Gillian G. Moorman v. Kyle W. Andrews (mem. dec.) , 114 N.E.3d 859 ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Nov 09 2018, 8:46 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Katherine A. Harmon Andrea L. Ciobanu
Jared S. Sunday Ciobanu Law, PC
Mallor Grodner, LLP Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gillian G. Moorman, November 9, 2018
Appellant-Respondent, Court of Appeals Case No.
18A-JP-1051
v. Appeal from the Grant Superior
Court
Kyle W. Andrews, The Honorable Warren Haas,
Appellee-Petitioner. Judge
Trial Court Cause No.
27D03-1208-JP-431
Mathias, Judge.
[1] Gillian G. Moorman (“Mother”) appeals the Grant Superior Court’s April 12,
2018 order modifying parenting time in favor of Kyle Andrews (“Father”) and
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finding Mother in contempt. Mother presents several issues on appeal, which
we restate as:
I. Whether the trial court erred by finding Mother in contempt of
the 2016 parenting time order in this matter and the Indiana
Parenting Time Guidelines;
II. Whether it was reversible error to hold an in camera interview
of the child; and
III. Whether the trial court erred by basing its decision solely on
the in camera interview.
We affirm.
Facts and Procedural History
[2] T.A. was born to Mother and Father in July of 2011. Throughout T.A.’s life,
Mother and Father have had difficulty co-parenting. When Mother and
Father’s relationship declined shortly after T.A.’s birth, in 2012, Father filed a
Verified Petition to Establish Paternity and Determine Custody, Parenting
Time, and Child Support. Mother and Father initially agreed to joint legal and
physical custody of T.A., and the court entered an agreed order awarding the
same with specific parenting time orders.
[3] After some time, Mother and Father agreed that joint physical and legal
custody was unworkable due to an inability to co-parent. In April of 2015,
Father filed a Petition to Modify Custody. After a two-day hearing, on
September 28, 2016, the trial court agreed that Mother and Father were unable
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communicate effectively and awarded Mother sole custody of T.A. The order
adopted the regular parenting time schedule pursuant to the Indiana Parenting
Time Guidelines (“IPTG”) and directed the parties to have Mother designated
as the representative payee for Child’s Social Security benefits. Father appealed
this order, and a panel of our court affirmed all aspects of the trial court’s order.
Andrews v. Moorman, 86 N.E.3d 239 (Ind. Ct. App. 2017), trans. denied.
[4] On December 22, 2017, Father filed a Motion for Change of Venue from the
Judge as well as the Petition to Modify Parenting Time and Affidavit for
Citation that give rise to the instant appeal.1 In his Affidavit for Citation, Father
alleged that Mother was in violation of the IPTG because she refused to allow
Father to have T.A. when she was unable to care for the child. Father also
alleged that Mother refused to meet at the court-ordered location for exchange.
In separate motions, he requested that T.A. be placed in counseling and that the
court conduct an in camera interview of T.A. in order to assist the court in
making its determination.2
1
Judge Spitzer presided over the two-day hearing held on August 29–30, 2016, regarding Father’s petition to
modify custody. Andrews v. Moorman, 86 N.E.3d 239 (Ind. Ct. App. 2017), trans. denied. On the second day of
this hearing, Judge Spitzer disclosed on the record that he had previously represented Butterworth industries,
owned by Mother’s extended family, approximately ten years prior to these proceedings. Id. While Father’s
attorney indicated no concern at the time of the disclosure, Father argued on appeal that Judge Spitzer
should have recused himself in this matter decided on May 30, 2017. Id. Although a panel of our court found
no error by Judge Spitzer, Father’s motion for change of judge was granted. Id. Special Judge Haas presided
over the proceedings that give rise to the instant appeal.
2
Mother also filed a notice of intent to relocate. The trial court heard the matter in conjunction with Father’s
requests that are currently being considered in this appeal. Father objected to the request to relocate;
however, the trial court granted mother’s request. Neither party appeals this determination, and Mother’s
relocation is not currently at issue.
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[5] The trial court held a hearing on Father’s motion for contempt. In support of
his requests, Father called his previous attorney, T.A.’s paternal grandmother,
and himself. Mother served as her own sole witness.
[6] Father’s previous counsel testified that, based on his observations, Father and
T.A. had a close bond. He had observed Father and T.A. interacting on a
couple of occasions, playing miniature golf and visiting a carnival. Based on his
conversations with Father, he believed that T.A. was Father’s first priority.
[7] T.A.’s paternal grandmother, Susan Stengel (“Stengel”), testified that she
wishes to see T.A. more often but is also hesitant to encroach on Father’s
limited parenting time. She had been able to see T.A. outside of Father’s
parenting time on a couple of occasions and had asked Mother to see T.A.
about three or four times since November 1, 2016. Stengel testified that she had
asked Mother if T.A. could attend a family reunion, and Mother never
responded. Stengel attended grandparent’s day at Mother’s invitation and the
Christmas program at T.A.’s school. She also indicated that she believed T.A.
and Father to be very close. She expressed concern for T.A.’s emotional state.
In Stengel’s opinion, T.A. appeared to be emotional and anxious.
[8] Father testified that Mother had been taking T.A. with her to work at her dental
office instead of allowing him parenting time. He would like to care for T.A.
while she was at work with Mother and “[a]ny available time.” Tr. p. 41. If he
had more time with T.A., he would be agreeable to doing homework with her
and enrolling her in extracurriculars. Father believed that extended family
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members on Mother’s side were receiving time with T.A. that was supposed to
be offered to him. He also testified that, until the last few weeks prior to the
hearing, he had to pick up T.A. from Mother’s workplace instead of the court-
ordered location. On one occasion, Father had observed a man whom he could
not identify dropping T.A. off at her school. On the date of the hearing, Father
was unaware that Mother had sought out any counseling for T.A. Father was
also concerned that T.A. had been tardy to school on nine separate occasions
and that T.A. had been truant on two occasions. Mother and Father had not
discussed the tardies and truancies. Lastly, Father testified that he was
concerned about T.A.’s emotional state.
[9] Mother testified that she works in her step-grandmother’s pediatric dental clinic
and that she has been taking T.A. to work with her after T.A. finishes school.
Mother testified that other employees also bring their children to work and that
Mother watches T.A. while T.A. is at the office with her. She and T.A. stay at
work on the days in question until Mother has to pick up T.A.’s half-brother
around 4:30 or 5:00 p.m. Mother testified that T.A. had been tardy to school
because, although she was dropped off at school on time, T.A. was not going to
class on time. Mother dated someone for a period of time, and he was
continuously in her home, but this man was no longer in the picture at the time
of the hearing. T.A. does occasionally spend overnights with Mother’s parents.
Mother testified that she had been letting T.A. spend time with Mother’s
brother who is fighting cancer. She had researched counselors and made an
appointment with a counselor for T.A., although she had not yet told Father.
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She did not make this appointment until Father filed his petition for counseling.
Mother testified that she has noticed T.A. being anxious but only since Father
filed the petitions at issue. Mother testified that T.A. appeared glossy-eyed and
smelled “dingy” when T.A. arrived home from time with her Father. Tr. p. 86.
[10] After the hearing, the trial court conducted an in camera interview of T.A. After
the hearing and interview, the trial court found Mother in contempt but issued
no sanctions and allowed Mother to purge herself of contempt by following all
orders. The trial court also expanded Father’s parenting time. In addition to
relevant times as prescribed in the IPTG, the trial court extended Father’s mid-
week parenting time to include an overnight and extended Father’s weekend
parenting time, allowing Father to keep T.A. overnight from Sunday evening
through Monday. The trial court also explicitly noted that Father shall have the
Child for “additional parenting time at all times when Mother is working or
attending classes or is otherwise unavailable to care for the Child.” Appellant’s
App. p. 34. Mother filed the instant appeal.
Discussion and Decision
[11] “Indiana has long recognized that the rights of parents to visit their children is a
precious privilege that should be enjoyed by noncustodial parents.” Duncan v.
Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied. “[N]ot only
does a noncustodial parent have a presumed right of parenting time, but the
child has the correlative right to receive parenting time from the noncustodial
parent because it is presumed to be in the child’s best interest.” Perkinson v.
Perkinson, 989 N.E.2d 758, 764 (Ind. 2013). Thus, a noncustodial parent is
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“generally entitled to reasonable visitation rights.” Id. at 762 (quoting Duncan,
843 N.E. 2d at 969).
[12] “A trial court is empowered to specify and enforce the visitation rights of the
non-custodial parent pursuant to the Indiana Code.” Id. Courts are to “give
foremost consideration to the best interests of the child.” Id. at 761 (quoting
Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App. 1998), trans. denied). As
such, parenting time may be modified whenever modification would serve the
best interest of the child. Miller v. Carpenter, 965 N.E.2d 104, 110 (Ind. Ct. App.
2012). Thus, unlike a modification of physical custody, a modification of
parenting time does not require a showing of substantial change. Id.[13] Upon review of a trial court’s determination of a visitation issue, we grant
latitude and deference to our trial courts, reversing only when the trial court
manifestly abuses its discretion. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002);
Lasater v. Lasater, 809 N.E.2d 380, 400 (Ind. Ct. App. 2004). Therefore, on
appeal, it is not enough that the evidence might support some other conclusion,
but it must positively require the conclusion contended for by appellant before
there is a basis for reversal. Kirk, 770 N.E.2d at 307. No abuse of discretion
occurs if there is a rational basis in the record supporting the trial court’s
determination. Lasater, 809 N.E.2d at 400. We will neither reweigh evidence
nor judge the credibility of witnesses. Id. “We will not substitute our own
judgment if any evidence or legitimate inferences support the trial court’s
judgment.” Baxendale v. Raich, 878 N.E.2d 1252, 1257–58 (Ind. 2008).
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I. Contempt
[14] “Whether a person is in contempt of a court order is a matter left to the trial
court’s discretion.” Evans v. Evans, 766 N.E.2d 1240, 1243 (Ind. Ct. App. 2002)
(citing Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999), trans.
denied). We will reverse the trial court’s finding of contempt only where an
abuse of discretion has been shown, which occurs only when the trial court's
decision is against the logic and effect of the facts and circumstances before it.
Id. When we review a contempt order, we neither reweigh the evidence nor
judge the credibility of the witnesses. MacIntosh v. MacIntosh, 749 N.E.2d 626,
629 (Ind. Ct. App. 2001), trans. denied. Mother bears the burden of showing that
her violation was not willful. Williamson v. Creamer, 722 N.E.2d 863, 865 (Ind.
Ct. App. 2000).
[15] In seeking a contempt citation against Mother, Father alleged that Mother
violated the IPTG including the provision entitled “Opportunity for Additional
Parenting Time.” Father also contended that Mother had altered the location
for exchanging T.A. The operative provision of the IPTG states:
3. Opportunity for Additional Parenting Time. When it
becomes necessary that a child be cared for by a person other
than a parent or a responsible household family member, the
parent needing the care shall first offer the other parent the
opportunity for additional parenting time, if providing the child
care by the other parent is practical considering the time available
and the distance between residences. The other parent is under
no obligation to provide the child care. If the other parent elects
to provide this care, it shall be done at no cost and without
affecting child support. The parent exercising additional
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parenting time shall provide the necessary transportation unless
the parties otherwise agree.
IPTG § 1(C)(3). The trial court specifically noted that the contempt finding
“concerns her conduct before she arranged to enroll the Child in Preschool and
then picked her up from Preschool and took the Child to Mother’s place of
employment.” Appellant’s App. p. 33
[16] When T.A.’s preschool ended at 2:30 in the afternoon, Mother would leave
work to pick up T.A. from preschool and take her to Mother’s workplace.
Mother routinely left work in time to pick up her other child, T.A.’s half-
brother from pre-school by 5:00 p.m. Mother had initially planned to enroll
T.A. in day care after her school was over. However, Father had indicated to
Mother that he wanted to take T.A. as additional parenting time during the
time Mother planned to have T.A. in day care. After this exchange between
Mother and Father, Mother changed her plans. She did not enroll T.A. in day
care, but instead picked up T.A. from preschool and took T.A. to work with
Mother. Mother indicated to Father that if he picked up T.A. when she was
done with school, she would “call the cops” on him. Tr. p. 30.
[17] Mother testified that she took T.A. took to work with her and that her usual job
duties included cleaning and filling teeth, talking to patients, completing
paperwork, scheduling appointments, and other front office duties.
Undisputedly, Father was available and willing to care for the child during the
time child was at work with Mother.
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[18] While Mother was able to leave work to pick up T.A. from preschool, she
directed Father to pick up T.A. from Mother’s workplace instead of the court-
ordered location for exchange. Father acquiesced to this demand for some time
in order to see his child. However, in the weeks preceding the hearing, Mother
began meeting him at the court-ordered location for exchange.
[19] Based on the evidence before it, the trial court did not find Mother’s claim that
she was actively parenting during the time T.A. accompanied her to work to be
credible. The trial court also determined that Mother was intentionally acting to
rearrange her schedule to deprive Father of legitimate and beneficial contact
with the Child. We cannot say that the finding of contempt was against the
logic and effect of the circumstances before the trial court. To find otherwise
would require us to reweigh the evidence and judge the credibility of the
witnesses, which we will not do.
II. In Camera Interview
[20] We now turn to Mother’s arguments concerning the in camera interview of T.A.
First, she argues that the trial court lacked statutory authority to conduct the in
camera interview. Second, she argues that the trial court erred by basing its
decision solely on the results of the in camera interview. We disagree with
Mother on both contentions.
[21] Initially, Mother argues that the trial court lacked statutory authority to conduct
the in camera interview of T.A. More specifically, Mother argues that the “the
sole basis for an in-camera interview in a parenting time modification situation .
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. . is to determine if a parent is a danger to a child’s physical or emotional
health, such that parenting time should be restricted.” Appellant’s Br. at 13.
Indiana Code Section 31-17-4-1 permits a trial court to conduct an in camera
interview of a child in chambers within parenting time proceedings. The statute
reads:
(a) 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.
(b) The court may interview the child in chambers to assist the
court in determining the child's perception of whether parenting
time by the noncustodial parent might endanger the child's
physical health or significantly impair the child's emotional
development.
(c) The court may permit counsel to be present at the
interview. If counsel is present:
(1) a record may be made of the interview; and
(2) the interview may be made part of the record for
purposes of appeal.
Ind. Code § 31-17-4-1. Where courts interpret a statute, courts must give words
used in the statute common and ordinary meaning. Spaulding v. Int’l Bakers
Servs. Inc., 550 N.E.2d 307, 309 (Ind. 1990). We do not overemphasize a strict
literal or selective reading of individual words. Id.Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018 Page 11 of 14
[22] Based on a plain reading of the statute, we are not persuaded. We can find no
language in the statute allowing its use solely for the purposes of restriction of
parenting time. The statute plainly and simply provides an in camera interview
as an option to assist trial courts in determining whether parenting time would
physically or emotionally endanger a child. Moreover, Mother’s suggested
reading of the statute would unnecessarily prohibit trial courts from exercising
their discretion in effectuating the best interests of children as facts and
circumstances arise within parenting time matters.
[23] The history of the case in the instant matter shows evidence of concern for
T.A.’s emotional state because of Mother’s and Father’s inability to co-parent
effectively. Even more so, the testimony heard by the trial court immediately
prior to the in camera interview reflected continued concern for T.A.’s emotional
state. The trial court acted within its statutory authority to determine parenting
time as it is suited to the best interests of the child when it conducted the in
camera interview of T.A., and we can find no error.
[24] We now turn to Mother’s argument that the trial court erred by relying solely
on the in camera interview in order to increase Father’s parenting time.3 While
3
Mother also asserts the in camera interview was conducted on the record and outside of the presence of
counsel. Immediately before the interview, the trial court indicated to the parties that only the court reporter
would be present for the interview. No objection to the absence of counsel was presented at that time. Tr p.
147. The trial court noted that a record would be available if there is an appeal and reminded counsel for both
parties of their professional obligations not to share whatever they may hear or read. Counsel for both
Mother and Father indicated their intent to abide by these professional obligations; however, no objection
was made at any point during this discussion. Tr. pp. 147–48. Since no objection to the absence of counsel
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trial courts are afforded latitude in parenting time decisions, a trial court’s
judgment “may not rest primarily upon the results of a private in camera
interview.” McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. Ct. App. 1997),
trans. denied.
[25] In support of her argument that the trial court erred by relying solely on the in
camera interview, Mother relies primarily on McCauley, supra. In McCauley, a
panel of our court determined that the trial court abused its discretion by relying
primarily upon the results of a private in camera interview in order to deny
visitation to a parent, as it could find no evidence in the remainder of the record
supporting the trial court’s decision. Id. Mother asserts that because the trial
court did not appear to be leaning in favor of Father’s requests prior to the in
camera interview, and then after the interview, decided to find Mother in
contempt and increased Father’s parenting time, we can speculate that the trial
court relied solely on the in camera interview. We decline Mother’s invitation to
speculate. Instead, we review the evidence contained in the record.
[26] Upon review, we are able to locate sufficient evidence in the record outside of
the in camera interview that supports the trial court’s findings and conclusions
regarding Father’s parenting time. Mother testified that she took T.A. to work
with her and that her job duties included cleaning and filling teeth, talking to
was presented at the time the interview was conducted, this argument was not properly preserved for appeal.
Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000).
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patients, completing paperwork, scheduling appointments, and other front
office duties. Father testified that he was willing and able to care for T.A.
during the time Mother had her at her place of work. This testimony from
Mother and Father alone is sufficient for the trial court to determine that
Mother’s assertion that she was actively parenting during the time T.A. was at
work with her was not credible. Any further request by Mother for this court to
determine otherwise is a request for us to reweigh the evidence and judge the
credibility of the witnesses, which we will not do.
Conclusion
[27] The trial court did not abuse its discretion by finding Mother in contempt. We
can find no error by the trial court when it conducted an in camera interview of
T.A. Additionally, because sufficient evidence exists in the record outside of the
in camera interview that supports the trial court’s expansion of father’s parenting
time, we conclude that the trial court did not rely solely on the in camera
interview to make its determination and therefore did not err.
[28] Affirmed.
Bailey, J., and Bradford, J., concur.
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