In re the Marriage of R.E.F. v. A.M.A. f/k/a A.M.F. (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 21 2016, 8:42 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Russell T. Clarke, Jr. Michael R. Auger
Emswiller, Williams, Noland & Clarke, Franklin, Indiana
P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Marriage of R.E.F., April 21, 2016
Appellant-Respondent, Court of Appeals Case No.
41A01-1508-DR-1021
v. Appeal from the Johnson Circuit
Court
A.M.A. f/k/a A.M.F., The Honorable K. Mark Loyd,
Appellee-Petitioner. Judge
Trial Court Cause No.
41C01-1108-DR-581
Najam, Judge.
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Statement of the Case
[1] R.E.F. (“Father”) appeals the dissolution court’s final decree dissolving
Father’s marriage to A.M.A. (“Mother”). Father presents the following issues
for our review:
1. Whether the dissolution court erred when it ordered that
legal custody of the parties’ child, H.F. (“Child”), would
alternate annually.
2. Whether the dissolution court erred when it ordered that
Mother would exercise parenting time with Child every
other week.
3. Whether the dissolution court erred when it did not order
Mother to participate in weekly counseling for a period of
years.
4. Whether the dissolution court’s order denying Father’s
motion to correct error is confusing and requires
clarification.
[2] We affirm.
Facts and Procedural History
[3] Father and Mother married in 1999. Each had children from previous
relationships, and the parties had one child together, H.F. (“Child”), born
February 23, 2000. In 2011, Mother filed a petition for dissolution of the
marriage. Following a final hearing, which concluded on March 3, 2015, the
dissolution court entered the following relevant findings and conclusions:
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9. [Child] was born February 23, 2000. She is the fifteen (15)[-]
year[-]old daughter of the parties.
10. Both parties are seeking sole physical and legal custody of
[Child]. Dr. Richard Lawlor and Dr. Bart Ferraro provided child
custody evaluations.
11. [Child] testified that she is happy to have two (2) parents but
does not like the tension or stress of the custody dispute between
them. Although [Child] expressed love for [Father], she wishes
to live with [Mother] and have little or not [sic] parenting time
with her Father.
12. [Child] objects to [Father] recording their conversations but
understands that he will likely continue to record based upon his
concerns that there have been numerous false allegations made
against him by [Mother].
13. [Child] complained that her Father will not let her walk to
the park or around the neighborhood alone, and he has
passwords to lock certain television programs and X-box.
14. [Child] testified she has a good relationship with her half-
sibling, [C.F.], and sees him during parenting time.
15. [Child] is a student at Greenwood High School where she
participates in the choir concert, soccer, and color guard.
16. [Child] and [Father] participated in joint counseling with
Amy Egler, LMFT. Ms. Egler reported to Dr. Ferraro as part of
his custody evaluation that [Child] had demonstrated a positive
adjustment to the relationship with her Father during Spring
Break vacation and regressed in the weeks following her return to
the Petitioner’s home. Ms. Egler noted in his [sic] regard that
[Child] herself stated “it’s fine if we’re away.” Ms. Egler
questioned whether [Child]’s regression on this and other
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occasions could be due to [Mother]’s influence because she
perceives [Child] and her mother to be overly aligned.
17. Dr. Ferraro reviewed Dr. Lawlor’s custody evaluation and
included Dr. Lawlor’s findings in the second evaluation. Dr.
Lawlor recommended the continued sharing of joint legal
custody and the sharing equally of physical custody/parenting
time, the latter in a 2:2:5:5 fashion. Dr. Lawlor also
recommended the continued involvement of a Parenting
Coordinator.
18. Dr. Ferraro recommended that the parties share joint
physical custody with the schedule of a week on/week off basis
with transitions to occur on Fridays after school or after Friday
extracurricular involvement. Dr. Ferraro also recommended that
the parties alternate sole legal custody on an annual basis in order
to mitigate the potential or the likelihood that one parent could
misuse his or her authority in any sustained or ongoing fashion.
Dr. Ferraro also strongly recommended for the parties to
continue to work with a Parenting Coordinator through [Child]’s
18th birthday.
19. Mr. Richard Wacker was the initial court[-]appointed
Parenting Coordinator. The parties first met with Mr. Wacker in
a joint session on March 9, 2012, to resolve issues relating to
communication, the exchange location, and additional parenting
time for [Father]. It was necessary at that time for Mr. Wacker
to urge [Mother] to provide [Father] with her current address and
not to deactivate her working phone number without first
contacting the PC or providing [Father] an alternative working
number.
20. Prior to those agreements, [Mother] had consistently blocked
communication attempts from [Father] to [Child].
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21. Mr. Wacker reported that although [Mother] continuously
alleged incidents of domestic violence[,] he could not
[corroborate] any such incident.
22. Mr. Wacker further reported that despite the voluminous
number of police reports and number of complaints filed with the
Department of Child Services (DCS), no complaint or allegation
of misconduct on the part of [Father] had ever been substantiated
by either agency.
23. Mr. Wacker reported that there had been little progress at the
joint sessions by having both parties in the same room due to the
high level of conflict between them.
24. Mr. Wacker’s final report, filed June 9, 2014, indicated that
[Mother]’s claims of stalking, harassment, physical and mental
abuse from [Husband] were unsubstantiated and that he had not
received any document or tangible proof of [Mother]’s
allegations.
25. On August 13, 2014, the Court appointed Dr. John
Ehrmann, Jr., Psy.D.[,] as Successor Parenting Coordinator. Dr.
Ehrmann is a clinical psychologist, licensed in the State of
Indiana. He met with the parties on a number of occasions.
26. Dr. Ehrmann reported that a final PC meeting was
scheduled for January 13, 2015[,] at 9:30 A.M., but [Mother]
failed to attend on time, even though she had confirmed the
appointment by email dated January 7, 2015. Though appearing
over two (2) hours late, [Mother] was outraged and screaming in
the presence of other patients at the Doctor’s office.
27. Dr. Ehrmann submitted to the Court his Parenting
Coordination Summary of February 18, 2015. It stated in
pertinent parts as follows:
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“In general, parenting coordination has been ineffective in resolving
difficulties between these two parents. For the most part, sessions are
dominated by [Mother] who attempts to use the time to denounce
[Father] in any and all ways possible. In essence, reaching an agreement
on virtually anything between the two is impossible. There has been
much more contact via email. Unfortunately, this had done nothing but
triangulate the situation for this parenting coordinator. [Mother] has
often provided incomplete and not necessarily accurate information in
great abundance. In essence, when she is not supported in her wishes
regarding the provision of medical care or education issues regarding
[Child], she proceeds unilaterally and does as she chooses.
For the most part[, Father] has been quite cooperative and responsive.
He, too, is extremely frustrated with this process[,] however. Having
reviewed the reports of the previous parenting coordinator, Richard
Wacker, Esquire, many of the issues and concerns addressed by Mr.
Wacker appear to be valid. In the opinion of this parenting
coordinator/psychologist, although this is not an attempt to formulate a
formal diagnosis, [Mother] acts and behaves in ways consistent with a
mixed personality disorder. Most prominent i[s] a pattern of histrionic
behavior. Unfortunately, she continues to behave in ways that clearly
interfere in [Father]’s relationship with [Child]. It is quite clear that
[Child], also interviewed by this psychologist/parenting coordinator,
generally reflects her mother’s opinions. She is strongly reinforced by her
mother for her resistance to her father, in ways that reflect a pattern of
parental alienation.”
28. When asked to define mixed personality disorder, Dr.
Ehrmann explained it is a combination of all personality
disorders as defined by the Diagnostic and Statistical Manual of
Mental Disorders.
29. Dr. Ehrmann explained histrionic behavior is marked by a
pattern of emotional overreactions, narcissism, and entitlement,
and as it relates to [Mother], “she will have what and when she
wants, and if she does not get it, Husband will pay the price.”
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30. Dr. Ehrmann explained that [Child] used some of the very
words her mother used to describe her father. Dr. Ehrmann
observed [Mother]’s tone of voice and non-verbal facial
expressions that showed contempt and disrespect for [Father].
31. Dr. Ehrmann’s summary stated, “The primary purpose of this
summary is to inform the Court that parenting coordination services are
essentially ineffective and not, in any way, an appropriate way to resolve
the difficulties and challenges these two parents have in attempting to
meet the needs of their daughter. There is simply no effective way in
which co-parenting is possible. A sole custody model would appear to
have significant advantages in better advocating for this child without the
constant conflict between these parents.
Instead, what appears to be needed here, in addition to a sole custody
model, is an experienced trained guardian ad litem who can monitor the
situation and continue advocacy for [Child]. In this fashion, all future
orders of the Court can be used as a model to hold both parents
accountable as necessary and, again, continue advocacy for [Child].
Finally, in the opinion of the parenting coordinator/psychologist, there is
an urgent need to address the issues here and move things forward in a
more controllable and appropriate fashion as soon as possible.[”]
32. Throughout these proceedings the parents have failed
miserably in their ability to willingly and ably communicate and
cooperate to advance [Child]’s welfare. Parenting Coordination
reports are fraught with endless disagreements over simple
decisions that ultimately would benefit [Child].
33. Whether their actions are motiv[ated] by acquiring a
perceived advantage as to the ongoing litigation or to further
their individual agenda related to their marital conflict, it is
unclear. The Court, though, is bothered by a pattern of behavior
perpetuated by each, but particularly [Mother].
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34. [Child] testified that the lingering nature of the divorce was
causing her stress by placing her in the middle of her parents’
conflict. Despite [Child]’s wishes and the numerous
admonishments from the various entities above mentioned,
[Father] has apparently given those considerations little weight.
His obsession with recording communications has resulted in his
being found in direct contempt of Court for unauthorized
recording of the evidentiary hearings.
35. Though provided preliminary custody of the child, [Mother]
has used that privilege as a tool to deprive [Father] of meaningful
parenting. No co-parenting is encouraged by her. Her testimony
at the final hearing that “I want to be the parent in charge”
amplifies her disconnect. She clearly desires custodial care to
control rather than to nurture any meaningful relationship
between the child and her father. Even when confronted with
consequences of her behavior, she chooses to retain her self-
serving perspective by becoming even more entrenched in her
attitude and actions.
36. [Child] was adamant that she wanted to reside with her
mother and have limited contact with [Father]. The Court is
mandated to consider [Child]’s wishes and equate [sic] the
appropriate weight to said testimony given [Child]’s age.
However, [Mother] has discouraged [Child] from having a
relationship with her father, in effect “alienating” her from him.
Dr. Ehrmann alluded to the same in his Parent Coordination
Summary report. The Court simply cannot ignore the toxic
effect of [Mother]’s conduct on the relationship between the child
and her father.
37. Ultimately, neither party has made a compelling
presentation supporting their ability to effectively place the
child’s best interests above their own. However, the Court is
somewhat encouraged by [Father]’s counseling efforts as recent
progress appears to have been made on his part. For this reason,
the Court finds that it is in the best interest of the child for
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[Father] to have primary physical custody. Based upon the
recommendation of Dr. Ferraro, [Mother] shall have primary
legal custody in even[-]numbered years and [Father] shall have
primary legal custody in odd[-]numbered years.
38. The Court is not incline[d] to restrict [Mother]’s parenting
time with her daughter. The mandates of I.C. [§] 31-17-4-2 have
not been met in that [Child]’s physical health is not endangered
nor will her emotional development be significantly impaired if
the Court awards [Mother] parenting time. As such, the Court
orders that [Mother] receive parenting time pursuant to the
Indiana Parenting Time Guidelines which are adopted herein in
their entirety.
39. Based upon the child’s desires and the parties’ ongoing
conflicts, the Court finds that a deviation in the Parenting Time
Guidelines is appropriate as follows:
i) beginning the first Friday after issuance of this
Decree, the parties shall alternate parenting time on a
weekly basis with [Father] exercising the first full
week;
ii) parenting time exchanges shall occur each Friday
at 6:00 P.M. or after any school extracurricular
activity;
iii) there shall be no mid-week parenting time
exchanges and no additional parenting time
opportunities absent specific written agreement of the
parties;
iv) holiday parenting time is vacated and shall occur
as it falls on each parent’s visitation period; and,
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v) parenting time during extended vacation periods,
(i.e., Fall, Spring, Winter) shall follow the Indiana
Parenting Time Guidelines.
40. By separate order of this Court dated March 5, 2015, the
Court appointed Joseph Walterman, Esq. as [Child]’s Guardian
Ad Litem. In representing [Child]’s interests herein, the Court
anticipates the Guardian Ad Litem will provide reports from time
to time in order to chronicle the parties’ adherence to this Order,
advance issues and concerns raised by [the] ward and report
future conduct that may endanger [Child]’s mental welfare or the
integrity of her physical person. Pursuant to the percentages set
forth below in the Child Support Worksheet, [Mother] shall be
responsible for 15% and [Father] for 85% of the costs associated
with Mr. Walterman’s appointment herein.
Appellant’s App. at 19-24 (emphases original). Father filed a motion to correct
error, which the dissolution court denied in relevant part. This appeal ensued.
Discussion and Decision
Standard of Review
[4] The dissolution court entered findings and conclusions sua sponte. Our
standard of review in such cases is well-settled:
[W]e apply a two-tiered standard of review. Vega v. Allen County
Dep’t of Family & Children (In re J.V.), 875 N.E.2d 395, 402 (Ind.
Ct. App. 2007)[, trans. denied]. We may not set aside the findings
or judgment unless they are clearly erroneous. Ind. Trial R.
52(A); Perrine v. Marion County Office of Child Servs., 866 N.E.2d
269, 273 (Ind. Ct. App. 2007). In our review, we first consider
whether the evidence supports the factual findings. Perrine, 866
N.E.2d at 273. Second, we consider whether the findings
support the judgment. Id. “Findings are clearly erroneous only
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when the record contains no facts to support them either directly
or by inference.” Id.; Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.
1996). A judgment is clearly erroneous if it relies on an incorrect
legal standard. Perrine, 866 N.E.2d at 273. We give due regard
to the trial court’s ability to assess the credibility of witnesses.
T.R. 52(A). While we defer substantially to findings of fact, we
do not do so to conclusions of law. Perrine, 866 N.E.2d at 274.
We do not reweigh the evidence; rather we consider the evidence
most favorable to the judgment with all reasonable inferences
drawn in favor of the judgment. Id.
Zivot v. London, 981 N.E.2d 129, 134-35 (Ind. Ct. App. 2012).
[5] Child custody determinations fall squarely within the discretion of the
dissolution court and will not be disturbed except for an abuse of discretion.
Troyer v. Troyer, 987 N.E.2d 1130, 1145 (Ind. Ct. App. 2013), trans. denied.
“‘The trial court is in a position to see the parties, observe their conduct and
demeanor, and hear their testimony; therefore, its decision receives
considerable deference in an appellate court.’” Id. (quoting Trost-Steffen v.
Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App. 2002), trans. denied). We will not
reverse the trial court’s decision unless it is against the logic and effect of the
facts and circumstances before it or the reasonable inferences drawn therefrom.
Id. “‘On review, we will not reweigh evidence, judge the credibility of the
witnesses, or substitute our judgment for that of the trial court.’” Id. (quoting
Farag v. DeLawter, 743 N.E.2d 366, 368 (Ind. Ct. App. 2001)).
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Indiana Code Section 31-17-2-8
[6] In making the custody determinations here, the dissolution court was required
to follow Indiana Code Section 31-17-2-8, which provides:
The court shall determine custody and enter a custody order in
accordance with the best interests of the child. In determining
the best interests of the child, there is no presumption favoring
either parent. The court shall consider all relevant factors,
including 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 sibling; 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.
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(7) Evidence of a pattern of domestic or family violence by either
parent.
(8) Evidence that the child has been cared for by a de facto
custodian, and if the evidence is sufficient, the court shall
consider the factors described in section 8.5(b) of this chapter.
Issue One: Legal Custody
[7] Father first contends that the dissolution court erred when it ordered that the
parties alternate legal custody of Child on an annual basis. Father maintains
that that arrangement “violates Indiana’s prohibition against an automatic
change of custody.” Appellant’s Br. at 15. In particular, Father states that the
dissolution court’s order on legal custody “fails to require a substantial change
of circumstances of the factors considered by the trial court in an initial custody
order as required by I.C. § 31-14-13-6.”1 Id. at 16.
[8] In support of his contention on this issue, Father cites our supreme court’s
opinion in Bojrab v. Bojrab, 810 N.E.2d 1008 (Ind. 2004). But we find Bojrab
inapposite. In Bojrab, the dissolution decree provided as follows:
[The wife] is granted the custody of the parties’ minor
children. . . . The best interests of the children are served by
requiring that they remain in the Allen County, Indiana
community. Accordingly, the grant of custody of the parties’
minor children is subject to maintaining their residence in Allen
1
We note that Father cites the wrong statute in support of this contention. Indiana Code Section 31-14-13-6
pertains to custody determinations in paternity actions, not dissolution proceedings. Father should have
cited Indiana Code Section 31-17-2-21.
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County, Indiana. In the event the [wife] decides to relocate
outside Allen County, Indiana, without the agreement of the
[husband] or further order of this court, custody of the children
shall be granted to the [husband]. . . .
Id. at 1011. Both parties appealed, and, on transfer, our supreme court
addressed the issue of whether the dissolution court erred when it conditioned
Wife’s custody of the parties’ children on her continuing to reside in Allen
County. Our supreme court held:
We agree that a trial court may not prospectively order an
automatic change of custody in the event of any significant future
relocation by the wife. The decree does contain language
ordering that, in the event the wife unilaterally decides to relocate
outside Allen County, Indiana, “custody of the children shall be
granted to the [husband].” This language is inconsistent with the
requirements of the custody modification statute, Indiana Code §
31-17-2-21. Immediately preceding such language declaring a
conditional future change of custody, however, the decree states:
“the grant of custody of the parties’ minor children is subject to
maintaining their residence in Allen County, Indiana.” There is
a significant difference between the two phrases. One purports to
automatically change custody upon the happening of a future
event; the other declares that the present award of custody is
conditioned upon the continuation of the children’s place of
residence. While the automatic future custody modification violates the
custody modification statute, the conditional determination of present
custody does not. The latter is a determination of present custody
under carefully designated conditions. Upon a violation of said
conditions by the wife as custodial parent, the basis for the
custody order is undermined, and the husband may seek a
change in custody pursuant to the custody modification statute.
This is consistent with the operation of Indiana Code § 31-17-2-
23, which establishes procedures that apply when a person who
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has been awarded child custody intends to relocate outside
Indiana or more than 100 miles from the existing residence. The
statute calls for a notice by the relocating party and, upon request
of either party, “a hearing for the purposes of reviewing and
modifying, if appropriate, the custody, visitation, and support
orders.” Ind. Code § 31-17-2-23(b) (emphasis added). Construed
in this manner, the trial court’s custody order is not improper.
We understand this to be the position of the Court of Appeals,
which we find correct.
Id. at 1012-13 (some emphasis added).
[9] Again, Father maintains that the dissolution court’s order in this case
constitutes an “automatic future custody modification” in violation of the
custody modification statute. See id. at 1012. We disagree. The legal custody
order is not based on a future change of the factors relevant to modification of
custody under Indiana Code Section 31-17-2-21. Rather, the dissolution court
carefully crafted a legal custody arrangement, whereby the parties alternate
legal custody, based upon the court’s determination of the relevant statutory
factors at this time. If a substantial change of circumstances occurs in the
future, either party may seek modification of the legal custody order. We hold
that, given the evidence that the parties would be unable to share joint legal
custody, and given that the dissolution court found that awarding sole legal
custody to one parent for the short remainder of Child’s minority was not
warranted, this carefully-crafted order is appropriate and consistent with
relevant statutory and case law.
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[10] Father also contends that alternating legal custody is not in Child’s best
interests. In particular, Father maintains that “[Child]’s boundaries and
expectations will, at a minimum, shift every year when legal custody changes.”
Appellant’s Br. at 18. And Father asserts that the order “places [Child] in a
situation where she may develop a personality disorder and where she will
become more exposed to Mother’s behavior to alienate her from Father.” Id.
But Father’s contentions amount to a request that we reweigh the evidence,
which we will not do.
[11] The dissolution court found that “neither party has made a compelling
presentation supporting their ability to effectively place the child’s best interests
above their own.” Appellant’s App. at 23. Accordingly, the dissolution court
adopted Dr. Ferraro’s recommendation that legal custody alternate between
Father and Mother annually. In support of that recommendation, Dr. Ferraro
stated as follows:
Both parents appear largely able to make sound decisions as
relates to their daughter’s educational and medical needs and it is
unlikely that [Child] would suffer were either of them to be
authorized to do so, particularly so long as the decision maker
remained involved in their own individual and, for [Father],
parent-child therapy so as to maximize the likelihood that
[Child]’s voice would be heard in decisions made on her behalf in
these arena[s]. . . .
Id. at 163. Dr. Ferraro further stated that the
alternating structure is established in part so as to mitigate any
potential or likelihood that with Sole Legal Custodial Authority,
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one parent could misuse their authority in a fashion less attuned
to the needs and best interests of their daughter in any sustained
or ongoing fashion. This custodial structure is also
recommended in an effort to establish each parent’s viability as
an equal and capable parent, despite their current views to the
contrary. . . .
Id. at 163-64.
[12] The dissolution court’s findings and conclusions relevant to legal custody show
that it carefully considered the evidence, including the recommendations of
psychologists, as well as the parties’ testimony. We cannot say that the legal
custody order is not in Child’s best interests. The dissolution court did not
abuse its discretion when it ordered that the parties alternate legal custody
annually.
Issue Two: Parenting Time
[13] Father next contends that the dissolution court erred when it ordered that
Mother exercise parenting time for one week every other week. In particular,
Father maintains that the parenting time order cannot be reconciled with the
dissolution court’s Finding No. 36, which provides as follows:
[Child] was adamant that she wanted to reside with her mother
and have limited contact with [Father]. The Court is mandated
to consider [Child]’s wishes and equate [sic] the appropriate
weight to said testimony given [Child]’s age. However, [Mother]
has discouraged [Child] from having a relationship with her
father, in effect “alienating” her from him. Dr. Ehrmann alluded
to the same in his Parent Coordination Summary report. The
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Court simply cannot ignore the toxic effect of [Mother]’s conduct
on the relationship between the child and her father.
Appellant’s App. at 22-23. Again, we cannot agree.
[14] Indiana Code Section 31-17-4-1 provides that a parent not granted custody of a
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. Father asserts that, because the dissolution court found that
Mother has a “toxic effect” on Child’s relationship with Father, Appellant’s
App. at 23, and because Dr. Ehrmann testified that Mother’s role in alienating
Child from Father was “detrimental” to Child, Tr. at 381, the dissolution court
was required to restrict Mother’s parenting time.
[15] In responding to Father’s motion to correct error on this issue, the dissolution
court stated as follows:
Much like this entire case, [Father]’s motion reflects his
continued difficulty focusing on his child’s best interests versus
his own. As Finding #11 and 32 and 33 and 34 and 36 indicate,
this is a teen [who] is most comfortable with her mother, even if
that is due to [Mother]’s alienation attempts[. I]t makes little
sense at this stage to add to the young lady’s stress by over[ly-]
restricting time with a parent she is most comfortable with.
Appellant’s App. at 36. In Finding No. 11, the dissolution court found that
Child “wishes to live with [Mother] and have little or not [sic] parenting time
with her Father.” Id. at 19. Finding No. 32 states in relevant part that both
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parents have “failed miserably in their ability to willingly and ably
communicate and cooperate to advance [Child]’s welfare.” Id. at 22. And
Findings No. 33 and 34 also refer to bad behavior by both parties with respect
to parenting Child.
[16] Thus, the dissolution court’s findings show that both Mother and Father have
engaged in behaviors that have negatively impacted Child. While the
dissolution court found that Mother’s “pattern of behavior” is of “particular”
concern, id. at 22, the court also appears to have properly considered Child’s
wishes in the matter when it stated that it did not want to “add to [Child]’s
stress by over[ly-]restricting time” with Mother, id. at 36. In other words, given
Child’s clear wish that she live with Mother full time, the dissolution court
concluded that depriving Child of ample time with Mother would likely harm
Child. We cannot say that the dissolution court abused its discretion when it
awarded Mother one week of parenting time every other week.
Issue Three: Counseling
[17] Father contends that the dissolution court abused its discretion when it did not
adopt Dr. Ferraro’s recommendation that “Mother participate in extensive
counseling for a period of years, not months.” Appellant’s Br. at 21. Father’s
argument in support of this contention is similar to his argument in support of
the first two issues. The dissolution court was entitled to accept or reject Dr.
Ferraro’s recommendations in whole or in part. Father has not demonstrated
an abuse of discretion on this issue.
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Issue Four: Clarification of Order on Motion to Correct Error
[18] Finally, Father contends that the dissolution court’s order on his motion to
correct error “is inconsistent with the custody order.” Id. at 23. In particular,
in response to Father’s argument that the dissolution court erred in ordering
that the parties alternate legal custody, the dissolution court stated as follows:
The Court finds no uncorrected error of law or fact associated
with this claim. [Father] is not incorrect that there is little if any
evidence that [Mother] can co-parent with [Father] and equally
there is meager evidence that [Father]’s abilities are any more
advanced than [Mother]’s. This was one of the primary reasons
the Court chose to: (1) place custody with the Father; and (2) to
assure that [Child] had the opportunity to benefit from both
parents’ input.
Appellant’s App. at 36. Father maintains that the dissolution court’s reference
to placing “custody” with him is “unclear.” Appellant’s Br. at 23. In
particular, Father states that the dissolution court’s ruling on the motion to
correct error “only makes sense if it is awarding Father legal custody to make
decisions on behalf of [Child], but still allow parenting time with Mother
because [Child] is closely bonded and aligned with her.” Id. at 24.
[19] While it is somewhat confusing that the dissolution court would reference
physical custody in a response to Father’s argument regarding legal custody, we
cannot say that remand is necessary to clarify the order. The dissolution court
awarded Father physical custody of Child, with Mother exercising generous
parenting time, and the court ordered the parties to alternate legal custody
annually. Because the dissolution court’s order is clear on these issues, we
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cannot say that the court’s order on Father’s motion to correct error needs
clarification.
Conclusion
[20] The dissolution court here was faced with extremely difficult decisions in a very
close case on the questions of legal and physical custody. As the court’s
findings indicate, both Father and Mother have exhibited poor behavior with
regard to parenting Child since their separation. While the dissolution court
emphasized Mother’s deficiencies in parenting skills, the court was also critical
of Father’s parenting skills. And, given Child’s age, the court could not ignore
Child’s sincere wishes that she live with Mother full time.
[21] No dissolution decree can entirely rectify or ameliorate the stressful and
distressful family relationships on full display in this record. While another
court may well have entered a different decree, that does not mean that the
court in this case abused its discretion. The dissolution court fashioned orders
on legal custody and parenting time that accommodate the wishes of the
teenaged child while balancing the role of each parent in her life. We cannot
say that the dissolution court abused its discretion in its orders on legal custody
of Child or parenting time. And the dissolution court’s order on Father’s
motion to correct error does not require clarification.
[22] Affirmed.
Robb, J., and Crone, J., concur.
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