J.L.F.-D. v. C.N.D. (mem. dec.) ( 2020 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                      FILED
    regarded as precedent or cited before any                             Jan 31 2020, 9:00 am
    court except for the purpose of establishing                               CLERK
    the defense of res judicata, collateral                                Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                           and Tax Court
    APPELLANT PRO SE
    J.L.F.-D.
    Philadelphia, Pennsylvania
    IN THE
    COURT OF APPEALS OF INDIANA
    J.L.F.-D.,                                               January 31, 2020
    Appellant,                                               Court of Appeals Case No.
    19A-DR-1381
    v.                                               Appeal from the Wayne Circuit
    Court
    C.N.D.,                                                  The Honorable David Kolger,
    Appellee.                                                Judge
    Trial Court Cause No.
    89C01-1606-DR-160
    Bailey, Judge.
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020               Page 1 of 10
    Case Summary
    [1]   J.L.F.-D. (“Father”), proceeding pro se, appeals the trial court order which
    modified child custody and suspended his parenting time, among other things.1
    As Father’s appeal brief is not in compliance with Indiana Appellate Rule 46, it
    is not clear what issue or issues he raises on appeal, and his appeal is waived.
    Waiver notwithstanding and assuming Father raises the issue of whether the
    trial court erred when it modified child custody and suspended parenting time,
    we affirm.
    Facts and Procedural History
    [2]   The marriage of Father and C.N.D. (“Mother”), parents of J.C.D. (“Child”),
    who was born on March 25, 2008, was dissolved in an order dated July 11,
    2018. The dissolution order granted the parents joint legal custody and granted
    Mother physical custody of Child. Mother and Child lived in Richmond,
    Indiana, and Father lived in Philadelphia, Pennsylvania. Child had telephone
    contact with Father and parenting time with Father in Philadelphia.
    [3]   At the conclusion of Father’s parenting time with Child during the Christmas
    holiday in 2018, Father refused to return Child to Mother due to Father’s
    1
    The order also: (1) found Father in contempt of the dissolution decree and ordered that he “may purge
    himself of such contempt” by paying $1,775 in Mother’s attorney fees; (2) denied Mother’s petition for
    appointment of a parenting time coordinator; and (3) granted the Mediator’s petition to enforce payment of
    mediation costs and ordered Father to pay such costs. App. at 53-55.
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020                Page 2 of 10
    allegations that Child was abused. On five occasions Father had registered
    complaints with the Wayne County, Indiana Department of Child Services and
    a child services agency in Philadelphia in which he alleged Mother neglected
    and/or abused Child. All of those allegations were found by the respective
    child services agencies to be unsubstantiated.
    [4]   The trial court held a status conference on January 3, 2019, at which it set an
    additional status conference for January 7 and ordered Father to appear at that
    conference with Child. On January 7, Mother filed a petition to hold Father in
    contempt of the dissolution decree and a motion to modify custody by granting
    her sole legal custody and suspending Father’s parenting time. On the same
    date, Father filed a petition to modify custody and child support. Father
    appeared with Child at the January 7 status conference and turned Child over
    to Mother.
    [5]   On May 21, 2019, the trial court conducted a hearing on all pending motions.
    Father failed to personally appear and was not represented by counsel. In an
    order dated May 23, 2019, the trial court denied Father’s petition to modify
    custody and granted Mother’s petition for contempt and to modify custody and
    parenting time. Specifically, the trial court found Father in contempt of the
    dissolution decree for registering false complaints with child service agencies
    and refusing to return Child to Mother’s custody after parenting time.
    Regarding modification of joint legal custody, the trial court found, in relevant
    part, that:
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 3 of 10
    -        Father had “repeatedly demonstrated his unwillingness” to
    communicate and cooperate with Mother to advance
    Child’s welfare;
    -        Father’s “numerous false allegations to the child service
    agencies in Indiana and Pennsylvania … were
    undoubtedly aimed by Father at destroying Mother’s
    credibility,” and that “Father showed no regard for the
    stress and tension caused to their child by the multiple,
    intrusive interviews necessitated by his false claims[;]”
    -        “Father’s refusal to return the child to Mother’s custody
    following the Christmas break not only demonstrated his
    unwillingness to co-parent with Mother, but also caused
    further stress on their child[;]”
    -        “Father’s absolute refusal to engage in the mediation
    process, as well as his repeated failures to meet and
    cooperate with the court appointed [GAL], was further
    evidence of his unwillingness to compromise with
    Mother[;]”
    -        “Father is unwilling to co-parent with Mother in any
    meaningful sense,” making joint legal custody “no longer
    a viable option.”
    App. at 53-54. The trial court concluded that the custody order was modified to
    grant Mother “sole legal custody” of Child. 
    Id. at 54.
    [6]   Regarding modification of parenting time, the trial court noted that it had
    “grave concerns about the safety and well being of this child while in Father’s
    care and custody” due to his “defiant decision to refuse to return” Child to
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 4 of 10
    Mother in January of 2019. 
    Id. The court
    also cited testimony of the GAL
    “regarding how traumatic that event was for [Child] and how she felt she might
    not get to see her Mother again.” 
    Id. The court
    noted its further concern about
    Father’s “‘clandestine’ methods of accessing [Child] through video game
    interaction … and his use of relatives’ … social media accounts and/or
    electronic communication devices.” 
    Id. The court
    concluded
    that any further access by Father to [Child] could negatively
    impact her emotional development and/or her physical health.
    Accordingly, the Court finds that Father’s parenting access with
    [Child] should be suspended until further order of this court.
    IT IS THEREFORE ORDERED that Father’s parenting time
    access with the parties[’] minor child … is hereby SUSPENDED
    until further order of this Court.
    
    Id. Father now
    appeals.
    Discussion and Decision
    [7]   We begin by noting that, although Father appeals pro se, he is held to the same
    standard as trained counsel and is required to follow procedural rules.
    Meisberger v. Bishop, 
    15 N.E.3d 653
    , 656 (Ind. Ct. App. 2014). Therefore, we do
    not “‘indulge in any benevolent presumptions on [his] behalf, or waive any rule
    for the orderly and proper conduct of [his] appeal.’” 
    Id. (quoting Ankeny
    v.
    Governor of State of Ind., 
    916 N.E.2d 678
    , 689 (Ind. Ct. App. 2009), trans. denied).
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 5 of 10
    [8]    We also note that Mother has not filed an appellee’s brief. Under such
    circumstances, “we do not undertake the burden of developing appellee’s
    arguments, and we apply a less stringent standard of review, that is, we may
    reverse if the appellant establishes prima facie error.” 
    Id. Prima facie
    error
    means error “at first sight, on first appearance, or on the face of it.” Trinity
    Homes, LLC v. Fang, 
    848 N.E.2d 1065
    , 1068 (Ind. 2006).
    Waiver
    [9]    Indiana Appellate Rule 46 contains the requirements for appellate briefs. The
    purpose of the rule “is to aid and expedite review and to relieve the appellate
    court of the burden of searching the record and briefing the case.” Tipton v.
    Estate of Hofmann, 
    118 N.E.3d 771
    , 776 (Ind. Ct. App. 2019). When an
    appellant’s noncompliance with Rule 46 is “so substantial that it impedes our
    appellate consideration of the errors,” those alleged errors are waived. 
    Id. [10] Here,
    as in Tipton, Father’s brief “fails to comply in virtually every respect with
    Indiana Appellate Rule 46.” 
    Id. Rule 46(A)(1)
    requires a table of contents that
    lists “each section of the brief, including the headings and subheadings of each
    section and the page on which they begin.” Father’s purported “Table of
    Contents” only consists of the names and relationships of people in the
    subsequent thirty-page narrative, and the following three lines:
    Page 3-21 Summary and facts from 12/2016 to Present
    Page 22-30 Illegal Actions done to my daughter and I
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 6 of 10
    Page 30-32 Parenting Plan
    Appellant’s Br. at 2. Father’s brief does not contain a Table of Authorities,
    App. R. 46(A)(2), a Statement of Issues, App. R. 46(A)(4), a Statement of the
    Case, App. R. 46(A)(5), or a Summary of the Argument, App. R. 46(A)(7), all
    of which are required. Nor does his brief contain a sufficient Statement of
    Facts; under Appellate Rule 46(A)(6), that section must contain facts which are
    supported by references to the Record on Appeal or the Appendix. Father’s
    brief contains not one reference to the Record or Appendix.
    [11]   Finally, to the extent Father’s brief contains an Argument section, it is
    completely deficient. Appellate Rule 46(A)(8) requires an Argument section
    that “contains the contentions of the appellant on the issues presented,
    supported by cogent reasoning.” Pages three to twenty-five and thirty through
    thirty-two of Father’s brief do not have any headings or subheadings and are
    each one long, multi-paged paragraph. Moreover, those parts of the brief
    contain nothing but Father’s unsupported statements of his version of the facts
    and argument without supporting authority or cogent reasoning. Father chose
    not to appear and give testimony at the hearing on his and Mother’s petitions to
    modify custody; he certainly may not give such testimony in an appeal brief.
    And the only authority Father references is contained in pages twenty-five
    through thirty and consists of nothing other than a purported recitation of the
    Indiana Parenting Time Guidelines, without citation or ascertainable section
    references. Father’s only statement regarding why those guidelines are relevant
    is the following sentence: “[Mother], [Mother’s] family and the Wayne County
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 7 of 10
    Court have ignored all of these laws and rights [Child] and I have.” Appellant’s
    Br. at 25. That is not the cogent reasoning required by the appellate rules.
    [12]   Because Father’s brief is deficient in every way, his arguments are waived.
    Waiver Notwithstanding
    [13]   Waiver notwithstanding,2 and assuming Father appeals the custody
    modification and parenting time suspension orders, Father has failed to show
    prima facie error. We review both orders for an abuse of discretion. Robertson
    v. Robertson, 
    60 N.E.3d 1085
    , 1090-91 (Ind. Ct. App. 2016) (custody
    modification); 
    Meisberger, 15 N.E.3d at 656
    (restriction of parenting time). The
    trial court also made findings and conclusions; therefore, we employ a two-
    tiered standard of review under which we first determine whether the record
    supports the findings and then whether the findings support the judgment. E.g.,
    Nelson v. Nelson, 
    10 N.E.3d 1283
    , 1285 (Ind. Ct. App. 2014) (quotation and
    citation omitted). Father does not challenge any specific finding; therefore, we
    only address whether the findings support the judgment.
    [14]   A trial court may modify a child custody order when it finds that modification
    is in the child’s best interests and there has been a substantial change in one or
    more of the relevant statutory factors, such as the interaction of the child with
    the parents and the mental and physical health of all individuals involve. Ind.
    2
    If possible, we prefer to decide cases on their merits. Picket Fence Prop. Co. v. Davis, 
    109 N.E.3d 1021
    , 1030
    (Ind. Ct. App. 2018), trans. denied.
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020                    Page 8 of 10
    Code § 31-17-2-21; I.C. § 31-17-2-8(1)-(8). Here, the trial court made the
    following findings in support of its modification of custody: there was a
    breakdown in communication and cooperation caused by Father; Father made
    numerous false allegations of Mother’s alleged abuse/neglect to child services;
    Child suffered emotional harm caused by the “multiple, intrusive interviews
    necessitated by [Father’s] false claims[;]” and Father refused to return Child to
    Mother’s custody following visitation, which the GAL testified was “traumatic”
    for Child. App. at 53-54. Those findings support the trial court’s modification
    order granting Mother sole legal custody of Child. See, e.g., A.W. v. Z.B. (In re
    Paternity of M.P.M.W.), 
    908 N.E.2d 1205
    , 1208-09 (Ind. Ct. App. 2009) (custody
    modification supported by findings that parent absconded with the child and
    made false accusations against other parent).
    [15]   A trial court may restrict parenting time when it finds that such restriction
    would be in the child’s best interests and that “parenting time might endanger
    the child’s physical health or significantly impair the child’s emotional
    development.” I.C. § 31-17-4-2. Here, the trial court found that Child was
    harmed by: Father’s refusal to cooperate with the GAL; his “defiant decision”
    to refuse to return Child to Mother in January 2019 and the trauma caused to
    Child by that refusal; and his “clandestine” methods of accessing Child in
    subversion of court orders. App. at 54. Moreover, the court specifically found
    that “any further access by Father with [Child] could negatively impact her
    emotional development and/or her physical health.” 
    Id. Those findings
    are
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 9 of 10
    sufficient to support the suspension of Father’s parenting time with Child. I.C.
    § 31-17-4-2.
    Conclusion
    [16]   Father’s complete failure to comply with Indiana Appellate Rule 46 resulted in
    waiver of his arguments on appeal. Waiver notwithstanding, the trial court did
    not abuse its discretion when it modified child custody to sole legal custody
    with Mother and suspended Father’s parenting time. Father failed to establish
    prima facie error.
    [17]   Affirmed.
    Kirsch, J., and Mathias, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 10 of 10
    

Document Info

Docket Number: 19A-DR-1381

Filed Date: 1/31/2020

Precedential Status: Precedential

Modified Date: 4/17/2021