Glenn Hatmaker v. Betty Hatmaker , 2013 Ind. App. LEXIS 589 ( 2013 )

Nov 27 2013, 5:53 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
WILLIAM A. RAMSEY DEANNA A. DEAN-WEBSTER
Murphy Ice & Koeneman LLP Dean-Webster Wright LLP
Fort Wayne, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GLENN HATMAKER, )
)
Appellant, )
)
vs. ) No. 49A05-1305-DR-253
)
BETTY HATMAKER, )
)
Appellee. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David J. Dreyer, Judge
Cause No. 49D10-1002-DR-6242
November 27, 2013
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Glenn Hatmaker (“Father”) appeals from the deemed denial of a motion to correct
error which challenged an order denying his motions for unsupervised parenting time with
his child with Betty Hatmaker (“Mother”), and modification of child support. We reverse
and remand for further proceedings consistent with this opinion.
Issues
Father presents two issues for review:
I. Whether his parenting time was improperly restricted or eliminated; and
II. Whether the trial court abused its discretion in its refusal to modify
Father’s child support obligation.
Facts and Procedural History
Father and Mother were married in 2003 and separated in February of 2010. Father
was convicted of committing battery upon Mother and, on November 21, 2011, the parties
were divorced. At that time, Father was awarded only supervised visitation with the sole
child of the marriage, R.H., contingent upon the completion of domestic violence counseling.
Father, who was receiving unemployment compensation of $390 per week, was
ordered to pay child support of $85 per week. At that time, Mother was earning $388.60 per
week and incurring child care expenses.
Father completed domestic violence counseling and parenting classes. He also
submitted to a mental health evaluation but “no mental health care was recommended.”
(App. 16.) Accordingly, Father was eligible for alternative misdemeanor sentencing. He
also exercised parenting time with R.H. under the supervision of Kid’s Voice.
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On January 8, 2013, Father filed a motion requesting unsupervised parenting time,
alleging that Kid’s Voice “no longer had time available,” that R.H. was suffering from
parental alienation syndrome, and that an order for supervision premised upon Indiana Code
section 31-14-14-5 (providing for a presumption of supervision in some domestic violence
cases) was not valid more than two years after the crime. (App. 21.) He also averred that his
income had decreased by more than 20% since the entry of the existing child support order,
and requested a reduction in his obligation.
On February 19, 2013, a hearing was conducted at which both parties testified. Father
testified that he worked two days per week at a law firm and typically saw R.H. only about
two hours per month because the supervision fees were unaffordable. Mother testified that
she was afraid of Father, that he had obtained her address and sent letters, and also visited
R.H.’s school and questioned the principal about R.H.’s enrollment. On the same day as the
school visit, Mother had called police and an officer had discovered a decapitated rabbit on
Mother’s doorstep. Mother suspected Father as the source.
On March 4, 2013, the trial court entered an order providing in relevant part:
1. Respondent’s motions are denied.
2. Parenting time shall be furnished to Respondent as previously ordered, and
may be modified upon agreement of the parties at any time.
(App. 40.) Father filed a motion to correct error, which was deemed denied. This appeal
ensued.
Discussion and Decision
I. Restriction of Parenting Time
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Father was initially afforded only supervised parenting time through Kids’ Voice.
Apparently due to lack of funds, Father’s parenting time decreased to two hours monthly and,
according to Father, Kids’ Voice was no longer able or willing to maintain a time slot for
him. Father argues that the trial court’s refusal to lift the restriction and his inability to pay
for supervised sessions if available effectively eliminates his parenting time and that he is
entitled to unsupervised time with R.H..
“In all visitation controversies, courts are required to give foremost consideration to
the best interests of the child.” Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App.
1998), trans. denied. We review parenting time decisions for an abuse of discretion. Id. 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. Sexton v.
Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.
“The right of non-custodial parents to visit with their children is a ‘“sacred and
precious privilege.”’ Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App. 2003) (quoting
McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. Ct. App. 1997), trans. denied).
“Ideally, a child should have a well-founded relationship with each parent.” Id. Restriction
of parenting time is governed by Indiana Code section 31-17-4-1(a), which provides:
A parent not granted custody of the 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.
Even though the statute uses the word “might,” this Court has previously interpreted the
language to mean that a court may not restrict parenting time unless that parenting time
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“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). A party who seeks to restrict a parent’s
visitation rights bears the burden of presenting evidence justifying such a restriction. Id.The burden of proof is by a preponderance of the evidence. In re Paternity of W.C., 952
N.E.2d 810, 816 (Ind. Ct. App. 2011). We believe that an order for supervision constitutes
such a restriction.
Here, the dissolution decree that limited Father to supervised parenting time included
no specific finding of endangerment. It appears that the restriction may have been premised,
at least in part, upon Indiana Code section 31-17-2-8.3, providing in relevant part:
(a) This section applies if a court finds that a noncustodial parent has been
convicted of a crime involving domestic or family violence that was
witnessed or heard by the noncustodial parent’s child.
(b) There is created a rebuttable presumption that the court shall order that the
noncustodial parent’s parenting time with the child must be supervised:
For at least one (1) year and not more than two (2) years immediately
following the crime involving domestic or family violence[.]1
Alleging that the statutory period had expired and the presumption was no longer
operative, Father sought modification of the existing parenting time order. Such
modifications are governed by Indiana Code section 31-17-4-2, which provides:
The court may modify an order granting or denying parenting time rights
whenever modification would serve the best interests of the child. However,
the court shall not restrict a 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.
1
The dissolution decree does not explicitly reference the statute or include a factual finding that R.H.
witnessed or heard domestic violence. However, the dissolution decree referred to Father’s arrest and
conviction for domestic battery and we presume that the dissolution court was aware of the statute.
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Words and phrases within a statute are to be given their plain, ordinary, and usual
meaning unless a contrary purpose is clearly shown by the statute itself. Barger v. Pate, 831
N.E.2d 758, 763 (Ind. Ct. App. 2005). By its plain language, the statutory presumption of
Indiana Code section 31-17-2-8.3 has lapsed. In turn, the language of the modification
statute provides that parenting time rights may not be restricted absent a finding by the court
that parenting time might endanger the child’s health or significantly impair his or her
emotional development. We believe supervised visitation constitutes such a restriction.
Here, the trial court heard evidence that Father had obtained Mother’s address, sent
letters and visited R.H.’s school. Mother testified to her fear of Father and her suspicion that
he left a decapitated rabbit at her residence. Documentary evidence indicated that Father had
completed anger management and parenting classes, participated in a mental health
evaluation, and qualified for alternative misdemeanor sentencing for the battery upon
Mother.
The trial court made no finding of endangerment. Indeed, the trial court implicitly
found that parenting time modification presented no likely danger to R.H. as the order
provides for modification “upon agreement of the parties at any time.” (App. 40). In
essence, the order confers upon Mother the prerogative to enforce the supervision restriction
at her discretion. The order is erroneous, as it is internally inconsistent and in contravention
of statutory authority. Accordingly, we reverse the order denying Father parental access
except when supervised or upon agreement of Mother. We remand with instructions to the
trial court to either enter an order containing sufficient findings to support a parenting time
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restriction or enter an order that does not contain such a restriction. See Walker v. Nelson,
911 N.E.2d 124, 130 (Ind. Ct. App. 2009).
Because it will likely arise on remand, we address Father’s claim that supervision fees
are unaffordable in his economic circumstances, and should be a factor militating toward an
order for unsupervised parenting time. The right of parenting time is subordinated to the best
interests of the child. Lasater v. Lasater, 809 N.E.2d 380, 401 (Ind. Ct. App. 2004).
Accordingly, if unsupervised parenting time would pose a danger to a child, the parent is not
entitled to dispense with supervision because of the costs associated with supervisory
programs. That said, however, our parenting time statutes do not prohibit the trial court from
exploring affordable options for low-income parents, such as grandparent, relative, or child
advocate volunteer supervision. Moreover, it appears that Mother has much greater earnings
than does Father and may be able to contribute to costs of supervision.
II. Modification of Child Support
Indiana Code section 31-16-8-1 provides that child support modification may be made
“upon a showing of changed circumstances so substantial and continuing as to make the
terms unreasonable” or where a party has been ordered to pay an amount that differs by more
than twenty percent from the child support guideline amount and the existing order was
issued at least twelve months prior to the petition for modification. A trial court’s decision
regarding child support will be upheld absent an abuse of discretion. Sexton, 946 N.E.2d at
1183.
Father contends that the trial court abused its discretion by refusing to modify his child
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support obligation in the face of uncontroverted evidence that his income had significantly
decreased while Mother’s had significantly increased. Mother does not dispute that her
income has increased while Father’s decreased, but argues that Father could not obtain a
modification based upon an unsigned child support worksheet. Father then responds that he
electronically signed a packet of materials including his economic statement and a child
support worksheet, while Mother failed to submit an economic statement. Nevertheless, we
need not enter into a debate regarding the sufficiency of Father’s purported electronic
signature, because a substantial change in circumstances is made evident from the parents’
testimony under oath, child support worksheets, paycheck stubs, and other documentation.
Mother’s signed worksheet indicates that her income had increased from $388.60
weekly to $837 weekly. She no longer incurred child care expenses, but paid $15 per week
in medical and dental insurance premiums for R.H. In addition to his worksheet, Father
submitted into evidence a document disclosing that he had exhausted his unemployment
benefits. He submitted paycheck stubs from part-time work and testified that he had, two
weeks previously, obtained employment paying $128 per week. Mother also submitted into
evidence her paycheck stubs.
Based upon this data, the Indiana Child Support Guideline amount of Father’s
obligation would be $22 weekly. The existing order was for $85 weekly. It is also
noteworthy that Father was responsible for paying all costs of supervised parenting time.
The trial court’s refusal to modify Father’s child support is contrary to the facts and
circumstances before it. We therefore reverse the order and remand for a child support order
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consistent with the Indiana Child Support Guidelines or providing reasons for a deviation.
Because it will likely arise on remand, we address Father’s contention that a
modification of his child support should be retroactive to the date he filed his petition.
Generally, the trial court has the discretionary power to make a modification for child support
relate back to the date the petition to modify is filed or any date thereafter chosen by the trial
court. Sexton, 946 N.E.2d at 1183. Accordingly, while the trial court may choose to grant
Father’s request for relation back to the filing date, Father has no statutory entitlement to
such.
Conclusion
The order for supervised parenting time, modifiable upon agreement of the parties, is
contrary to law. The trial court abused its discretion by refusing to modify Father’s child
support obligation in the face of uncontroverted evidence that Mother’s income had increased
substantially while Father’s income had decreased substantially.
Reversed and remanded for further proceedings consistent with this opinion.
MAY, J., and BRADFORD, J., concur.
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