Karen Ellen Fielder v. Brandon Eric Fielder (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 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 3 of 11
[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
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 8 of 11
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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 9 of 11
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,
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 10 of 11
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
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017 Page 11 of 11