In re the Paternity of Connor Ricciardi Korey Ricciardi v. Christina Feiock (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 14 2017, 8:59 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.
ATTORNEY FOR APPELLANT
Donna Jameson
Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of July 14, 2017
Connor Ricciardi; Court of Appeals Case No.
49A05-1701-JP-61
Korey Ricciardi,
Appeal from the Marion Superior
Appellant-Petitioner, Court
v. The Honorable Timothy Oakes,
Special Judge
Christina Feiock, Trial Court Cause No.
49D02-1003-JP-10744
Appellee-Respondent.
Robb, Judge.
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Case Summary and Issue
[1] Korey Ricciardi (“Father”) appeals the trial court’s denial of his petition to
modify parenting time. He raises one issue, which we restate as whether the
trial court abused its discretion when it denied him a hearing on his petition to
modify parenting time. Concluding the trial court abused its discretion in not
holding a hearing, we reverse and remand.
Facts and Procedural History
[2] Father and Christina Feiock (“Mother”) are the parents of C.R., who was born
in October of 2006. Father obtained sole legal and physical custody of C.R. in
May of 2015. Mother appealed the trial court’s order and we affirmed. See
Feiock v. Ricciardi, No. 49A02-1506-JP-611 (Ind. Ct. App. Feb. 16, 2016). In
June of 2016, Mother filed an emergency motion to modify custody. A hearing
was scheduled on Mother’s emergency motion for October 25, 2016.
[3] On October 20, 2016, Father filed an emergency petition to modify parenting
time, seeking supervised parenting time for Mother. Father alleged, in part,
Mother disagreed with and refused to follow the health treatment plan for C.R.
that Father was pursuing; continued to report Father to the Department of
Child Services after its supervisors deemed her previous allegations
unsubstantiated, thereby subjecting C.R. to numerous investigations; accused
C.R. of being violent and touching himself, and made those accusations in front
of C.R.; and made unilateral decisions detrimental to C.R.’s physical and
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emotional well-being. Father also submitted a proposed order to appear that
would have set a hearing on his petition for the same date and time as the
hearing already scheduled on Mother’s motion. The trial court did not sign the
order prior to the October 25 hearing.
[4] At the conclusion of the hearing on Mother’s motion, the trial court denied her
motion to modify custody. The next day, the trial court denied Father’s
proposed order to appear and request for a hearing regarding his petition to
modify parenting time. The trial court’s order states, “Court deems matter
moot as [Father] was asked in Open Court on 10/25/16 if there was anything
else to be heard and responded in the negative.” Appendix of Appellant Korey
Ricciardi, Volume II at 21. This court granted Father’s motion to file a belated
appeal on January 27, 2017.
Discussion and Decision
I. Standard of Review
[5] A decision about parenting time requires us to give foremost consideration to
the best interests of the child. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.
2013). Generally, parenting time decisions are reviewed for an abuse of
discretion. Id. An abuse of discretion occurs where the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before the
court. Russell v. Russell, 682 N.E.2d 513, 515 (Ind. 1997). If the record reveals a
rational basis for the trial court’s determination, there is no abuse of discretion.
In re Paternity of G.R.G., 829 N.E.2d 114, 122 (Ind. Ct. App. 2005).
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[6] We note Mother did not file an appellee’s brief. We apply a less stringent
standard of review with respect to showings of reversible error when an appellee
fails to file a brief. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006).
We will not undertake the burden of developing the arguments for the appellee,
and we may reverse if the appellant establishes prima facie error. Id. When the
appellant fails to sustain that burden, we will affirm. Murfitt v. Murfitt, 809
N.E.2d 332, 333 (Ind. Ct. App. 2004).
II. Denial of Father’s Motion
[7] Father contends the trial court abused its discretion in denying his petition to
modify parenting time. Specifically, he claims the trial court’s reliance on his
statements made at the hearing on Mother’s motion was against the logic and
effect of the facts and circumstances before the court.
[8] The trial court asked Father “if there was anything else to be heard” during the
hearing on Mother’s motion to modify custody. Father’s petition to modify
parenting time was not at issue, nor even scheduled, when he responded in the
negative. As a result, Father could have reasonably understood the trial court’s
question to refer to whether Father had anything else to add regarding Mother’s
motion rather than referring to whether Father had any additional issues to
address. Denying Father’s petition to modify Mother’s parenting time based on
serious allegations that her behavior was impacting C.R.’s best interests without
a hearing and when Father did not affirmatively withdraw his petition is against
the logic and effect of the facts and circumstances presented here. Recognizing
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Mother did not file an appellee’s brief, we conclude Father has established
prima facie error in the trial court’s determination that his petition is moot.
Father is entitled to his day in court, and we therefore reverse the trial court’s
denial of Father’s petition and remand for a hearing.
Conclusion
[9] Concluding the trial court abused its discretion, we reverse and remand for
further proceedings.
[10] Reversed and remanded.
Vaidik, C.J., and Bailey, J., concur.
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