Karen Ellen Fielder v. Brandon Eric Fielder (mem.dec.) ( 2017 )


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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                       May 25 2017, 10:25 am
    court except for the purpose of establishing
    the defense of res judicata, collateral                              CLERK
    Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                     and Tax Court
    ATTORNEY FOR APPELLANT
    Heather M. Shumaker
    Schuckit & Associates, PC
    Zionsville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Karen Ellen Fielder,                                    May 25, 2017
    Appellant-Petitioner,                                   Court of Appeals Case No. 49A02-
    1609-DR-2038
    v.                                              Appeal from the Marion Superior
    Court
    Brandon Eric Fielder,                                   The Honorable James B. Osborn,
    Appellee-Respondent.                                    Judge
    Trial Court Cause No. 49D04-
    1104-DR-12772
    Riley, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017      Page 1 of 11
    STATEMENT OF THE CASE
    [1]   Appellant-Petitioner, Karen Fielder (Mother), appeals the trial court’s
    modification of her parenting time with the minor children.
    [2]   We affirm.
    ISSUE
    [3]   Mother presents us with one issue on appeal, which we restate as: Whether the
    trial court abused its discretion in modifying her parenting time with her minor
    children.
    FACTS AND PROCEDURAL HISTORY
    [4]   Mother and Appellee-Respondent, Brandon Fielder (Father), have been
    involved in protracted dissolution of marriage and custody proceedings since
    2011. Upon the dissolution of their marriage, Father received sole legal and
    physical custody of the three minor children, now 10-year-old Ke.F., 13-year-
    old Ky.F, and 17-year-old B.F. Mother was granted supervised parenting time
    and was ordered to pay child support. On April 26, 2016, the trial court
    modified Mother’s parenting time schedule, granting her unsupervised visits
    with Ke.F. and Ky.F. for five hours every other weekend. On May 19, 2016,
    Mother filed a motion to modify custody, requesting sole physical custody of
    the minor children.
    [5]   On August 15, 2016, the trial court conducted a hearing on Mother’s motion.
    During the hearing, the children’s Guardian ad Litem, David Reed (GAL
    Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 2 of 11
    Reed), testified as to his recommendations with respect to Mother’s motion.
    GAL Reed recommended leaving sole physical and legal custody with Father
    because the “children are doing very well in his care, and they are succeeding.”
    (Transcript p. 159). Expressing his surprise that the unsupervised visits with
    Mother were going well, he advised that Mother’s unsupervised parenting time
    should be increased to gradually become more in line with the Indiana
    Parenting Time Guidelines (the Guidelines), with the exception of overnight
    visitation. To ensure the children’s safety, GAL Reed suggested that the
    children have access to a phone to contact Father at any time they feel unsafe or
    uncomfortable during the visit. Recognizing that “there’s a positive movement
    with regard to the relationship [Mother] has with her children,” GAL Reed
    clarified that “extending [her] time actually makes me nervous as to how they
    might do going forward. I hope they continue to do well.” (Tr. pp. 161-62,
    165).
    [6]   The trial court extensively questioned GAL Reed as to why he did not
    recommend overnight visitation in accordance with the Guidelines. In
    response, GAL Reed recalled certain incidents with Mother which occurred
    prior to the previous modification, and which had been taken into account
    when the previous order had granted Mother limited unsupervised visitation.
    GAL Reed mentioned that after the limited unsupervised visitation took effect,
    Ke.F. and Ky.F. “began to tell me that they are reluctant to spend the night
    with their [M]other.” (Tr. p. 164). “When I ask them what they want to see
    happen, they have both [] expressed the desire to spend more time with their
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    [M]other, [], which I think is healthy, but they have both voiced reservations
    about spending the night with her.” (Tr. pp. 164-65). GAL Reed tempered his
    remarks and indicated that he could envision a time when overnight visits
    would be appropriate
    if things continue to go well with them having extended time
    together with no issues noted and the children feeling
    comfortable and feeling safe, [], they have access to a phone; they
    can contact [Father] if they feel uncomfortable or unsafe, then I
    could consider at some point down the road thinking that would
    be a reasonable thing to do.
    (Tr. p. 165).
    [7]   Likewise, Father expressed his surprise that the five-hour unsupervised visits
    were going well: “[D]uring those five hour visits during the day, [] she keeps
    going from event to event, . . ., keeping the kids occupied during the entire time
    with the things that they’re doing, which makes it a little easier as opposed to
    just home time.” (Tr. p. 174). In line with GAL Reed’s recommendation,
    Father opined that “extending the visits would still be appropriate at this time
    just because [the children] have not expressed any deep concerns to me. [M]y
    concern is that still if they go into much longer or overnight during those down
    times when kids aren’t doing something every minute that is that where it could
    get more stressful on her. That’s my only concern.” (Tr. p. 175).
    [8]   The following day, on August 16, 2016, the trial court issued its Order on
    Mother’s motion for modification of child custody, which concluded, in
    pertinent part:
    Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 4 of 11
    1. Since the last [c]ourt Order modifying parenting time,
    nothing has changed that would support the [c]ourt’s granting
    Mother’s request for full custody. Father will continue to
    have sole physical and legal custody of the children.
    2. Since the last [c]ourt Order modifying parenting time,
    Mother’s unsupervised time with her children has gone
    without incident. Mother has displayed improved coping
    skills and more stability than in the past. Therefore Mother’s
    unsupervised time with [Ky.F. and Ke.F] will be increased to
    twelve hours every other weekend (either Saturday or
    Sunday). The parties may agree as to whether the visits occur
    on Saturday or Sunday and what hours the visits shall take
    place. But in the absence of agreement, the visits shall take
    place on Saturdays from 8:00 a.m. to 8:00 p.m. If conflicts
    arise for these visits on the part of either party, the parties
    shall communicate with one another via text or email as soon
    as the conflict is known and arrange an alternative date for the
    visit. During all times with Mother, the children are allowed
    to have a cellular telephone and are permitted to contact
    Father if at any point they feel uncomfortable or unsafe. In
    that event, Father may immediately retrieve the children.
    3. Mother and Father are ordered to actively communicate
    through the communication book. If the need for more
    immediate communication arises, Mother and Father may
    either text or email each other to address the immediate
    concern.
    4. The [c]ourt reminds both Mother and Father that neither
    should speak negatively about the other parent in the presence
    of or within earshot of the children.
    5. The GAL is directed to conduct a one-month and three-
    month review with the children to determine how the
    Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 5 of 11
    visitations are proceeding and to take any other action the
    GAL may deem appropriate.
    ****
    7. All other prior [c]ourt Orders remain in effect.
    (Appellant’s App. Conf. Vol., pp. 50-51). 1
    [9]    Mother now appeals. Additional facts will be provided as necessary.
    DISCUSSION AND DECISION
    [10]   No longer contesting the denial of a change in custody, Mother focuses her
    argument on the trial court’s change in parenting time. Specifically, she
    contends that the modification of her parenting time in deviation of the
    minimum recommendations under the Guidelines required the trial court to
    make a finding that the visitation would endanger her children’s physical health
    or significantly impair their emotional development. Because the trial court
    failed to make that explicit finding, Mother claims that she is entitled to the
    parenting time in accordance with the Guidelines.
    1
    We recognize that Mother excluded the trial court’s Order from public access pursuant to Appellate Rule
    9(G), and therefore, we will endeavor to maintain confidentiality on appeal by omitting certain names and
    facts. But an appellate judicial opinion that both decides the case and articulates the law requires
    consideration of the underlying facts. Thus, we have included a number of facts derived from the
    confidential record because we deem such information essential to the resolution of the litigation and
    appropriate to further the establishment of precedent and the development of the law. See Drake v. Dickey, 
    2 N.E.3d 30
    , 32 (Ind. Ct. App. 2013), aff’d, 
    12 N.E.3d 875
    (Ind. 2014).
    Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017               Page 6 of 11
    [11]   “In all visitation controversies, courts are required to give foremost
    consideration to the best interests of the child.” Hatmaker v. Hatmaker, 
    998 N.E.2d 758
    , 760 (Ind. Ct. App. 2013) (quoting Marlow v. Marlow, 
    702 N.E.2d 733
    , 735 (Ind. Ct. App. 1998), trans, denied), trans. denied. We review parenting
    time decisions for an abuse of discretion. 
    Hatmaker, 998 N.E.2d at 761
    . A trial
    court abuses its discretion when its decision is clearly against the logic and
    effect of the facts and circumstances before the court or if the court has
    misinterpreted the law. 
    Id. It appears
    that in the instant case, the trial court
    entered sua sponte findings. In such a situation, the specific factual findings
    control only the issues that they cover, and a general judgment standard applies
    to issues upon which there are no findings. Stone v. Stone, 
    991 N.E.2d 992
    , 998
    (Ind. Ct. App. 2013), aff’d on reh’g, 
    4 N.E.3d 666
    (Ind. Ct. App. 2013). “It is not
    necessary that each and every finding be correct, and even if one or more
    findings are clearly erroneous, we may affirm the judgment if it is supported by
    other findings or otherwise supported by the record.” 
    Id. We may
    affirm a
    general judgment with sua sponte findings on any legal theory supported by the
    evidence. 
    Id. In reviewing
    the accuracy of the findings, we first consider
    whether the evidence supports them. 
    Id. We then
    consider whether the
    findings support the judgment. 
    Id. “We will
    disregard a finding only if it is
    clearly erroneous, which means the record contains no facts to support it either
    directly or by inference.” 
    Id. [12] A
    judgment also is clearly erroneous if it relies on an incorrect legal standard,
    and we will not defer to a trial court’s legal conclusions. 
    Id. at 998-99.
    We give
    Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 7 of 11
    due regard to the trial court’s ability to assess the credibility of witnesses and
    will not reweigh the evidence, and we must consider only the evidence most
    favorable to the judgment along with all reasonable inferences drawn in favor of
    the judgments. 
    Id. at 999.
    Additionally, we “give considerable deference to the
    findings of the trial court in family law matters.” MacLafferty v. MacLafferty, 
    829 N.E.2d 938
    , 940 (Ind. 2005). This deference is a reflection that the trial court is
    in the best position to judge the facts, ascertain family dynamics, and judge
    witness credibility. 
    Id. “But to
    the extent a ruling is based on an error of law or
    is not supported by the evidence, it is reversible, and the trial court has no
    discretion to reach the wrong result.” 
    Id. at 941.
    [13]   Initially we note that Father did not file an appellate brief. When the appellee
    has failed to submit an answer brief we need not undertake the burden of
    developing an argument on the appellee’s behalf. Trinity Homes, LLC v. Fang,
    
    848 N.E.2d 1065
    , 1068 (Ind. 2006). Rather, we will reverse the trial court’s
    judgment if the appellant’s brief presents a case of prima facie error. 
    Id. Prima facie
    error in this context is defined as, “at first sight, on first appearance, or on
    the face of it.” 
    Id. Where an
    appellant is unable to meet this burden, we will
    affirm. 
    Id. [14] Restriction
    or denial of parenting time as recommended under the Guidelines is
    governed by Indiana Code Section 31-17-4-2, which provides as follows:
    The court may modify an order granting or denying parenting
    time rights whenever modification would serve in the best
    interests of the child. However, the court shall not restrict a
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    parent’s parenting time rights unless the court finds that the
    parenting time might endanger the child’s physical health or
    significantly impair the child’s emotional development.
    Indiana recognizes that the right of a noncustodial parent to spend time with his
    or her children is a “precious privilege.” Duncan v. Duncan, 
    843 N.E.2d 966
    ,
    969 (Ind. Ct. App. 2006), trans. denied. Thus, although a court may modify a
    parenting time order when the modification would serve the interest of the child
    or children, a parent’s parenting time rights shall not be restricted unless the
    court finds that the parenting time might endanger the child’s physical health or
    significantly impair the child’s emotional development. 
    Id. Even though
    the
    statute uses the word “might,” we have previously interpreted this language to
    mean that a court may not restrict parenting time unless that parenting time
    “would” endanger the child’s physical health or emotional development. D.B.
    v. M.B.V., 
    913 N.E.2d 1271
    , 1274 (Ind. Ct. App. 2009), reh’g denied. A parent
    who seeks to restrict a parent’s parenting time rights bears the burden of
    presenting evidence justifying such a restriction. 
    Id. [15] While
    we agree with Mother that the trial court did not explicitly find that
    parenting time in accordance with the Guidelines would endanger the
    children’s physical health or significantly impair the children’s emotional
    development, the trial court concluded so implicitly. See, e.g., J.M. v. N.M., 
    844 N.E.2d 590
    , 600 (Ind. Ct. App. 2006) (Although no express finding was made,
    evidence was presented to support the conclusion that unsupervised parenting
    time would significantly impair the child’s emotional development.), trans.
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    denied. In its findings, the trial court articulated a concern for the children’s
    safety by ordering that “[d]uring all times with Mother, the children are allowed
    to have a cellular telephone and are permitted to contact Father if at any point
    they feel uncomfortable or unsafe.” (Appellant’s Conf. Vol., p. 51).
    [16]   Moreover, the evidence presented at the hearing supports a similar conclusion.
    Even though both GAL Reed and Father expressed surprise at the relative
    success of the current unsupervised visitations, both articulated strong
    reservations to immediately increase the unsupervised visitation to the
    Guidelines’ recommended parenting time. While agreeing that Mother should
    receive an increase in visitation time with the children, based on past
    experience, they both advised to gradually increase the parenting time so as to
    secure the safety of the children and not make these visits too “stressful” for
    Mother. (Tr. p. 175). Even the children voiced a hesitation, through GAL
    Reed’s testimony, to overnight visitation with Mother at this time.
    [17]   While we recognize that the current unsupervised visitation schedule still falls
    shy of the recommended parenting time under the Guidelines, it does represent
    an improvement on the previous order and provides Mother with immediate
    opportunities for more favorable visitation and a pathway to eventually secure
    parenting time in accordance with the Guidelines. Overall, we conclude that
    the trial court took a thoughtful approach to the visitation issue and struck a
    balance that adequately addresses the concerns of all, while recognizing the
    “positive movement” of Mother’s relationship with the children, and by
    providing Mother with opportunities for more rewarding parenting time,
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    immediately and in the future. (Tr. p. 162). As the wellbeing of the children is
    always our foremost concern, we affirm the trial court that at this time visitation
    pursuant to the Guidelines between Mother and the children would endanger
    their physical health or significantly impair their emotional development. See
    I.C. § 31-17-4-2. Therefore, we conclude that Mother failed to establish an
    abuse of discretion by the trial court.
    CONCLUSION
    [18]   Based on the foregoing, we hold that the trial court did not abuse its discretion
    when it modified Mother’s parenting time.
    [19]   Affirmed.
    [20]   May, J. and Bradford, J. concur
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