In Re the Marriage of: J.W. v. M.W. (mem. dec.) , 77 N.E.3d 1274 ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 13 2017, 7:10 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
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Darlene R. Seymour William P. Means
Ciyou & Dixon, P.C. Roberts Means, LLC
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Marriage of: June 13, 2017
J.W., Court of Appeals Case No.
29A02-1612-DR-2869
Appellant-Petitioner,
Appeal from the Hamilton
v. Superior Court
The Honorable David K. Najjar,
M.W., Magistrate
Trial Court Cause No.
Appellee-Respondent
29D01-1006-DR-1444
Baker, Judge.
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[1] J.W. (Father) appeals the trial court’s order modifying the child custody
arrangement between Father and his ex-wife, M.W. (Mother). Father argues
that the trial court erred in two respects: (1) by awarding sole legal custody of
their children to Mother; and (2) by ordering that Father must get Mother’s
permission before enrolling the children in extracurricular activities, even if
those activities take place during his parenting time. Finding that the trial court
did not err by naming Mother sole legal custodian but that it is improper to
require Father to obtain Mother’s consent to the children’s extracurricular
activities when they are with Father, we affirm in part and reverse in part.
Facts
[2] Two children were born of the parents’ marriage: E.W., born in November
2006, and M.W., born in February 2009. Father and Mother were divorced on
January 14, 2011. Pursuant to the decree of dissolution, Mother was granted
primary physical and sole legal custody of the children; Father was awarded
parenting time pursuant to the Indiana Parenting Time Guidelines. On May 9,
2013, Father filed a petition to modify custody. The parties participated in
mediation and, on January 28, 2014, the trial court approved a mediated
agreement. The mediated agreement provided that Mother and Father would
share joint legal custody of the children and that Father would have additional
overnights with the children on Wednesdays.
[3] At some point, communication between the parents began to deteriorate and
they became unable to agree about issues such as the children’s extracurricular
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activities. The children are heavily involved in dance classes and competitions,
but Father wants them to be exposed to other activities. He enjoys taking them
to tennis and golf lessons at his country club, but feels compelled to take them
to dance instead during his parenting time. Additionally, Father was reluctant
to provide Mother with contact information when the girls are not at his home
during his parenting time.
[4] Over the course of 2015 and 2016, the parties filed many pleadings with the trial
court. Mother filed multiple motions for contempt, a motion to modify child
support, and a motion to determine the children’s extracurricular activities.
Father filed a petition to modify parenting time, and Mother then filed a
counter-petition to modify parenting time and custody. The trial court held a
hearing on all pending motions on April 14 and July 18, 2016. On August 5,
2016, the trial court issued an order on all pending matters. In relevant part, the
trial court found and held as follows:
12. The Court also finds that [Father] is in contempt of court
for failing to provide specific contact information to
[Mother] when the children are at a sleepover. The Court
finds that the Mediated Agreed Entry is specific with
respect to the information to be delivered to [Mother]
whenever the children are attending a sleepover and that
[Father] has willfully failed to deliver such information.
***
19. As the Court has noted above, the parties have great
difficulty in communicating effectively with one another.
The Court also finds that the parties are not co-parenting
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in an effective manner as [Father] has pursued extra-
curricular activities for the children unilaterally and has
refused to communicate with [Mother] on certain basic
aspects of co-parenting. The most notable example of this
is [Father’s] refusal to provide [Mother] with contact
information for individuals with whom the children would
be spending the night.
20. The Court finds, therefore, that it is in the best interests of
the children that the parties not exercise joint legal
custody, and that [Mother] be awarded sole legal custody
of the children.
21. The Court finds that it is in the best interests of the
children that the parties communicate as much as possible.
To this end, [Mother] is ordered to communicate with
[Father] regarding important events in the children’s lives,
particularly those items which require decisions as to the
children’s health, education, religious upbringing, and
welfare. To the extent that the parties can agree on those
decisions, they should do so. To the extent that the parties
cannot agree, after making a good faith attempt to agree,
[Mother] shall make the decision. [Father] shall not
unilaterally make decisions for the children, and should
not sign the children up for extra-curricular activities
without the consent of [Mother].
***
27. . . . Should [Father] enroll the children in any activity
without [Mother’s] consent, [Father] shall not be entitled
to any credit for [any] expenses he incurs for such activity,
nor shall [Mother] be obligated in any way to contribute
towards the expenses for the activity.
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Appellant’s App. Vol. II p. 27-29.
[5] At some point, the parties realized that there was a conflict in paragraphs
twenty-one and twenty-seven of the trial court’s order. The parties brought that
to the trial court’s attention and, on November 23, 2016, the trial court issued
an order clarifying its prior order:
4. To the extent any conflict between the two noted
paragraphs exists or is perceive[d] to exist, paragraph 21 of
the Order controls and Father must obtain Mother’s
consent prior to enrolling the parties’ children in
extracurricular activities, including activities during
Father’s parenting time.
5. Paragraph 27 of the Order is not intended to convey that
Father may enroll the children in extracurricular activities
without Mother’s consent.
Appealed Order p. 2. Father now appeals.
Discussion and Decision
I. Modification of Legal Custody
[6] Father argues that the trial court erred by modifying the parties’ legal custody
arrangement such that Mother has sole legal custody of the children. When
considering a modification from joint legal custody to sole legal custody, we
must determine whether there has been a substantial change in one or more of
the factors listed in Indiana Code section 31-17-2-15, in addition to considering
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any substantial change to the factors in Indiana Code section 31-17-2-8,1 as is
typically necessary for physical custody modifications. Milcherska v. Hoersman,
56 N.E.3d 634, 641 (Ind. Ct. App. 2016). Indiana Code section 31-17-2-15
provides that in evaluating a legal custody arrangement, the court shall consider
the following factors:
(1) the fitness and suitability of each of the persons awarded
joint custody;
(2) whether the persons awarded joint custody are willing and
able to communicate and cooperate in advancing the
child’s welfare;
1
The court shall determine custody and enter a custody order in accordance with the best interests of
the child. In determining the best interests of the child, there is no presumption favoring either
parent. The court shall consider all relevant factors, including 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 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.
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(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) whether the child has established a close and beneficial
relationship with both of the persons awarded joint
custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in
the home of each of the persons awarded joint custody.
This Court recently explained that the second factor above is significant:
Our courts have reiterated that factor (2), whether the parents are
willing and able to cooperate in advancing the child’s welfare, is
of particular importance in making legal custody determinations.
Julie C. [v. Andrew C.], 924 N.E.2d [1249,] 1260 [Ind. Ct. App.
2010)]; see also Carmichael [v. Siegel], 754 N.E.2d [619,] 635 [Ind.
Ct. App. 2001] (“One of the key factors to consider when
determining whether joint legal custody is appropriate is whether
the persons awarded joint custody are willing and able to
communicate and cooperate in advancing the child's welfare.”).
Where “the parties have made child-rearing a battleground, then
joint custody is not appropriate.” Periquet–Febres v. Febres, 659
N.E.2d 602, 605 (Ind. Ct. App. 1995). “Indeed, to award joint
legal custody to individually capable parents who cannot work
together is tantamount to the proverbial folly of cutting the baby
in half in order to effect a fair distribution of the child to
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competing parents.” Swadner v. Swadner, 897 N.E.2d 966, 974
(Ind. Ct. App. 2008) (quotation omitted).
Milcherska, 56 N.E.3d at 641-42.
[7] We afford trial courts a great deal of deference in family law matters
because of their unique, direct interactions with the parties face-
to-face, often over an extended period of time. Thus enabled to
access 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.
[8] Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). In reviewing a trial court’s order
in a family law matter, we will neither reweigh evidence nor reassess witness
credibility, and will view the evidence in the light most favorable to the
judgment. D.C. v. J.A.C., 977 N.E.2d 951, 954 (Ind. 2012).
[9] Here, the trial court found that the parents are no longer able to work together
or communicate effectively. Evidence in the record supporting this finding
includes:
 Father has failed to provide Mother with the right of first refusal when he
is unable to care for the children during his parenting time. Tr. p. 62-63.
 Father has refused to provide Mother with the host name and telephone
number of the location where the children were staying if they were not
with Father during his parenting time. Id. at 200-01.
 Father and Mother are unable to agree about the children’s
extracurricular activities. Specifically, Mother wants to increase the
amount of time the children spend dancing, and Father wants them to
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branch out to other activities. Despite many efforts, the parties continue
to disagree. Id. at 165-66, 183, 225-27.
Based on this evidence, the trial court found that the parents were no longer
communicating or co-parenting effectively and, as a result, it was in the best
interests of the children that Mother be awarded sole legal custody. We find
that this evidence supports the trial court’s conclusions that there was a
substantial change in the statutory factor regarding the parents’ communication
and cooperation and that the modification was in the children’s best interests.
The trial court had the benefit of assessing the witnesses and the situation in a
way that we cannot do based solely on a paper record. We cannot and will not
second-guess its carefully considered decision, and decline to reverse on this
issue.
II. Extracurricular Activities
[10] Father next argues that, even if the trial court did not err by naming Mother the
children’s sole legal custodian, it erred by ordering that Father must obtain
Mother’s consent to enroll the children in extracurricular activities, even if
those activities occur during his parenting time. Father argues that this order
impermissibly infringes on his constitutional rights as a parent. He insists that
even if Mother has sole legal custody, “she should not have the authority to
control what activities Father engaged in with the children during his parenting
time.” Appellant’s Br. p. 13.
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[11] Initially, we note that Mother acknowledges that her rights as legal custodian of
the children do not extend to small matters such as extracurricular activities:
“Mother agrees with Father that ‘legal custody’ relates to major decisions
regarding a child’s upbringing, including education, health care, and religion.”
Appellee’s Br. p. 7. Thus, the order relating to the children’s extracurricular
activities is a separate “consent requirement . . . based upon issues in [the] area
of child-related communication.” Id. at 9. We agree that this portion of the
order should not be analyzed in the context of legal custody, but instead in the
context of a parent’s right to make unilateral decisions regarding the way in
which her children spend their time when they are in the care and custody of
their other parent.
[12] Here, the trial court found that the parents have difficulty communicating and
reaching agreements about the children’s extracurricular activities. To solve
this issue by giving Mother the sole right to consent or refuse, however, goes a
step too far. Would the trial court require Father to ask Mother’s permission to
take the children to see a particular movie when they are with him? To take
them to a particular restaurant? To take them to a sporting event, or a parade,
or for a hike in a park? We see no meaningful way to distinguish between these
examples and the example at issue here, namely, Father’s desire to sign the
children up for golf and/or tennis lessons when they are with him, at his cost,
causing no interference whatsoever to Mother or her time with them.
[13] There is no suggestion that the activities in which the children have participated
when with Father are inappropriate or harmful in any way. He has taken them
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to play tennis and golf, which are perfectly appropriate and beneficial activities
for children. So long as that is the case, it is inappropriate to require that
Mother have the right to refuse the way in which the children spend their time
when they are with Father. Therefore, while we affirm the portion of the order
naming Mother as the children’s legal custodian, we reverse the portion of the
order requiring that Father obtain her permission for the children’s
extracurricular activities when they are with him.
[14] We strongly encourage these parents to put aside their own issues and learn to
work together for the sake of their children. If Mother and Father are able to
agree on the fundamental issues such as education and religion, they should
find a way to agree about the much smaller issue of extracurricular activities.
[15] The judgment of the trial court is affirmed in part and reversed in part.
Barnes, J., and Crone, J., concur.
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