In re the Marriage of: Chad M. Heimann v. Crystal R. Heimann (mem. dec.) ( 2019 )


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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                                   Oct 23 2019, 9:03 am
    court except for the purpose of establishing                                      CLERK
    the defense of res judicata, collateral                                     Indiana Supreme Court
    Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEYS FOR APPELLANT
    Michael H. Michmerhuizen
    Casie J. Towsley
    Barrett McNagny LLP
    Fort Wayne, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In re the Marriage of:                                  October 23, 2019
    Chad M. Heimann,                                        Court of Appeals Case No.
    19A-DC-644
    Appellant-Respondent,
    Appeal from the Adams Circuit
    v.                                              Court
    The Honorable Chad Kukelhan,
    Crystal R. Heimann,                                     Judge
    Trial Court Cause No.
    Appellee-Petitioner.
    01C01-1810-DC-48
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019                 Page 1 of 12
    Case Summary and Issue
    [1]   Crystal Heimann (“Mother”) and Chad Heimann (“Father”) were married in
    2001, and Father filed for divorce in late 2018. Mother and Father adopted two
    daughters, K.H., and T.H. (“Children”).1 After a final hearing, the trial court
    awarded sole legal and primary physical custody to Mother and ordered Father
    to have supervised parenting time every week. Father appeals, raising one issue
    for our review which we restate as: whether the trial court abused its discretion
    by ordering Father to have supervised parenting time absent evidence
    demonstrating how parenting time would endanger Children’s physical health
    or emotionally impair Children. Concluding the trial court abused its discretion,
    we reverse and remand with instructions.
    Facts and Procedural History
    [2]   The parties were married on June 28, 2001. They adopted Children, and the
    family lived together in the same home. In September 2018, Mother and Father
    separated and Mother and Children moved out of the marital residence, while
    Father remained in the home. On October 1, 2018, Father filed a Petition for
    Dissolution of Marriage, claiming an irretrievable breakdown of the marriage.
    1
    Mother and Father also are caring for a foster child. He was not subject to the instant proceedings. See
    Transcript of Evidence, Volume I at 40.
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019                   Page 2 of 12
    [3]   The trial court held a provisional hearing, and Father requested joint legal
    custody of Children with Mother having temporary primary physical custody of
    Children. Concerning parenting time, Father proposed he be allowed to have
    the Children overnight from 3:00 p.m. on Saturday until 6:00 p.m. on Sunday.
    See Tr., Vol. I at 6. Mother disagreed with Father’s parenting-time request,
    stating that Father has “mental health issues that need to be worked out first[,]”
    
    id. at 18;
    that “[h]e’s become very abusive over the last several months[,]” id.;
    that “[h]e yells[,] hits people[,] [and] throws things[,]” 
    id. at 19;
    and that “he. . .
    [is] very hostile and . . . full of anger and rage[,]” 
    id. On November
    15, 2018,
    the trial court granted Mother sole legal and primary physical custody of
    Children and entered its Provisional Order directing Father’s parenting time to
    be
    [e]very other weekend [on] Saturday for two hours . . . under
    therapeutic supervision by a licensed third party agency.
    Parenting time is restricted for [F]ather as evidence indicates he
    poses a threat to the mental and physical well[-]being of
    [C]hildren[.]
    Appellant’s Appendix, Volume 2 at 11, ¶ 3(a).
    [4]   On January 9, 2019, the trial court held a final hearing on the petition for
    dissolution during which Father requested that the trial court grant him primary
    physical custody of Children and joint legal custody with Mother. However,
    Father testified that he was unable to comply with the trial court’s provisional
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 3 of 12
    order regarding parenting time because he had difficulties finding supervision
    that would comply with the provisional order.2 See Tr., Vol. I at 41-42.
    [5]   Mother again disagreed with Father’s request, insisting that any parenting time
    given should be supervised. She also had concerns for Children if Father was
    granted primary physical custody stating,
    [Father] has been disruptive in the home . . . [by] holding me by
    the throat against the wall demanding I do what [Father] want[s].
    As [for] [C]hildren, . . . [Father] has spanked them; . . . he has
    picked them up and thrown them into their beds. . . . [Father is]
    someone who threatens to commit suicide every other month . . .
    he will sit and say that he hopes he blows his da** brains out and
    we come home and find [Father] in a puddle of blood.
    
    Id. at 60.
    At the conclusion of the final hearing, the trial court took the matter
    under advisement and entered an order that directed the following regarding
    Father’s parenting time: “[Father] shall have supervised visitation with the
    parties’ minor [C]hildren for a period of two (2) hours every Saturday
    commencing January 12, 2019. The supervisor shall be the [Mother’s] brother,
    Chance. The Court further orders the paternal grandparents may be present at
    the visitations.” Appellant’s App., Vol. 2 at 15. The trial court did not specify a
    date when the supervised parenting time was to end.
    2
    Per the trial court’s provisional order, Father was directed to have parenting time facilitated by a licensed
    therapeutic agency. Father contacted four facilities: three of which were unable to assist him because of either
    scheduling reasons or because he was paying for the service out-of-pocket; and one did not have a licensed
    therapist available for supervision.
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019                    Page 4 of 12
    [6]   On March 6, 2019, the trial court issued its Decree of Dissolution of Marriage,
    finding (among other things) that it is in the best interest of Children that
    Mother have sole legal and primary physical custody of Children with Father
    having supervised parenting time. The trial court ordered Father to continue to
    have supervised parenting time:
    [Father] should receive parenting time in accordance with the
    [c]ourt’s order dated [January 9, 2019]. The restriction on
    parenting time is due to [Father’s] failure to follow the [c]ourt’s
    past order regarding supervised parenting time and [the]
    allegations by [Mother] that [Father] has a violent past. The
    [c]ourt therefore finds that [Father] would be a physical and or
    emotional threat to [Children] and parenting should be
    supervised.
    Appealed Order at 2, ¶ 14. Father now appeals.
    Discussion and Decision
    I. Standard of Review
    [7]   Initially, we note that Mother did not file an Appellee’s Brief and therefore, “we
    need not undertake the burden of developing an argument on [her] behalf.”
    EBF Partners, LLC v. Novabella, Inc., 
    96 N.E.3d 87
    , 91 (Ind. Ct. App. 2018).
    Rather, we will reverse the trial court’s judgment if Father presents a case of
    prima facie error. 
    Id. Prima facie
    error is defined as, “at first sight, on first
    appearance, or on the face of it.” 
    Id. Court of
    Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 5 of 12
    [8]   Here, the trial court entered findings of fact and conclusions thereon. We
    therefore apply a two-tiered standard of review: whether the evidence supports
    the findings and whether the findings support the judgment. Tompa v. Tompa,
    
    867 N.E.2d 158
    , 163 (Ind. Ct. App. 2007). When reviewing judgments with
    findings and conclusions, we “shall not set aside the findings or judgment
    unless clearly erroneous, and due regard shall be given to the opportunity of the
    trial court to judge the credibility of the witnesses.” Best v. Best, 
    941 N.E.2d 499
    ,
    502 (Ind. 2011) (quoting Ind. Trial Rule 52(A)). A judgment is clearly
    erroneous when the record contains no facts or inferences to support it and after
    evaluating the record, we are firmly convinced a mistake has been made.
    
    Tompa, 867 N.E.2d at 163
    . When we make these determinations, we neither
    reweigh the evidence nor judge the credibility of the witnesses but view the
    evidence most favorable to the judgment. 
    Id. II. Parenting
    Time
    [9]   Father argues that the trial court abused its discretion when it issued its order
    restricting his parenting time to two hours of supervised parenting time per
    week without entering sufficient findings of fact to support its decision that his
    parenting time would endanger Children’s physical or emotional health.
    Specifically, he contends that his parenting time has been restricted based on
    unsupported allegations from Mother. Generally, parenting time decisions are
    committed to the sound discretion of the trial court. In re B.J.N. 
    19 N.E.3d 765
    ,
    769 (Ind. Ct. App. 2014). Therefore, this court will review parenting time
    decisions for an abuse of discretion. Hatmaker v. Hatmaker, 
    998 N.E.2d 758
    , 761
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 6 of 12
    (Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs when the trial
    court’s decision is clearly against the logic and effect of the facts and
    circumstances before the court or if the court misinterpreted the law. 
    Id. [10] In
    all parenting time controversies, courts must give foremost consideration to
    the best interests of the children. In re Paternity of C.H., 
    936 N.E.2d 1270
    , 1273
    (Ind. Ct. App. 2010), trans. denied. 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). For this reason,
    [e]xtraordinary circumstances must exist to deny parenting time
    to a parent, which necessarily denies the same to the child[,]
    [and] [i]f 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).
    [11]   Restriction of parenting time is governed by Indiana Code section 31-17-4-1(a),
    which provides, “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.” “Even
    though the statute uses the word ‘might,’ this Court has previously interpreted
    the language to mean that a court may not restrict parenting time unless that
    parenting time ‘would’ endanger the child’s physical health or emotional
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 7 of 12
    development[, and] an order for supervision constitutes such a restriction.”
    
    Hatmaker, 998 N.E.2d at 761
    . A party who seeks to restrict a parent’s visitation
    rights bears the burden of presenting evidence justifying such a restriction. 
    Id. The burden
    of proof is by a preponderance of the evidence. 
    Id. [12] The
    trial court in the present case restricted Father’s parenting time to two
    hours of supervised time per week with Mother’s brother, Chance, serving as
    the supervisor. The trial court specifically found in its order that Father’s
    parenting time should be supervised and limited to two hours every week
    because Mother “alleg[ed] . . . that [Father] has a violent past[,]” and, therefore,
    Father would be a physical and or emotional threat to the [C]hildren. Appealed
    Order at 2, ¶ 14. We find, however, that the evidence in the record is
    insufficient to support such a finding.
    [13]   Here, Mother testified to a number of unsupported allegations of abuse by
    Father. Among other things, she alleged that Father is full of anger and rage
    and has become very abusive. However, she did not provide any police reports,
    DCS reports, therapist reports, or reports by a guardian ad litem to demonstrate
    that parenting time between Father and the Children would not be in the
    Children’s best interests. The only evidence before the trial court regarding any
    endangerment to Children was Mother’s self-serving testimony. Additionally,
    she did not present any evidence of Children being concerned with their well-
    being while in the presence of Father. Instead, she only offered her testimony
    and did not provide additional testimony from other sources that could
    corroborate her contention that Father has a violent past.
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 8 of 12
    [14]   Although Mother testified to Father’s abusive nature, she, nevertheless, allowed
    him to have parenting time with Children absent any supervision, which
    contradicts her assertion that she has concerns for Children’s safety with Father.
    Moreover, Father’s Mother, Cindy, and Mother’s brother, Chance, both
    testified that Father is not a danger to Children; they never saw Father abuse
    Children; and they believed Father to be a good parent. See Tr., Vol. II at 53-56.
    Based on the record, we conclude that Mother’s evidence does not support the
    trial court’s finding that Father is a physical or emotional threat to Children, see
    
    Tompa, 867 N.E.2d at 163
    , and the finding does not support the restriction that
    was placed on Father’s parenting time. Therefore, the trial court abused its
    discretion restricting Father’s parenting time to two hours per week.
    [15]   Father also argues that the trial court’s finding that he failed to follow the trial
    court’s past order regarding supervised parenting time to support restricting
    Father’s parenting time was “clearly unreasonable and an invalid basis” to
    restrict his parenting time. Appellant’s Brief at 15. He maintains that his failure
    to follow the trial court’s order was beyond his control because he contacted
    four facilities that offered supervised parenting time services, and all four were
    not in compliance either for scheduling reasons, and did not allow self-pay, or
    because the facility did not employ a licensed therapist. See Tr., Vol. 2 at 41. On
    direct examination Father testified to the following:
    [Counsel]: Have you exercised any parenting time since the
    provisional hearing?
    [Father]: I have not.
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 9 of 12
    [Counsel]: Ok. Why not?
    [Father]: I tried all aspects and I was either met with the
    disturbance of they cannot do it on Saturday or they do not allow
    self-pay.
    [Counsel]: Ok. When you say they, who are we talking about?
    [Father]: Um, I contacted SCAN, I contacted Life Source in
    Fort Wayne, I contacted Parks right here in Decatur and Fort
    Wayne.
    [Counsel]: You mean Park Center?
    [Father]: Or Park Center, yes, I'm sorry. . . And I did contact
    Y.S.B. in Portland. That was the only agency that would allow it
    on Saturday and self-pay. The only problem with it is, the lady
    that was going to be doing the visit is not a licensed therapist.
    [Counsel]: Ok. So while it is a supervision facility. . . [s]he didn’t
    feel she had the correct licensing that the Order called for?
    [Father]: No, actually [Mother] brought it to everybody’s
    attention that they were not licensed therapist [sic].
    [Counsel]: Ok.
    [Father]: And she had a problem with it.
    [Counsel]: Ok. So you have made numerous attempts to. . .
    exercise this parenting time[?]
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 10 of 12
    [Father]: Yes, I’ve even worked with D.C.S. and tried to find
    other places and as soon as I turned in the Court Order and they
    saw it was Saturday and self-pay either one of those two reasons
    is the reasons why I got rejected.
    
    Id. at 41-42.
    [16]   To the extent that Father does not dispute that he failed to comply with the
    court’s provisional order by not obtaining a licensed therapist to supervise his
    parenting time, these unchallenged facts stand as proven. See In re B.R., 
    875 N.E.2d 369
    , 373 (Ind. Ct. App. 2007) (failure to challenge findings by the trial
    court resulted in waiver off the argument that the findings were clearly
    erroneous), trans. denied. Although he attempts to justify how the trial court
    viewed his failure to comply by demonstrating that he tried to comply;
    however, we view this as a request to reweigh the evidence, which is not the
    province of this court. 
    Tompa, 867 N.E.2d at 163
    .
    [17]   However, we must evaluate whether Father’s failure to comply supports the
    conclusion that Father is a physical or emotional threat to Children.
    Consequently, the trial court did not establish a clear nexus between Father’s
    failure to comply with the provisional order and the physical and emotional
    endangerment of Children. Therefore, the trial court abused its discretion when
    it decided that Father’s violation of its provisional order was a factor in
    restricting his parenting time.
    [18]   The evidence presented simply does not support a finding that Children’s
    physical and emotional health would be endangered by unsupervised parenting
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 11 of 12
    time with Father. For these reasons, we remand to the trial court with
    instructions to enter an order without the restriction. See Walker v. Nelson, 
    911 N.E.2d 124
    , 130 (Ind. Ct. App. 2009).
    Conclusion
    [19]   The evidence in the record does not support the trial court’s finding that
    unsupervised parenting time with Father would be a physical and emotional
    threat to Children and therefore, cannot support the judgment restricting
    Father’s parenting time to two hours per week. We therefore reverse and
    remand to the trial court with instructions to remove the restriction altogether.
    [20]   Reversed and remanded.
    Mathias, J., and Pyle, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 12 of 12