q.

• Court: Indiana Court of Appeals
• Decided: May 29, 2014
• Docket: 49A04-1308-DR-425
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. May 29 2014, 10:25 am

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: KATHLEEN M. MEEK KATHERINE A. HARMON Bowen & Associates, LLC. JARED S. SUNDAY Indianapolis, Indiana Mallor Grodner LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

R.C., ) ) Apellant-Defendant, ) ) vs. ) No. 49A04-1308-DR-425 ) J.Q ) ) Appellees-Plaintiffs. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Christopher Haile, Magistrate Cause No. 49D06-1201-DR-853

May 29, 2014 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge R.C. (“Father”) appeals from the Marion Superior Court’s order granting J.Q.’s

(“Mother”) petition to modify custody, child support, and parenting time. Father raises

five issues, which we consolidate and restate as the following four:

I. Whether the trial court abused its discretion when it denied Father’s motion to continue the final hearing;

II. Whether the trial court abused its discretion when it allowed a witness to rely on documents not admitted into evidence during her testimony;

III. Whether the trial court’s child support order is not supported by the evidence; and,

IV. Whether the trial court erred by failing to make required findings to support its decision to restrict Father’s parenting time to two supervised hours per week.

We affirm in part and remand in part for proceedings consistent with this opinion.

Facts and Procedural History

During their marriage, the parties had two children: J.C., born in November 2008,

and G.C., born in May 2010. Mother and Father met in the military. Father served in the

Army from 2006 to 2011, which service included a tour of duty in Iraq. Father was

honorably discharged. Father is disabled as a result of his military service. Mother

serves in the National Guard and is employed by Amazon.

The parties’ marriage was dissolved by a Texas court in December 2010. The

court awarded Mother and Father joint legal and physical custody of the children, and

neither party was ordered to pay child support.

By mutual agreement, the parties did not comply with the custody arrangement

established in the Texas dissolution decree. Mother, who had returned to Indiana, had

physical custody of the children from December 2010 to August 2011. Because Mother

2 had to attend military training in August 2011, she arranged for Father, who had settled in

New York, to have physical custody of the children.

Mother attempted to regain custody of the children shortly thereafter but could not

establish Father’s whereabouts. However, Mother did have Father’s phone number

during this time and was able to speak to the children. Mother was informed of Father’s

address during Thanksgiving 2011, and regained physical custody of the children on

December 28, 2011. At that time, the children looked tired and had poor hygiene.

Mother took J.C. to Riley Hospital the next day because she believed that J.C. had

been sexually abused. Medical professionals at Riley found no evidence of sexual abuse.

However, J.C.’s “vaginal area was likely irritated due to poor hygiene.” Ex. Vol.,

Petitioner’s Ex. 2. Mother also contacted Child Protective Services, but they declined to

investigate because Father is a resident of New York.

Mother then sought treatment for herself and the children with Anny Maslowski, a

licensed mental health counselor. Mother expressed concern that J.C. was displaying

sexualized behavior upon return from her Father’s home in December 2011. Maslowski

observed that J.C. “appears to show genuine fear” when she is asked about Father. Ex.

Vol., Petitioner’s Ex. 1. Maslowski never observed J.C. engaging in sexualized

behaviors, but based on Mother’s and maternal grandmother’s description, believed that

J.C. was “either exposed to explicit material” or saw “adults engaging in sexual acts.” Tr.

pp. 15-16. Maslowski recommended that the children remain in Mother’s physical

custody and have only limited, supervised contact with Father. Tr. p. 13. Maslowski also

3 believes that Mother is experiencing symptoms of post-traumatic stress disorder and

depression resulting from abuse that Mother suffered during her marriage to Father.

On January 9, 2012, Mother filed in Marion Superior Court a Petition to Modify a

Foreign Decree and to Modify Custody, Child Support and Parenting Time. Thereafter,

the trial court issued a temporary order awarding Mother sole custody of the children,

ordering Father to pay $70 per week in child support, and limiting Father’s parenting

time to supervised time in Indiana. The court also ordered the parties to be evaluated by

the Domestic Relations Counseling Bureau (“DRCB”).

Robin Pannell (“Pannell”), the evaluator from the DRCB, interviewed Mother,

maternal grandmother, Father, and Father’s girlfriend. Mother reported to Pannell that

Father emotionally and physically abused her during their marriage. She also stated that

Father yells at and physically abuses the children. Mother alleged that while the children

were in Father’s custody from August to December 2011, he did not take them to the

doctor and refused to give them their prescribed asthma medication.

Father alleged that Mother abused alcohol during their marriage and was

physically and verbally abusive to Father. He told Pannell that Mother frequently

threatened to harm herself. Father also claims that Mother physically abused the children.

Father denied abusing the children but stated that he disciplines them by spanking them.

Father also stated that Mother knew where the children were at all times when they were

in his custody in 2011. He alleged that Mother did not provide any medication or

medical information for the girls while they were in his care, and he does not believe that

they have asthma. Father’s girlfriend, with whom he lives, told Pannell that both Mother

4 and Father were good parents. Pannell asked both parents to complete a drug screen.

Mother did not test positive for any illegal substances. Father failed to complete the drug

screen.

Pannell also spoke to J.C.’s teacher at Hope Baptist Daycare. J.C. attended the

daycare from January to March 2012. Her teacher had no concerns of abuse or neglect,

and never witnessed any sexualized behavior.

In the evaluation, Pannell expressed concern that Mother agreed to allow Father to

have custody of the girls from August to December 2011. In addition, Pannell stated,

“the extensive detailed accounts of [J.C.’s] statements and behavior by the maternal

grandmother and by [Mother] are cause for alarm regarding [the children] being in

[Father’s] unsupervised care. However it is questionable why [Mother] said that [J.C.]

behaved inappropriately while she was in preschool and the preschool director did not

corroborate this statement.” Ex. Vol. Petitioner’s Ex. 2. However, she expressed

concern that “at the very least, the girls have been exposed to mistreatment and have

observed adult sexual behavior.” Id. She also observed that Father’s girlfriend

“contradicted many of the negative statements [Father] made about [Mother],” and

Mother’s behavior “is common to women who have been abused.” Id. Pannell

recommended that Mother have sole custody of the children and Father not have any

parenting time until J.C. “has participated in counseling with a qualified therapist to

assess whether physical or sexual abuse occurred, and the counselor deems unsupervised

contact to be appropriate.” Id.

5 Prior to the final hearing, Father filed a motion to modify child support and

parenting time. The trial court denied Father’s request for unsupervised parenting time

and ordered supervised parenting time to occur at Kids Voice in Indianapolis as was

previously ordered. The trial court declined to rule on the motion to modify child support

until after the final hearing.

The final hearing was held on June 17, 2013. Father’s counsel withdrew her

appearance approximately two months before the final hearing, and Father proceeded pro

se. Father admitted that he had not made any attempt to schedule supervised parenting

time through Kids Voice. Tr. p. 85. He stated that seeing his children for only one hour

would be heartbreaking and would worsen his symptoms of depression. Tr. p. 110.

On June 21, 2013, the trial court issued an order awarding sole custody of the

children to Mother and ordering Father to pay $135 per week in child support. Father

was also ordered to pay an additional $5 per week toward the $1346 arrearage from the

temporary child support order. The trial court also ordered that Father “shall have

supervised parenting time in the State of Indiana up to two hours per week either through

the Kids Voice Agency or a mutually agreed adult supervisor.” Appellant’s App. p. 155.

Father was also permitted weekly telephone and/or Skype contact “as previously agreed

by the parties.” Id.

Father timely filed a motion to correct error and motion to reconsider. Father

argued, in part, that it is impossible for him to exercise supervised parenting time in

Indiana two hours per week because he lives in New York and has limited financial

resources. Father also argued that the trial court erred when it deviated from the

6 Parenting Time Guidelines without the required accompanying written explanation.

Father’s motions were denied on August 6, 2013. Father now appeals. Additional facts

will be provided as necessary.

I. Continuance

After the final hearing had begun and three witnesses had testified, Father

requested a continuance. Father stated that he had hired new counsel, but counsel had not

received notice of the hearing. Father argues the trial court abused its discretion when it

denied his motion for a continuance.

Pursuant to Indiana Trial Rule 53.5, “trial may be postponed or continued in the

discretion of the court, and shall be allowed upon a showing of good cause established by

affidavit or other evidence.” “A trial court’s decision to grant or deny a motion to

continue a trial date is reviewed for an abuse of discretion, and there is a strong

presumption the trial court properly exercised its discretion.” Gunashekar v. Grose, 915

N.E.2d 953, 955 (Ind. 2009). “A denial of a motion for continuance is abuse of

discretion only if the movant demonstrates good cause for granting it.” Id.

The trial court denied Father’s motion to continue because no attorney had entered

an appearance on Father’s behalf, and he made his motion two hours into the hearing. Tr.

p. 82. Moreover, the court noted that Father’s two prior attorneys had withdrawn their

respective appearances from the case. Father’s second attorney withdrew her appearance

nearly two months prior to the final hearing. At the start of the final hearing, the trial

court asked Father if he was ready to proceed and he replied that he was. Tr. p. 4. Father

never claimed that he had hired another attorney until he asked for a continuance after

7 Mother had presented testimony from three witnesses. Under these facts and

circumstances, we cannot conclude that the trial court abused its discretion when it

denied Father’s request to continue the final hearing.

II. Therapist’s Testimony

Father argues that the trial court abused its discretion when it allowed Anny

Maslowski to refer to her notes and case file during her testimony. Evidence Rule 612

provides:

If, while testifying, a witness uses a writing or object to refresh the witness’s memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.

Father argues that he “did not have an opportunity to examine either the notes or the case

file.” Appellant’s Br. at 20.

However, Father failed to object to Maslowski’s use of her case file to refresh her

recollection, and he did not request the opportunity to examine the case file. He has

therefore waived this issue. See Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct. App.

2004). We also observe that Father’s objection and issue on appeal concerns the

extremely limited use Maslowksi made of the file to determine the date she first began

seeing J.C. Id. (citing Tr. pp. 9-10).

III. Child Support

Father also argues that the trial court “erred by failing to provide any findings

concerning child support, or by including a child support worksheet, thus making it

impossible for Father to verify whether the Court’s child support order was in compliance

8 with the child support guidelines.” Appellant’s Br. at 25. Father failed to submit his own

child support worksheet; therefore, he has waived his right to appeal the trial court’s child

support order. Butterfield v. Constantine, 864 N.E.2d 414, 417 (Ind. Ct. App. 2007).

Mother submitted a child support worksheet, and Father’s income, as reflected on

that worksheet is substantially the same as the income Father admitted to at the final

hearing. Appellant’s App. p. 169; Tr. p. 106. Mother submitted an additional exhibit

establishing Father’s weekly child support obligation after taking into account the

monthly income the children receive from Father’s Social Security disability payments.

Id. at 170. Mother’s exhibits establish a weekly child support obligation of $135 per

week, which is the amount the trial court ordered Father to pay. Although the trial court

did not include a child support worksheet with its order, the calculation of Father’s child

support obligation is supported by the evidence.

IV. Parenting Time

Finally, we address Father’s argument that the trial court erred when it restricted

Father’s parenting time to two hours of supervised parenting time per week without

entering findings of fact to support its decision. We review and will reverse a trial

court’s determination of a parenting time issue only for an abuse of discretion. Shady v.

Shady, 858 N.E.2d 128, 143 (Ind. Ct. App. 2006), trans. denied. On appeal, we will not

reweigh the evidence or judge witness credibility. Id. “In all parenting time

controversies, courts are required to give foremost consideration to the best interests of

the child.” Id.

9 “The right of non-custodial parents to visit with their children is a ‘sacred and

precious privilege.’” Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App. 2003)

(quoting McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. Ct. App. 1997), trans.

denied). “Ideally, a child should have a well-founded relationship with each parent.” Id.

For this reason,

[e]xtraordinary circumstances must exist to deny parenting time to a parent, which necessarily denies the same to the child. If the trial court finds such extraordinary circumstances do exist, then the trial court shall make specific findings regarding its conclusion that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development.

Perkinson v. Perkinson, 989 N.E.2d 758, 765 (Ind. 2013).

Our supreme court’s holding in Perkinson tracks the language of Indiana Code

section 31-17-4-1, which provides that “[a] parent not granted custody of the child is

entitled to reasonable parenting time rights unless the court finds, after a hearing, that

parenting time by the noncustodial parent might endanger the child’s physical health or

significantly impair the child’s emotional development.” Moreover, a party who seeks to

restrict a parent’s visitation rights bears the burden of proving by a preponderance of the

evidence a justification for such a restriction. Hatmaker v. Hatmaker, 998 N.E.2d 758,

761 (Ind. Ct. App. 2013).

In Hatmaker, the child’s father was convicted of battering the mother. In the

dissolution decree, the father was awarded only supervised parenting time with the

parties’ child. After the father completed domestic violence counseling and parenting

classes, he requested unsupervised parenting time. At a hearing on the father’s motion,

10 the mother testified that she was afraid of father, he had obtained her address and sent her

letters, and she feared father was responsible for leaving a decapitated rabbit on her

doorstep. The trial court denied the father’s request without entering any factual findings

that would support a conclusion that parenting time would endanger the child’s health or

significantly impair the child’s emotional development. The court also stated that

parenting time could be modified upon agreement of the parties.

Father appealed and our court concluded that the order for supervised parenting

time, which could be modified by agreement of the parties, was contrary to law. Id. at

763 Specifically, we held:

The trial court made no finding of endangerment. Indeed, the trial court implicitly found that parenting time modification presented no likely danger to R.H. as the order provides for modification “upon agreement of the parties at any time.” In essence, the order confers upon Mother the prerogative to enforce the supervision restriction at her discretion. The order is erroneous, as it is internally inconsistent and in contravention of statutory authority. Accordingly, we reverse the order denying Father parental access except when supervised or upon agreement of Mother. We remand with instructions to the trial court to either enter an order containing sufficient findings to support a parenting time restriction or enter an order that does not contain such a restriction.

Id. at 762 (record citation omitted). See also Walker v. Nelson, 911 N.E.2d 124, 130 (Ind.

Ct. App. 2009) (stating that the trial court is statutorily required to make a specific

finding ‘of physical endangerment or emotional impairment prior to placing a restriction

on the noncustodial parent’s visitation’”) (citation omitted); In re Paternity of V.A.M.C.,

768 N.E.2d 990, 1001-02 (Ind. Ct. App. 2002).

Here, the court restricted Father’s parenting time to two hours of supervised time

per week in Indiana through the Kids Voice Agency or a “mutually agreed adult

11 supervisor.” Appellant’s App. p. 155. Father’s ability to exercise two hours of

supervised time per week is limited by the significant distance between Indianapolis and

his home in Oswego, New York. The trial court severely restricted Father’s parenting

time without making the specific and required statutory findings. Although there is

evidence in the record that might support a finding of physical endangerment or

emotional impairment sufficient to restrict Father’s parenting time, such a serious

restriction must be made pursuant to a finding that such parenting time would physically

endanger or emotionally impair J.C. and/or G.C.

For these reasons, we remand to the trial court with instructions to either: (1) enter

an order containing findings sufficient to support a parenting time restriction under

Indiana Code section 31–17–4–2 or (2) enter an order without the restriction. See Walker,

911 N.E.2d at 130; see also D.B. v. M.B.V., 913 N.E.2d 1271, 1275 (Ind. Ct. App. 2009)

(stating “on remand, should the trial court restrict Father’s parenting time upon entry of

the requisite statutory finding of endangerment, we encourage the trial court to order that

the parenting time be supervised.”).1

Conclusion

We affirm the trial court’s denial of Father’s motion to continue the final hearing

and conclude that Father waived his claim of error under Evidence Rule 612. Moreover,

the trial court’s child support order is supported by the evidence. However, we remand

1 Because we find it necessary to remand this case on the issue of Father’s parenting time, we decline to address his argument that Mother failed to present sufficient evidence to establish that Father’s exercise of parenting time with the children would endanger their physical health or impair their emotional development.

12 this case to the trial court with instructions to issue an order containing findings sufficient

to support its decision to restrict Father’s parenting time or enter a new order without the

restriction.

Affirmed in part and remanded in part.

FRIEDLANDER, J., and PYLE, J., concur.