Michael D. Perkinson, Jr. v. Kay Char Perkinson ( 2012 )

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 FILED
establishing the defense of res judicata, Jan 25 2012, 8:51 am
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
AMY O. CARSON THOMAS J. LANTZ
Mitchell & Associates Montgomery, Elsner & Pardieck
Indianapolis, Indiana Seymour, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL D. PERKINSON, JR., )
)
Appellant-Petitioner, )
)
vs. ) No. 36A05-1106-DR-322
)
KAY CHAR PERKINSON, )
)
Appellee-Respondent. )
APPEAL FROM THE JACKSON SUPERIOR COURT
The Honorable Jon W. Webster, Special Judge
Cause No. 36D02-0803-DR-295
January 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Michael D. Perkinson, Jr. (“Father”), appeals from the denial of a motion to correct
error that challenged the trial court’s order denying his verified petition for modification of
parenting time and support, raising the sole issue of whether the trial court’s decision has
sufficient evidentiary support in the record.
We reverse and remand.
Facts and Procedural History
Father married Kay Char Perkinson (“Mother”) in 2004. Mother became pregnant
with their child, L.P., during the course of the marriage. In August 2005, Mother gave birth
to L.P. Father filed a petition for dissolution of the marriage in September 2005, and Father
exercised parenting time with L.P. during the pendency of the dissolution proceeding. Also
during the course of the marriage, Father exercised parenting time with a child, A.,1 from a
prior relationship. Father yelled and intimidated A. when punishing her during these visits,
attempted to use Mother to provide childcare for A. while Mother recuperated from
delivering L.P., and displayed poor parenting skills in his care of both A. and L.P.
The dissolution decree, entered on February 21, 2006, distributed marital assets and
debts between Father and Mother and required Father to make weekly support payments for
L.P. Father was at that time experiencing financial distress and entered into an agreement
with Mother in which he agreed to waive his rights to parenting time. In exchange for
Father’s waiver, Mother assumed sole financial responsibility for the portion of the marital
1
No last name is provided in the record.
2
debts allocated to Father in the dissolution decree and would waive enforcement of Father’s
child support arrearage. The agreement also provided that if Father sought to obtain
parenting time, “he shall be obligated to pay any support arrearage through the date of the
approval” of the agreement by the trial court. (Appellant’s App. 64.) The dissolution court
approved the agreement on March 10, 2006.
On February 26, 2008, Father filed a verified petition for modification of parenting
time, seeking to reestablish visitation with L.P. The trial court denied that petition on April
21, 2008. On December 13, 2010, Father filed a second verified petition for modification of
parenting time. On March 7, 2011, a hearing was conducted on the petition, during which
Father, Mother, and Father’s new wife testified. The following day, the trial court entered
findings and conclusions sua sponte, in which it found that if Father were to exercise
parenting time rights with L.P., it would result in significant emotional harm to L.P. The
court therefore denied his petition.
Father submitted a motion to correct error on March 28, 2011. On June 16, 2011, oral
argument was conducted on the motion and the trial court denied Father’s motion to correct
error the same day.
This appeal followed. Additional facts will be provided as necessary.
Discussion and Decision
Father appeals from the trial court’s denial of his motion to correct error, which itself
challenged the trial court’s denial of his petition for modification of parenting time, which
the trial court entered in the form of findings and conclusions. We review a trial court’s
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decision on a motion to correct error for an abuse of discretion, reversing only where the trial
court’s judgment is clearly against the logic and effect of the facts and circumstances before
it or where the trial court errs on a matter of law. Hawkins v. Cannon, 826 N.E.2d 658, 662
(Ind. Ct. App. 2005), trans. denied.
Our standard of review as to the underlying findings and conclusions is also well
settled:
When the trial court enters findings sua sponte, the specific findings control
only as to the issues they cover, while a general judgment standard applies to
any issue upon which the court has not found. Brinkmann v. Brinkmann, 772
N.E.2d 441, 444 (Ind. Ct. App. 2002). The specific findings will not be set
aside unless they are clearly erroneous, and we will affirm the general
judgment on any legal theory supported by the evidence. Hanson v. Spolnik,
685 N.E.2d 71, 76 (Ind. Ct. App. 1997), trans. denied. A finding is clearly
erroneous when there are no facts or inferences drawn therefrom that support
it. Id. at 76–77. In reviewing the trial court’s findings, we neither reweigh the
evidence nor judge the credibility of the witnesses. Id. at 77. Rather, we
consider only the evidence and reasonable inferences drawn therefrom that
support the findings. Id.Julie C. v. Andrew C., 924 N.E.2d 1249, 1255-56 (Ind. Ct. App. 2010). We review the trial
court’s legal conclusions de novo. Mansfield v. McShurley, 911 N.E.2d 581, 589 (Ind. Ct.
App. 2009).
Here, Father appeals the trial court’s order, which declined to reinstate parenting time
after a prior order that wholly eliminated his parenting time. “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.“Indiana has long recognized that the right[] of parents to visit their children is a
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precious privilege that should be enjoyed by noncustodial parents,” and thus a noncustodial
parent is “generally entitled to reasonable visitation rights.” Duncan v. Duncan, 843 N.E.2d
966, 969 (Ind. Ct. App. 2006) (citing, inter alia, I.C. § 31-17-4-1), trans. denied. Indiana
Code section 31-17-4-2 governs the modification and restriction of parenting time:
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.
Ind. Code § 31-17-4-2. Although section 31-17-4-2 uses the phrase “might endanger,” we
have previously held the language to mean that a trial court “may not restrict parenting time
unless that parenting time ‘would’ endanger” the child’s health or emotional development.
D.B. v. M.B.V., 913 N.E.2d 1271, 1274-75 (Ind. Ct. App. 2009), reh’g denied. A party
seeking to restrict parenting time “bears the burden of presenting evidence justifying such a
restriction.” Id.In D.B., we reviewed a trial court’s decision that ordered a father to have no parenting
time with his adolescent children and to comply with no-contact orders as to the children and
their mother. Id. at 1274. In our opinion, we surveyed case law and observed that even in
cases where a parent had been accused of abusing a child, parenting time was permissible
where the evidence of abuse was conflicting or did not permit a finding that visitation would
impair a child’s physical health or emotional development. Id. at 1275 (citing Duncan, supra;Farrell v. Littell, 790 N.E.2d 612 (Ind. Ct. App. 2003); K.B. v. S.B., 415 N.E.2d 749 (Ind. Ct.
App. 1981)). We therefore reversed the trial court’s decision in D.B. and held, “the record
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disclosing the past interaction between Father and his children does not approach the
egregious circumstances in which we have previously found that parenting time may be
terminated, such as when a parent sexually molests a child.” Id. at 1275. We went on to
state that supervised parenting time would be appropriate in light of the past volatility of the
relationship between the father and his children. Id.
In the present case, Mother testified that Father had asked her to get an abortion upon
learning of her pregnancy with L.P., a fact that Father conceded and which led to the
dissolution of their marriage. Father displayed poor parenting skills during the marriage and
the pendency of the divorce, including “yell[ing] and scream[ing]” at A., “verbally berating
her,” and being “very intimidating” toward her. (Tr. 56.) Mother testified that Father
attempted to use Mother for childcare of A. while Mother was hospitalized and recuperating
from L.P.’s birth, requested numerous times that she alleviate his child support and parenting
time obligations, and failed to properly feed and care for L.P. when she was an infant. In
2006, Father agreed to forego parenting time in exchange for Mother’s assumption of
financial responsibility for that portion of the marital debt assigned to Father in the
dissolution decree and her waiver of enforcement of his child support obligations. The trial
court assigned very significant weight to that fact in reaching its decision, asking in a
footnote, “How do you explain to a six (6) year old that her father exchanged time with her
for money”?2 (Appellant’s App. 10.) Father has had no direct contact with L.P. since 2006,
though he has sent packages of clothes to her and attempted to correspond with Mother about
2
While we are uncertain that the agreement between Mother and Father would be enforceable of itself,
we reach no conclusion on that issue, as we reverse the trial court’s decision on other grounds.
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reinstating parenting time.
In light of these facts, we find D.B. instructive. Father’s conduct does not rise to the
level of abuse we have previously held was necessary to effect the denial of parenting time,
and thus there is insufficient evidence to support the trial court’s finding that parenting time
with Father will endanger L.P.’s physical health or significantly impair her emotional
development. Cf. D.B., 913 N.E.2d at 1275 (surveying this court’s decisions affirming trial
court orders eliminating parenting time on the basis of substantiated allegations of abuse, but
reversing orders where allegations were unsubstantiated or where relationships between
children and parents were under heavy strain). While Father’s prior actions do not put his
parenting skills and decision making in the best light, we cannot conclude that there was
sufficient evidence that his conduct was so egregious as to warrant total elimination of his
parenting time under section 31-17-4-2, particularly where Father’s most worrying conduct
occurred more than five years prior to the trial court’s decision in this case.
We therefore reverse the trial court’s denial of Father’s motion to correct error and its
underlying denial of his petition for modification of parenting time, and remand to the trial
court for further proceedings.3 To the extent there are questions with respect to Father’s
parenting skills or the emotional impact of a reunification upon L.P., we leave the question of
supervision of visits and other such options to the discretion of the trial court.4
3
We reach no conclusion on the merits of Father’s written proposal for phased-in increases in parenting
time, which he presented to the trial court.
4
Father testified that he would be willing to engage in counseling to aid in this process.
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Reversed and remanded.
BAKER, J., and DARDEN, J., concur.
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