Matthew Purnell v. Kayla Purnell ( 2019 )

FILED
Jul 11 2019, 8:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dylan A. Vigh Amanda R. Blystone
Indianapolis, Indiana Austin T. Robbins
Broyles Kight & Ricafort, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Purnell, July 11, 2019
Appellant-Respondent, Court of Appeals Case No.
19A-JP-162
v. Appeal from the Johnson Circuit
Court
Kayla Purnell, The Honorable K. Mark Loyd,
Appellee-Petitioner. Judge
The Honorable Andrew Roesener,
Magistrate
Trial Court Cause No.
41C01-1702-JP-21
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, Matthew Purnell (Father), appeals the trial court’s
Order, awarding Appellee-Petitioner, Kayla Purnell (Mother), sole legal
custody and primary physical custody of their minor child, S.P. (Child).
[2] We affirm.
ISSUE
[3] Father presents one issue on appeal, which we restate as: Whether the trial
court abused its discretion by considering Father’s active-duty status in the
United States Air Force when it awarded sole legal and primary physical
custody to Mother.
FACTS AND PROCEDURAL HISTORY
[4] Father and Mother married on December 15, 2014. At the time, Father was an
active member of the United States Air Force stationed in California. After the
wedding, in February 2015, Mother relocated from Indiana to California and
the couple resided in an on-base residence. Approximately fourteen months
later, in April 2016, Mother moved back to Indiana to live with her mother
(Grandmother) due to purported allegations of Father’s infidelity. When she
left California, Mother was pregnant and, approximately two weeks after
returning to Indiana, the Child was born on April 20, 2016. There is no dispute
that Father is the legal and biological father of the Child.
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[5] Mother has been the primary caregiver for the Child since his birth and has
effectuated parenting time opportunities for Father when Father is in Indiana.
Six weeks after his birth, Father visited the Child for the first time. In June of
2016, Father travelled to Indiana with the intent to remove the Child from
Mother’s care and to return with him to California. On his way to Indiana,
Father stopped at the home of his father and stepmother in New Mexico to
spend the night. During this visit, Father informed them of his plan to take the
Child as he did not believe Mother was fit to be the Child’s primary caretaker.
Father’s stepmother contacted Grandmother and informed her of Father’s
plans. Mother was able to successfully thwart Father’s plan while still allowing
him parenting time when he was in Indiana. Father returned to California
without the Child.
[6] Mother has been treated for mental health issues since she was approximately
eleven years old. When she was thirteen years old, Mother spent three weeks in
inpatient hospital care for suicidal tendencies. Another suicide attempt at age
fifteen was followed by a month of inpatient care. Mother has been diagnosed
with bipolar disorder Type I, anxiety disorder not otherwise specified, and
ADHD. Bipolar disorder Type I is characterized by “periods where [Mother’s]
mood can be manic and then periods where [her] mood can be depressed.”
(Transcript p. 11). Every two to three months, Mother has an appointment
with Susan Fay, an advanced nurse practitioner and clinical specialist (Nurse
Fay), who works with Mother on medical management and assisted her to
overcome postpartum depression after the birth of the Child. Overall, Mother
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is compliant with the proposed course of treatment and Nurse Fay has no
concerns that Mother can appropriately care for the Child.
[7] In addition to Nurse Fay, Mother is under the care of Diane Burks (Burks), a
licensed clinical social worker, who has been working with Mother since she
was eleven years old. Burks has seen positive changes in Mother since the start
of the treatment plan. Mother is “more rational, much more grounded, [with]
fewer manic episodes.” (Tr. p. 45). When Mother gets manic, “she talks real
fast. She gets judgmental, she gets more opinionated. She’ll get stuck on
something and be on a tangent, and she’ll be on a roll about it, and it’s hard to
stop her.” (Tr. p. 48). Mother is “secure in her job, she has plans for the future,
she’s dealing with college.” (Tr. p. 60). “[S]he’s got it all together and knows
where she’s going and how to manage that.” (Tr. p. 60). In the six months
prior to the hearing, Mother has become “much more confident with herself,
much more closely bonded with [Child], clearly attached. [Child] is very
comfortable with Mother and [G]randmother and goes between them back and
forth easily.” (Tr. p. 60). Because Mother brings Child to the appointments
with Burks, Burks had an opportunity to chart his evolution. She noticed that
Child “regressed” in walking skills after a long visit with Father when he was
about one year old. (Tr. p. 55).
[8] Mother maintains fulltime employment as a security guard and is enrolled in
college courses part-time at Ivy Tech. She and the Child reside with
Grandmother, who aids Mother in her care for the Child. Mother is aware that
“she has her mom to step in and help out and support her when she’s not doing
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as well” and Grandmother remains a stabilizing and supportive presence in
Mother’s life. (Tr. pp. 23-24).
[9] During the proceedings, Father re-enlisted in the Air Force and was re-assigned
to the Cavalier Air Force base in North Dakota where he is the Crew Chief for
the missile warning radar and spacecraft surveillance. Father has no immediate
plans to return to civilian life or Indiana. He lives on-base with his girlfriend
and their eleven-month-old child.
[10] On August 29, 2016, Father filed for a dissolution of marriage in the Superior
Court of Santa Barbara in California (Superior Court). After conducting a
hearing on Father’s petition, the Superior Court ruled that it “has no
jurisdiction to make an initial custody order in this case. The [C]hild’s home
state of Indiana has jurisdiction to make the initial custody orders.”
(Appellant’s App. Conf. Vol. II, p. 48). The Superior Court retained
jurisdiction over all other issues. On February 9, 2017, based on the Superior
Court’s order, Mother filed her verified petition to establish custody, parenting
time, and child support with the trial court in Indiana. One week later, Father
submitted his verified petition for transfer of child custody jurisdiction and for
custody determination. On April 13, 2017, the trial court conducted a hearing
on Father’s petition, which it subsequently denied. The trial court granted
Mother temporary custody of the Child. On March 2, 2018 and November 2,
2018, a final hearing was conducted on the parties’ competing custody requests.
On December 27, 2018, the trial court issued its Findings of Fact and
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Conclusions thereon, awarding sole legal custody and primary physical custody
of the Child to Mother and concluding, in pertinent part:
15. Two (2) predominant issues have emerged from this
litigation and have great bearing [on] the critical decisions of
custody and parenting time.
16. Those issues are as follows:
a. The mental and emotional fitness and stability of both
Mother and Father; and
b. The significant geographical distance between Mother
and Father.
17. Adding another wrinkle of complexity to this matter is the
anticipated transient nature of Father’s future employment with
the Air Force.
****
31. The [c]ourt’s decision today as it relates to physical custody
of the minor [C]hild is predicated in large part on the ongoing
presence of [G]randmother, [Burks], and [Nurse Fay] in the life
of Mother.
32. It is impossible to know with absolute certainty what the
future holds, but Mother should be mindful that the [c]ourt’s
decision today may have been different if Mother was not
residing with [G]randmother and not fully engaged in therapy
and medication management.
33. Future decisions by Mother resulting in changes to these
important factors may be a basis to re-evaluate custody and
parenting time decisions.
34. Father, for his part, offers the minor [C]hild the benefit of a
parent with a stable career; a single family home; and a more
traditional family unit.
****
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36. Father, however, presents countervailing concerns to the
[c]ourt.
37. Chief among those concerns is Father’s plan to abduct the
minor [C]hild from Mother.
38. It must be noted that this plan was not just something that
Father privately contemplated and never acted upon.
39. The opposite is true.
40. Father took actual steps toward the completion of his plan,
including traveling to Indiana to abduct the [C]hild.
41. It is unclear whether, ultimately, Father abandoned his plan
or if it was thwarted by [G]randmother, but, regardless, the
instinct to carry out the plan is of grave concern to the [c]ourt.
42. The inclination of Father to attempt to execute this scheme
suggests to the [c]ourt that Father is afflicted with his own mental
instability.
43. While, to some degree, it is understandable that Father’s
judgment was impaired during this difficult time for him, the
decision to “fix” the problem through a poorly conceived
interstate child abduction scheme demonstrates an appalling lack
of judgment and impaired clarity of thought.
44. Adding to the concern are the statements of [Father’s father]
and [Father’s stepmother] who both stated that Father is
incapable of caring for a young child.
45. To place the minor [C]hild with Father with knowledge of
the aforementioned facts cuts against the best interest of the
[C]hild.
46. In addition, placing the minor [C]hild with Father will all
but ensure that the minor [C]hild’s relationship with Mother and
[G]randmother is irreversibly compromised.
47. Placing the minor [C]hild in Father’s custody will not only
create a significant geographical distance between Mother and
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the minor [C]hild, but it will also ascribe to the minor [C]hild the
real potential for an itinerant life dictated by Father’s changing
military assignments.
(Appellant’s Conf. App. Vol. II, pp. 31-34).
[11] Father now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[12] Father contends that the trial court abused its discretion by awarding sole legal
custody and primary physical custody of the Child to Mother. In an initial
custody determination, both parents are presumed equally entitled to custody,
and the “[t]he court shall determine custody and enter a custody order in
accordance with the best interest of the child.” Ind. Code § 31-17-2-8. There is
no presumption favoring either parent. I.C. § 31-17-2-8. In determining the
child’s best interest, the trial court must consider all relevant factors, including
specifically 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 siblings; 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.
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(8) Evidence that the child has been cared for by a de facto
custodian.
I.C. § 31-17-2-8. The trial court’s decisions on child custody are reviewed only
for an abuse of discretion. Sabo v. Sabo, 858 N.E.2d 1064, 1068 (Ind. Ct. App.
2006).
[13] There is a well-established preference in Indiana “‘for granting latitude and
deference to our trial judges in family law matters.’” Steele-Giri v. Steele, 51
N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622 N.E.2d
178, 178 (Ind. 1993)). In this regard, our supreme court has explained that:
Appellate deference to the determinations of our trial court
judges, especially in domestic relations matters, is warranted
because of their unique, direct interactions with the parties face-
to-face, often over an extended period of time. Thus enabled to
assess 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.
Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). It is not enough on appeal that the
evidence might support some other conclusion; rather, the evidence must
positively require the result sought by the appellant. D.C. v. J.A.C., 977 N.E.2d
951, 957 (Ind. 2012). Accordingly, we will not substitute our own judgment if
any evidence or legitimate inferences support the trial court’s judgment. Id.
[14] At Mother’s request, the trial court included specific findings of fact and
conclusions thereon pursuant to Indiana Trial Rule 52. When a trial court
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enters findings of fact and conclusions of law pursuant to Indiana Trial Rule 52,
we apply the following 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). The trial court’s findings
and conclusions will be set aside only if they are clearly erroneous, that is, if the
record contains no facts or inferences supporting them. Id. A judgment is
clearly erroneous when a review of the record leaves us with a firm conviction
that a mistake has been made. Id. We neither reweigh the evidence or assess
the credibility of the witnesses, but consider only the evidence most favorable to
the judgment. Id. We review conclusions of law de novo. Id.
[15] In the present case, the trial court granted initial sole legal and primary physical
custody of the Child to Mother. In making this custody determination, the trial
court relied on several of the statutory factors listed in I.C. § 31-17-2-8, with its
Order comprising of ninety-five findings of fact and forty-seven conclusions of
law. On appeal, Father concedes that the trial court’s findings are supported by
the evidence; rather, his sole contention revolves around the trial court’s
consideration of his active-duty status in the United States Air Force. 1
1
Mother contends that Father waived his argument because he never raised the application of Indiana Code
section 31-17-2-21.3 before the trial court. However, we have long held that “[w]hile failure to cite the
controlling statute cannot be said to be sound trial practice, it does not constitute waiver of a contention
within the factual framework of the litigation[.]” Danes v. Automobile Underwriters, Inc., 307 N.E.2d 902, 905-
06 (Ind. Ct. App. 1974). Father’s active duty status was evident and was repeatedly acknowledged by the
trial court. Accordingly, Father did not waive his argument on appeal. See, e.g., In re the Adoption of S.O., 56
N.E.3d 77, 82 (Ind. Ct. App. 2016) (a party may not present an argument or issue to an appellate court unless
the party raised that argument or issue to the trial court).
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Specifically, Father asserts that the trial court violated Indiana Code section 31-
17-2-21.3(a) by relying on “Father’s active-duty service, and the future
assignments it contemplated, as a determining factor in awarding custody to
Mother.” (Appellant’s Br. p. 17). Indiana Code section 31-17-2-21.3 provides
that
(a) A court may not consider a parent’s absence or relocation due
to active duty service as a factor in determining custody or
permanently modifying a child custody order.
(b) If a court temporarily modifies a custody order due to a
parent’s active duty service, the order temporarily modifying the
custody order terminates automatically not later than ten (10)
days after the date the parent notifies the temporary custodian in
writing that the parent has returned from active duty service.
This subsection does not prevent a court from modifying a child
custody order as provided under this article after a parent returns
from active duty service.
“Active duty” is defined as full-time service in the armed forces of the United
States or the National Guard for a period that exceeds thirty consecutive days
in a calendar year. I.C. § 31-9-2-0.8.
[16] In re C.S., 964 N.E.2d 879, 881 (Ind. Ct. App. 2012), trans. denied, a mother
chose to reactivate her active duty service by taking a job as a career counselor,
apparently indefinitely, in Kentucky because it provided better pay and benefits
than the private sector. We held that because the mother testified that she
would remain in Kentucky for “some time to come,” her location would only
be changed upon her request, and she could not be deployed to a combat zone,
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the mother’s service did not demonstrate the impermanency contemplated by
the statute. Id. at 885. However, In re C.S. was decided in the context of a
custody modification with the ‘impermanency’ language alluding to the return
of the parent from active duty service as contemplated by the application of
section (b) of the statute. In the most current pronouncement Hazelett v.
Hazelett, 119 N.E.3d 153 (Ind. Ct. App. 2019), we reversed the trial court’s
initial custody determination in favor of mother, as it appeared “that the trial
court did, in fact, consider [f]ather’s absence due to his military service as a
factor in awarding [m]other sole legal custody” in violation of section (a) of the
statute. Id. at 161. Accordingly, “in light of the trial court’s insufficient
findings and the fact that the court apparently considered [f]ather’s active duty
service in its initial custody determination,” we remanded for a new custody
determination. Id.
[17] Father testified that he is the Crew Chief for the missile warning radar and
spacecraft surveillance at the Cavalier Air Force base in North Dakota. Unlike
In re C.S., Father’s reassignments are uncertain and not voluntary. He cannot
choose his location and could be ordered to go where needed. As he is serving
full-time in the armed forces of the United States, he falls within the province of
I.C. § 31-17-2-21.3(a). Although Mother proposes to limit the application of the
statute to an “active duty combatant who has been deployed to another country
for a limited period of time,” no such language is included in section (a) of the
statute, nor are we persuaded to constrain the statute’s interpretation as Mother
suggests.
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[18] Our review of the trial court’s Order indicates that the trial court considered
Father’s active duty service in its determination of the Child’s initial custody.
Emphasizing the “anticipated transient nature of Father’s future employment
with the Air Force,” the trial court granted Mother custody, as awarding
custody of the Child to Father would result in “an itinerant life dictated by
Father’s changing military assignments.” (Appellant’s App. Conf. Vol. II, p.
34).
[19] Nevertheless, unlike Hazelett, where we remanded in part due to the trial court’s
insufficient findings, in the present case, the trial court entered extensive
findings of fact and conclusions thereon. “[I]t 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 is otherwise
supported by the record.” Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App.
2013). Although the trial court considered Mother’s mental health struggles
and cautioned her to be compliant with her medical providers, the trial court
was impressed by the strides Mother has made since returning to Indiana.
Mother has built an extensive support network and is currently gainfully
employed with a realistic plan for the future. She continues to reside with
Grandmother, and together they “have collaborated to create a safe and loving
home environment for the Child.” (Appellant’s Conf. App. Vol. II, p. 32).
Even when Mother became unstable, she “never displayed physically violent
tendencies, suffered from visual or auditory hallucinations; or abused drugs or
alcohol.” (Appellant’s Conf. App. Vol. II, p. 32).
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[20] The Child has resided in Indiana for the entirety of his life. He is bonded with
Mother and Grandmother. Father’s first visit took place when the Child was
six weeks old and he has exercised parental time approximately eight to nine
times since the Child’s birth on April 20, 2016. Despite Father’s stable
employment prospects and presence of a traditional family unit, Burks
explained that awarding custody to Father would be “[a]bsolutely [the] worst
thing that could happen to [Child] because it would violate his attachment, his
bond with [Mother] and grandmother. And to take that trust away from him
just wipes out the whole bottom of the security of his development.” (Tr. p.
65). Chief among the trial court’s concerns with respect to Father was Father’s
thwarted plan to abduct his own Child. Referencing the evidence that the plan
was not merely privately contemplated, the trial court viewed the “poorly
conceived interstate child abduction scheme” as a demonstration of “an
appalling lack of judgment and impaired clarity of thought.” (Appellant’s Conf.
App. Vol. II, p. 34).
[21] Mindful of our deference to the trial court in custody cases and without
acknowledging the trial court’s conclusions with respect to Father’s active duty
status, we find that, in light of the totality of the remaining trial court’s findings
and conclusions, sufficient evidence exists to support the trial court’s grant of
sole legal custody and primary physical custody of the Child to Mother.
CONCLUSIONS
[22] Based on the foregoing, we hold that although the trial court abused its
discretion in considering Father’s active duty status in the United States Air
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Force, the remaining findings of fact and conclusions thereon are sufficient to
support the grant of sole legal custody and primary physical custody of the
Child to Mother.
[23] Affirmed.
[24] Bailey, J. and Pyle, J. concur
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