William R. Johnson v. Tonya S. Johnson (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Mar 29 2016, 5:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Mar 29 2016, 5:45 am
regarded as precedent or cited before any
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
Konrad M. L. Urberg Perry D. Shilts
Jared P. Baker Shilts & Setlak, LLC
Urberg Law Office, LLC Fort Wayne, Indiana
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William R. Johnson, March 29, 2016
Appellant-Respondent, Court of Appeals Case No.
90A02-1508-DR-1259
v. Appeal from the Wells Superior
Court
Tonya S. Johnson, The Honorable Chad E. Kukelhan,
Appellee-Petitioner. Special Judge
Trial Court Cause No.
90D01-0708-DR-51
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, William R. Johnson (Father), appeals the trial court’s
denial of his motion to modify a prior Agreed Entry entered into with Appellee-
Petitioner, Tonya S. Johnson (Mother), regarding parenting time.
[2] We affirm.
ISSUE
[3] Father raises one issue on appeal, which we restate as: Whether the trial court
erred in deviating from the Indiana Parenting Time Guidelines (Guidelines) by
concluding that Father’s wife may not act as a primary caregiver.
FACTS AND PROCEDURAL HISTORY
[4] On August 29, 2007, Mother filed a petition to dissolve her marriage to Father.
The marriage produced four children, two of whom are emancipated. On
January 30, 2009, Father and Mother reached a Marital Settlement Agreement.
A decree of dissolution was entered the same day. Pursuant to the Marital
Settlement Agreement, Mother received custody of the parties’ two minor
children (Children), and Father received “the right to visit said minor
[C]hildren at all reasonable times and places so long as said [parenting time]
do[es] not interfere with the health or education of the [C]hildren.”
(Appellant’s App. p. 14). The parties agreed to refer to the Guidelines in the
event of any disagreements.
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[5] Following the Marital Settlement Agreement, a number of disputes arose
between the parties. Relevant to this appeal were multiple verbal altercations
between Mother and Father’s then-girlfriend, Patti Clark (Stepmother), 1 some
of which occurred in the presence of the Children. There were also
confrontations involving Stepmother and the parties’ two emancipated children.
On August 19, 2014, the parties filed an Agreed Entry in an effort to resolve
their issues. The Agreed Entry provided, in pertinent part, “that [Stepmother]
may transport the minor [C]hildren at all times including during opportunities
for additional parenting time. The parties also understand and agree that
[Stepmother] shall not be the primary caregiver for the minor [C]hildren during
the opportunities for additional parenting time.” (Appellant’s App. p. 28).
[6] On May 18, 2015, Father filed a Verified Petition to Modify Parenting Time
and Prior Agreed Entry. In part, Father claimed that because he married
Stepmother following the Agreed Entry, Stepmother “should be considered a
responsible household member and ought to be allowed to provide caretaking
responsibilities for the minor [C]hildren.” (Appellant’s App. p. 23). On July 1,
2015, the trial court conducted a hearing, and on July 29, 2015, it issued its
Findings of Fact and Conclusions of Law. The trial court concluded “that
[Stepmother] may only transport the minor [C]hildren for parenting time.
1
On November 8, 2014, Father and Stepmother were married.
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[Stepmother] shall not be the primary caregiver for the minor [C]hildren.”
(Appellant’s App. p. 19).
[7] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Father claims that the trial court erred by concluding that Stepmother may not
act as a primary caregiver for the Children based on her status as a “household
family member.” Ind. Parenting Time Guideline I(C)(3). Here, the trial court
entered sua sponte findings of fact and conclusions thereon. Thus, “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.” Clary-Ghosh v.
Ghosh, 26 N.E.3d 986, 990 (Ind. Ct. App. 2015), reh’g denied; trans. denied. We
may affirm a general judgment on any legal theory supported by the evidence.
Id. On review, we must consider whether the evidence supports the trial court’s
findings and whether those 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. We will find
the judgment to be clearly erroneous if it relies on an incorrect legal standard.
Id.
[9] In addition, in matters of family law, our court generally gives “considerable
deference to the findings of the trial court . . . as a reflection that ‘the trial judge
is in the best position to judge the facts, . . . to get a sense of the parents and
their relationship with their children—the kind of qualities that appellate courts
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would be in a difficult position to assess.’” Shelton v. Shelton, 835 N.E.2d 513,
516 (Ind. Ct. App. 2005) (second alteration in original) (quoting MacLafferty v.
MacLafferty, 829 N.E.2d 938, 940 (Ind. 2005)), aff’d, 840 N.E.2d 835 (Ind.
2006). Thus, we do not reweigh evidence or assess the credibility of witnesses,
and “we must consider only the evidence most favorable to the judgment along
with all reasonable inferences drawn in favor of the judgment.” Clary-Ghosh, 26
N.E.3d at 990. While we accord “substantial weight . . . to the trial court’s
factual conclusions and credibility determinations, ‘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.’” Shelton, 835 N.E.2d
at 516 (quoting MacLafferty, 829 N.E.2d at 941).
[10] Indiana’s legislature and supreme court “have promulgated a series of statutes,
rules, and guidelines—standards that bring consistency and predictability to the
many family law decisions.” Id. (quoting MacLafferty, 829 N.E.2d at 941). The
Guidelines are included among these standards. Id. To the extent that we must
interpret the Guidelines’ language, we conduct a de novo review, without
deference to the trial court’s legal conclusions. Id.
[11] The Guidelines “are based on the premise that it is usually in a child’s best
interest to have frequent, meaningful and continuing contact with each parent.”
Parenting Time G. pmbl. The Guidelines anticipate that parents “should be
flexible and create a parenting time agreement which addresses the unique
needs of the child and their circumstances.” Parenting Time G. pmbl. In the
event that parents cannot reach a mutual parenting time arrangement, the
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Guidelines “represent the minimum time a parent should have to maintain
frequent, meaningful, and continuing contact with a child.” Parenting Time G.
pmbl. In addition, “[p]arents should recognize there will be occasions when
modification of the existing parenting schedule will be necessary.” Parenting
Time G. I(C). Accordingly, the Guidelines provide:
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 child 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. . . .
Parenting Time G. I(C)(3). Often “mistakenly referred to as the ‘right of first
refusal[,]’” this section more accurately provides “an opportunity to exercise
additional parenting time.” Parenting Time G. I(C)(3) cmt.
The rule providing for opportunities for additional parenting time
promotes the concept that a child receives greater benefit from
being with a parent rather than a child care provider who is not a
household family member. The household family member is defined
as an adult person residing in the household, who is related to the child
by blood, marriage or adoption.
Parenting Time G. I(C)(3) cmt. (emphasis added).
[12] There is a presumption that Guidelines section I(C)(3) “applies in all cases
which the [G]uidelines cover; however, the parties or a trial court may, within
discretion, determine that a deviation is necessary or appropriate. Any such
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deviation must be accompanied by a written explanation.” Parenting Time G.
I(C)(3) cmt.; see Shelton v. Shelton, 840 N.E.2d 835, 835 (Ind. 2006). Here, the
trial court found that Father’s motion to modify the Agreed Entry was a request
to
implement[] . . . Guidelines [section I(C)(3)] . . . when it becomes
necessary that the parties’ minor [C]hildren be cared for by a
person other than [Father] or a responsible household family
member, the parent needing the child care shall first offer the
other parent the opportunity for additional parenting time . . . .
[Father] is alleging that upon his marriage to [Stepmother], she
shall be defined as a responsible household family member.
(Appellant’s App. p. 16). The trial court subsequently concluded
that a deviation [from section I(C)(3) of the Guidelines] is
necessary in this case due to the fact that the restriction on
[Stepmother] as not being the primary caregiver for the minor
[C]hildren was agreed upon by the parties on August 19, 2014.
Further, the verbal altercations between [Mother] and
[Stepmother] in front of the parties’ minor [C]hildren are not in
the best interest of the [C]hildren. Therefore, the [c]ourt orders
that [Stepmother] may only transport the minor [C]hildren for
parenting time. [Stepmother] shall not be the primary caregiver
for the minor [C]hildren.
(Appellant’s App. p. 19).
[13] Father contends that the trial court’s findings do not support its conclusion that
Stepmother may transport the Children but is prohibited from acting as a
primary caregiver even though she is a “responsible household family member”
by virtue of her marriage to Father. (Appellant’s Br. p. 9). Specifically, Father
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argues that “[e]ven when it is assumed that there is a history of verbal
altercations between [Mother] and [Stepmother], that those verbal altercations
negatively impact the minor [C]hildren’s best interests, and reasonably infer
that future verbal altercations will occur and will negatively impact the minor
[C]hildren’s best interests,” these altercations would only occur during the
exchanges of the Children between the parents, which the trial court has
permitted Stepmother to do, but would not occur while Stepmother is providing
primary care for the Children.
[14] On the other hand, Mother asserts, in part, that the trial court properly
concluded that Stepmother may not act as the Children’s caregiver because the
parties’ prior Agreed Entry was entered into in order to protect the best interests
of the Children. Specifically, Mother analogizes Father’s request to modify the
parenting time arrangement to “a vicious dog scenario”:
Once a dog has this label [as a vicious dog], the owner must take
precautions to protect the public in order to avoid the dog being
euthanized for safety reasons. Father’s changing the dog’s name
from Rover to Mrs. Rover less than three months after he agreed
to specific safety precautions does not eliminate the need for
those precautions going forward in time absent some other
demonstrable proof the dog is no longer a risk to the public.
(Appellee’s Br. p. 11). Applying this scenario to the present case, Mother
argues that
Father agreed to reasonable safety precautions for his children’s
best interests on August 19, 2014. Father changed
[Stepmother’s] name and legal status by marrying her on
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November 8, 2014, but presented no demonstrable proof that the
reasons which led to the Agreed Entry of August 19, 2014[,] had
been addressed such that those agreed upon and reasonable
safety precautions could be removed and were in his [C]hildren’s
best interests.
(Appellee’s Br. p. 11).
[15] We first note that Mother’s comparison of Stepmother to a “vicious dog” at risk
of being euthanized is certainly not conducive to developing a more cooperative
co-parenting relationship for the sake of the Children. (Appellee’s Br. p. 11). In
addition, we find that Mother’s argument is patently offensive. Nevertheless,
notwithstanding the trial court’s conclusion or the parties’ arguments, our court
has previously determined that “the rationale of section I(C)(3)” is that “the
parent without physical custody is given the opportunity for additional parenting
time when the custodial parent is regularly unavailable.” Shelton, 835 N.E.2d at
517 (emphasis added). “The practical outgrowth of this . . . is that the best
interests of the child are also served by extending the parental childcare
preference to responsible family members within the custodial parent’s household,
also the child’s household.” Id. (emphasis added).
[16] The definition of “household family member” under Guidelines section I(C)(3)
is “limited to a person within the same household as the parent with physical
custody.” Id. Therefore, “when the parent with physical custody or a
responsible member of that parent’s household cannot care for the child, the
noncustodial parent is to be offered [additional parenting time] regardless of
whether a non-household family member can care for the child without cost.”
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Id. at 517-18. In this case, as the non-custodial parent, it is Father who is
entitled to additional parenting time when Mother or one of her responsible
household family members is unavailable. Accordingly, the definition of a
“household family member” does not apply to Stepmother because she lives
with the non-custodial parent—i.e., Father. As such, we need not address
whether the trial court erred in concluding that a deviation from Guidelines
section I(C)(3) was necessary.
CONCLUSION
[17] Based on the foregoing, we conclude that Stepmother is not a “household
family member” as contemplated by section I(C)(3) of the Guidelines.
Accordingly, we affirm the trial court’s denial of Father’s motion to modify the
Agreed Entry to identify Stepmother as such.
[18] Affirmed.
[19] Najam, J. and May, J. concur
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