Gierly Perrigo Ingco v. William D. Anderson, Jr. (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Feb 18 2016, 7:42 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Emerito F. Upano Holly J. Wanzer
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gierly Perrigo Ingco, February 18, 2016
Appellant-Defendant, Court of Appeals Case No.
29A05-1507-JP-833
v. Appeal from the Hamilton Circuit
Court
William D. Anderson, Jr., The Honorable Paul A. Felix, Judge
Cause No. 29C01-0812-JP-2124
Appellee-Plaintiff.
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 1 of 10
STATEMENT OF THE CASE
[1] Appellant-Respondent, Gierly Perrigo Ingco (Mother), appeals the trial court’s
modification of parenting time.
[2] We affirm.
ISSUES
[3] Mother raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by requiring Mother’s
parenting time to be supervised; and
(2) Whether the paternity affidavit, establishing Father’s paternity to the
minor child, is voidable.
FACTS AND PROCEDURAL HISTORY
[4] The parties’ minor child, W.A. (Child), was born out of wedlock on December
28, 2005. At the Child’s birth, Mother and Appellee-Petitioner, William D.
Anderson, Jr. (Father), executed a paternity affidavit affirming Father to be the
Child’s natural father. Father is listed on the birth certificate. Initially, Mother
and Father lived together with the minor child. When the cohabitation ended,
the parties agreed that the Child would live with Mother.
[5] In December 2008, Father filed a petition to establish paternity. In April 2009,
Father filed an emergency petition for temporary custody. In June 2009, the
trial court entered a preliminary order awarding temporary physical custody of
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 2 of 10
the Child to Father. On December 8, 2014, the trial court issued its Final
Judgment and Decree of Paternity in which it established Father’s paternity of
the Child, awarded legal and primary physical custody to Father, and denied all
requests by Mother to set aside the paternity affidavit and request DNA testing
to confirm biological paternity as untimely. In March 2015, pursuant to
Indiana Trial Rule 60(B), Mother filed a motion for relief from the paternity
affidavit, which was denied by the trial court. Mother appealed the trial court.
On appeal, we concluded that Mother “failed to show that she is entitled to the
extraordinary remedy of relief from the paternity decree.” In re Paternity of
W.A., III, 29A05-1504-JP-161 (Ind. Ct. App. Aug. 7, 2015).
[6] On March 16, 2015, while Mother’s motion for relief was pending, Father filed
a verified petition for modification of parenting time, asserting that “Mother is
engaged in a concerted and active campaign to convince [the Child] that a
custody change from Father to Mother is imminent and necessary” and
requesting the trial court to mandate supervised parenting time for Mother.
(Appellant’s App. p. 25). On April 14, 2015 and May 12, 2015, the trial court
conducted a hearing on Father’s petition. During the hearing, Father presented
evidence that Mother was exhibiting a pattern of alienating behaviors, which
were causing emotional damage to the Child. On May 26, 2015, the trial court
issued its Order modifying the existing parenting time and requiring Mother’s
parenting time to be supervised. In its Order, the trial court found, in pertinent
part, that
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 3 of 10
18. Mother has engaged in a pattern of behavior which is
causing great anxiety and pressure on the Child. Mother has
encouraged the Child to call 911 during Father’s parenting time
without any emergency need, has encouraged the Child to
participate in the obstruction of parenting time exchanges, has
repeatedly disparaged Father to the Child, has discussed her
intentions to seek a custody change with the Child, has obtained
unnecessary medical treatment for the Child, has made
unsubstantiated reports to the Department of Children’s Services
[sic] containing false claims of abuse or neglect by Father and has
generally failed to encourage a positive relationship between the
Child and Father.
19. The Child’s therapist, Dr. Randall Krupsaw, testified at the
hearing. Based on his testimony, the [c]ourt determined that the
Child is exhibiting anxiety and confusion. In addition, the Child
is engaged in negative and destructive behaviors such as physical
altercations and running away from home.
20. Dr. Krupsaw concluded that without intervention and an
interruption of this pattern of behavior, the relationship between
Father and the Child will continue to deteriorate, which is not in
the minor child’s best interests.
21. Mother’s behavior has caused substantial negative impact on
Father’s relationship with the minor child, and the Child has
developed anxiety and an emotional adjustment disorder as a
result. The child’s long term emotional health is at risk if
immediate intervention and interruption of Mother’s behavior
does not occur.
***
26. It is not the intention of this [c]ourt to require supervised
parenting time indefinitely; however, with the evidence
presented, the [c]ourt has no ability to determine how long it will
take Mother to stop behaving in ways demonstrated above and
that have caused the Child so much trauma. Unfortunately, the
[c]ourt acknowledges that this order will likely add anxiety and
stress to the Child. The Child wants to be with both his parents.
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 4 of 10
The Child has a great emotional bond with both parents. The
[c]ourt weighs this concern against the very real damage Mother
is causing on a regular and consistent basis to the Child.
Considering the delicate balance involved here, the [c]ourt
concludes that supervised parenting time will in the long run be
more beneficial than harmful, and so orders supervised parenting
time to begin.
(Appellant’s App. pp. 12-13, 14).
[7] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Modification of Parenting Time
[8] Mother contends that the trial court’s modification of parenting time is
unsupported by the evidence. Decisions involving parenting time rights under
the paternity statutes are committed to the sound discretion of the trial court. In
re Paternity of W.C., 952 N.E.2d 810, 815 (Ind. Ct. App. 2011). Reversal is
appropriate only upon a showing of an abuse of that discretion. Id. at 816.
When reviewing the trial court’s decision, we neither reweigh the evidence nor
reexamine the credibility of the witnesses. Id.
[9] Indiana has long recognized that the right of parents to visit their children is a
precious privilege that should be enjoyed by noncustodial parents. Lasater v.
Lasater, 809 N.E.2d 380, 400 (Ind. Ct. App. 2004). Accordingly, a noncustodial
parent in a paternity action is generally entitled to reasonable parenting time
rights. See Ind. Code § 31-14-14-1(a). The right of parenting time, however, is
subordinated to the best interest of the child. Lasater, 809 N.E.2d at 401.
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 5 of 10
Indiana Code section 31-14-14-1, which outlines the parenting time rights of a
noncustodial parent in a paternity action, provides:
(a) A noncustodial parent is entitled to reasonable parenting time
rights unless the court finds, after a hearing, that parenting
time might:
(1) endanger the child’s physical health and well-being; or
(2) significantly impair the child’s emotional development.
[10] Even though I.C. § 31-14-14-1 uses the term “might,” we have interpreted the
statute to mean that a court may not restrict parenting time unless that
parenting time would endanger the child’s physical health or well-being or
significantly impair the child’s emotional development. Walker v. Nelson, 911
N.E.2d 124, 130 (Ind. Ct. App. 2009). By its plain language, the statute
requires a court to make a specific finding of physical endangerment or
emotional impairment before placing a restriction on the noncustodial parent’s
parenting time. Id. A party who seeks to restrict parenting time bears the
burden of presenting evidence justifying such a restriction. Farrell v. Littell, 790
N.E.2d 612, 616 (Ind. Ct. App. 2003). The burden of proof is the
preponderance of the evidence standard. In re Paternity of P.B., 932 N.E.2d 712,
720 (Ind. Ct. App. 2010).
[11] Here, the trial court made a specific finding that parenting time would endanger
the Child’s emotional wellbeing. The trial court’s finding is supported by the
testimony of Dr. Randall Krupsaw (Dr. Krupsaw), W.A.’s therapist, who
explained at the hearing, that
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 6 of 10
[M]other tells [W.A.] that his [F]ather tricked his [M]other into
liking him and staying at his house when they were boyfriend
and girlfriend. That [F]ather became mean to [M]other by
yelling at her and so she left him. That [F]ather is not really his
[F]ather. That [F]ather got the [c]ourt to make [M]other pay
$100 every month to [F]ather. That [F]ather has made [M]other
pay a lot of money to court. That losing all that money is going
to make [M]other have to give up her television, telephone,
dinners out, and other fun things. That his step-father has had to
go to Texas to make money because [F]ather has been taking so
much money from [M]other. That [F]ather is trying to take him
away from [M]other. That [M]other would like him to call
[F]ather “Daddy-Bill” and that it’s okay to call his step-father
“Dad.” That the [c]ourt made it so he has to call [F]ather
“Dad.” That it’s okay if he stays with [M]other overnight when
he’s really supposed to go back with [F]ather to [F]ather’s house.
That [M]other is going to court to make it so he can live with her.
That [M]other misses him a lot and wants him to live with her.
That soon he will be able to go to court and tell the Judge that he
wants to live with [M]other. And if the [c]ourt lets him live with
[M]other, then [M]other will get back all the money that she has
had to pay to [F]ather.
(Transcript pp. 31-32). Based on these observations, Dr. Krupsaw concluded
that
[W.A.] seemed to be experiencing what we call an adjustment
disorder with mixed disturbance of emotions and conduct. It’s a
mental health diagnosis that describes a condition that is stress
caused and involves typically some emotional difficulties
involving anxiety, frustration, anger, depression, that are also
finding expression in some increased behavior problems often,
you know, in the form of defiance or oppositionality. And that
seemed to be what was going on. The main operative stressors
driving that problem appeared to be [W.A.] missing his [M]other
and, according to [W.A.’s] reports, his [M]other engaging in
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 7 of 10
what I would call parental alienating tactics, including pressuring
about custody issues and disparaging [F]ather to [W.A.]
(Tr. pp. 29-30). Dr. Krupsaw also cautioned that if W.A. continues to be
subjected to pressure, W.A. “is going to act irrationally and in a counter-
productive, potentially dangerous way to try to resolve that conflict that [W.A.]
is under.” (Tr. p. 38).
[12] While this evidence alone would be sufficient to support the trial court’s
modification of parenting time, the record provides an abundance of other
examples of Mother’s intent to interfere in Father’s relationship with his Child.
Father testified that Mother, on several occasions, obstructed Father’s parenting
time by allowing and encouraging W.A. to refuse to leave her house at the
conclusion of her parenting time and by encouraging W.A. to act out while he
is with Father. Mother rewarded the Child with a pancake breakfast after he
ran away from Father’s residence. Mother also admitted to reporting Father to
the Department of Child Services for abuse or neglect. After an investigation,
these reports were determined to be unsubstantiated.
[13] Based on this evidence, we agree with the trial court that Mother’s behavior is
endangering the Child’s emotional and psychological development. See I.C. §
31-14-14-1. The imposition of supervised visitation with Mother until she stops
“behaving in ways demonstrated above and that have caused the Child so much
trauma” is in the Child’s best interests. See I.C. § 31-14-14-2; (Tr. p. 14). While
this modification will allow W.A. to still spend time with both parents, at the
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 8 of 10
same time his emotional and psychological state of mind can start to heal. We
affirm the trial court’s modification of Mother’s parenting time.
II. Paternity Affidavit
[14] Mother contends that the trial court’s order for supervised parenting time is an
abuse of discretion because it is based on a voidable paternity affidavit.
Specifically, she maintains that the paternity is voidable because “Mother
state[d] under oath that she never had sex with Father, then the signature of
Father is not valid[.]” (Appellant’s Br. 7). However, not only is this argument
raised for the first time on appeal and thus waived for our review, we already
considered Mother’s assertions of fraud and voidability with respect to the
paternity affidavit in the prior appeal. See, e.g., Felsher v. Univ. of Evansville, 755
N.E.2d 589, 593 n.6 (Ind. 2001) (In civil cases, a party cannot raise an issue for
the first time on appeal). In our memorandum opinion, we concluded:
Here, Mother was aware of Father’s alleged fraud in signing the
paternity affidavit when Child was born in 2005, and she herself
participated in the alleged fraud by also signing the affidavit.
Moreover, Mother remained aware of the alleged fraud when the
trial court issued the paternity decree in 2014, yet she did not file
a direct appeal and challenge the decree on that issue. And
furthermore, Mother cites no relevant authority for the
proposition that she may compel DNA testing and disestablish
Father’s paternity under these circumstances. In sum, Mother
has failed to show that she is entitled to the extraordinary relief
from the paternity decree.
In re Paternity of W.A., III, slip op. p. 4-5 (internal footnote and reference
omitted).
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 9 of 10
[15] The doctrine of res judicata prevents the repetitious litigation of that which is
essentially the same dispute. In re Adoption of Baby W., 796 N.E.2d 364, 373
(Ind. Ct. App. 2003), reh’g denied, trans. denied. Within this doctrine, claim
preclusion applies where a final judgment on the merits has been rendered
which acts as a complete bar to a subsequent action on the same issue or claim
between those parties and their privies. Id. Accordingly, as Mother’s claim has
been litigated and decided on the merits, she cannot now raise the issue again.
Accordingly, we deny Mother’s request to re-litigate this issue.
CONCLUSION
[16] Based on the foregoing, we conclude that the trial court did not abuse its
discretion by modifying Mother’s parenting time.
[17] Affirmed.
[18] Najam, J. and May, J. concur
Court of Appeals of Indiana | Memorandum Decision 29A05-1507-JP-833 | February 18, 2016 Page 10 of 10