Ashley E. Moore v. David A. Nacke (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 11 2017, 5:36 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Laura Boyer King Tia R. Brewer
Scott & Aplin LLC Marion, Indiana
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ashley E. Moore, May 11, 2017
Appellant-Defendant, Court of Appeals Case No.
27A04-1609-DR-2207
v. Appeal from the Grant Superior
Court
David A Nacke, The Honorable Warren Haas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D03-1307-DR-236
Brown, Judge.
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[1] Ashley E. Moore (“Mother”) appeals the trial court’s Order Modifying
Parenting Time in favor of David A. Nacke (“Father”). Mother raises two
issues, one of which we find dispositive and revise and restate as whether the
court abused its discretion by modifying Father’s parenting time. We reverse.
Facts and Procedural History
[2] Mother and Father were married on October 4, 2008, and divorced on May 23,
2014. They have two daughters born from the marriage: A.N, born in 2009,
and E.N., born in 2011 (the “Children”). The parties agreed that Mother would
have primary physical custody of the Children and that Mother and Father
would share joint legal custody. The dissolution decree awarded Father
parenting time every other week from Thursday at 1:00 p.m. to Sunday at 10:00
a.m., and then every other week from Thursday at 1:00 p.m. to Friday at 9:00
a.m., and additionally non-overnight midweek parenting time every
Wednesday, resulting in four overnight visits in the two-week schedule.
[3] Mother worked as a photographer, and she could perform about ninety percent
of her work from home. She schedules her photography sessions when the
Children are at school or gone. She has “maybe” two photo sessions away
from her home per week during the spring and summer, and in the winter she
sees “[m]aybe one (1) a month.” January 29, 2016 Transcript at 13.
[4] On November 18, 2015, Father filed a Petition to Modify Parenting Time, a
Petition for Citation, and a Motion for Change of Judge, in which he requested
that his Wednesday parenting time be modified to overnight visits for two
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additional overnights in the two-week schedule. Father’s request for a change
of judge was granted, and the case was transferred to Grant Superior Court 3.
On December 16, 2015, Mother filed a Petition to Modify Parenting Time and
Child Support, in which she requested that one Thursday be modified to non-
overnight midweek parenting time, which would result in one fewer overnight
for Father in the two-week schedule.
[5] On January 29, 2016, the court held a hearing on the parents’ petitions to
modify parenting time and child support. At the hearing, the parties came to an
agreement regarding the use of care providers for the Children and stipulated
that if either parent needed to leave the Children, it was acceptable for their
parents to care for the Children as part of that parent’s parenting time.
Following the stipulation, Father withdrew his Petition for a Citation.
[6] At the hearing, Father introduced a recorded telephone conversation between
him and Mother from November 5, 2015, which the trial court admitted over
Mother’s objection. During the call, Mother used foul language and insults,
including, “I am sick of you,” and “[y]ou’re an idiot. You’re a f------ idiot . . . .”
January 29, 2016 Transcript at 115-116. After hearing the recording, the court
stated, “[u]ntil I heard that recording, I thought I had two (2) marvelous parents
putting the needs of the children first in most cases, working with one another
well and, uh, unfortunately then the splash of water went on that. So that
makes it very difficult.” Id. at 120. The court further stated that Mother, “just
really, really, um, did poorly. And I’m expecting better of you,” and after
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Mother expressed disappointment in herself, the court continued: “Good. So,
this is a great chance to do better.” Id.
[7] On February 3, 2016, the court issued an Order Modifying Parenting Time
stating in part:
4. Mother is self-employed as a professional photographer
and is often busy working in that capacity on weekends. . .
.
5. The parties are equally good when it comes to providing
care, love, and attention to the children.
6. At some point Mother began using Father’s desire for
“extra” parenting time as a club or leverage against him,
instead of putting the best interests of the children first.
The Court finds it necessary to modify the existing
parenting time orders. To best accommodate the parties’
schedules, the Court modifies the parenting time order as
follows:
A. Every other week from Thursday at 3:00 p.m. until
Sunday at 5:00 p.m. Father is not required to take
the children to church, but may do so, if he wishes.
B. Every other week from Thursday at 3:00 p.m. until
Sunday at 8:00 a.m. This will make it possible for
Mother to take the children to church on that
Sunday.
C. The other provisions of the Parenting Time
Guidelines are incorporated. . . .
Appellant’s Appendix Volume II at 14.
[8] On February 11, 2016, Mother filed a Motion to Clarify Order Modifying
Parenting Time concerning the court’s ruling as it pertained to the summer
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months, and on March 4, 2016, Mother filed a notice of appeal. On July 7,
2016, this Court entered an order dismissing the appeal, without prejudice,
because the February 3, 2016 order was not a final appealable order. The trial
court held a hearing on August 24, 2016, during which the court stated that
“the parenting time was actually designed to . . . work around [Mother’s]
choice of being a professional photographer.” August 24, 2016 Transcript at 4.
On August 25, 2016, Mother filed an Amended Motion for Change of Judge,
and the motion was denied the next day.
[9] On August 26, 2016, the court issued an Order Modifying Child Support and
Clarifying Parenting Time stating that “summer parenting time was to be 1 full
week with Father and 1 full week with Mother during the girls’ summer
vacation from school.” Appellant’s Appendix Volume II at 22. The court also
stated in its order as follows:
Happily, it seems Mother and Father are good parents and have
created a loving environment for their children despite their
personal and courtroom disputes.
*****
The parenting time order was the Court’s effort to reduce
uncertainty and to accommodate Mother’s work schedule as a
professional photographer. The traditional parenting time order
didn’t work for Mother and she was using Father’s parenting
time as a vehicle to punish Father. During her testimony on
January 29, 2016, and again on August 24, 2016, the Court was
impressed with how pleasant, professional, and caring she
presented herself to be. Unfortunately, outside the courtroom her
demeanor was quite different.
*****
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Despite the differences presented at the hearings, Mother and
Father both appear to genuinely care for their children and the
current parenting time order seems to be working for them and
the children.
Id. at 17, 19, 23. The order included a transcript of the November 5, 2015
recorded phone conversation, and afterward the court stated: “The only thing
missing from the transcript is the terrible and hateful way Mother made those
statements to Father trying to control his contact with the children, the
undersigned felt and feels that the parenting time orders entered on February 3,
2016, were and are necessary.” Id. at 22.
Discussion
[10] The issue is whether the court abused its discretion by modifying Father’s
parenting time. Where, as here, the court entered findings sua sponte, such
findings control only as to the issues they cover, and a general judgment will
control as to the issues upon which there are no findings. Yanoff v. Muncy, 688
N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made findings of fact,
we apply the following two-tier standard of review: We determine whether the
evidence supports the findings of fact, and whether the findings of fact support
the conclusions thereon. Id. Findings will be set aside if they are clearly
erroneous. Id. “Findings are clearly erroneous only when the record contains
no facts to support them either directly or by inference.” Id. A judgment is
clearly erroneous if it applies the wrong legal standard to properly found facts.
Id. To determine that a finding or conclusion is clearly erroneous, our review of
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the evidence must leave us with the firm conviction that a mistake has been
made. Id. “A general judgment entered with findings will be affirmed if it can
be sustained on any legal theory supported by the evidence.” Id.[11] A decision about parenting time requires us to “give foremost consideration to
the best interests of the child.” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.
2013) (quoting Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App. 1998),
trans. denied); see also Ind. Code § 31-17-4-2 (“The court may modify an order
granting or denying parenting time rights whenever modification would serve
the best interests of the child. . . .”). Parenting time decisions are reviewed for
an abuse of discretion. Perkinson, 989 N.E.2d at 761. Judgments in custody
matters typically turn on the facts and will be set aside only when they are
clearly erroneous. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). “We
will not substitute our own judgment if any evidence or legitimate inferences
support the trial court’s judgment.” Id. at 1257-1258. A trial court’s finding
that modification is in a child’s best interest must be either explicit or implicit in
its order. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 458 (Ind. 2009).
[12] Mother asserts that the trial court abused its discretion in modifying parenting
time in favor of Father where it made no finding that a modification was in the
Children’s best interest. She argues that the court “modified the parents’
parenting time radically by removing Fridays and Saturdays from [her]
schedule altogether” and that there was no evidence such modification was in
the Children’s best interest. Appellant’s Brief at 19. She contends that the
court’s express purpose of the modification was to accommodate her work
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schedule, which is not a proper basis for modification, nor was it supported by
the evidence. She further argues that the modification was a result of the
court’s opinion of her after hearing the November 5, 2015 recording.
[13] Father contends the court did not abuse its discretion and that the findings
supported the modification because “[t]he evidence support [sic] the inference
that Mother having control over granting or denial of additional parenting time
was used a [sic] leverage or a weapon against Father.” Appellee’s Brief at 9.
He asserts that although the court may not have used the specific language, “the
evidence presented clearly supports the trial court’s decision and that decision is
in the best interest of the children.” Id.[14] We find that the court failed to articulate how the parenting time modification
would serve the Children’s best interest. In analyzing the best interests of the
children under Ind. Code § 31-17-4-2, it is appropriate to examine the factors
enunciated in Ind. Code § 31-17-2-8. See In re Paternity of Snyder, 26 N.E.3d 996,
998 (Ind. Ct. App. 2015) (noting that considering the factors in Ind. Code § 31-
17-2-8 is appropriate in analyzing the child’s best interests under Ind. Code §
31-17-4-2); see also Milcherska v. Hoerstman, 56 N.E.3d 634, 638 (Ind. Ct. App.
2016) (noting that the factors listed in Ind. Code § 31-17-2-8 apply when
analyzing the best interests of the child in family law matters). Ind. Code § 31-
17-2-8 lists the following factors for determining the best interests of the child:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
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(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.
(7) Evidence of a pattern of domestic or family violence by
either parent. . . .
[15] The primary reason given by the court in modifying Father’s parenting time
was Mother’s work schedule. In its February 3, 2016 Order Modifying
Parenting Time, it stated that the modification was ordered “[t]o best
accommodate the parties’ schedules . . . .” Appellant’s Appendix Volume II at
14. In its August 26, 2016 Order Modifying Child Support and Clarifying
Parenting Time, it reiterated that, “[t]he parenting time order was the Court’s
effort to reduce uncertainty and to accommodate Mother’s work schedule . . . .”
Id. at 19. However, there was no evidence presented that Mother’s work
schedule was having a detrimental effect on the Children, or even that her work
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interfered with her time with the Children. Indeed, Father’s motion did not
even request additional weekend parenting time and instead focused on
changing his Wednesday parenting time to overnights. In the absence of such
evidence demonstrating that the modified parenting time schedule serves the
Children’s best interest, we do not find that the trial court had a proper basis
upon which to modify Father’s parenting time.
[16] In addition to Mother’s work schedule, the court indicated in its orders that it
modified Father’s parenting time due to its perception that “Mother began
using Father’s desire for ‘extra’ parenting time as a club or leverage against him,
instead of putting the best interests of the children first.” Id. at 14. In its August
26, 2016 order, the court took the unusual step of transcribing the November 5,
2015 recording and included its observation that “[t]he only thing missing from
the transcript is the terrible and hateful way Mother made those statements to
Father trying to control his contact with the children . . . .” Id. at 22. Again,
however, the court did not modify Father’s parenting time in the manner he
requested, and it did not explain how the schedule it set, particularly as opposed
to ordering Wednesday overnights as Father requested, better serves the
Children’s best interest. We find that the parenting time modification orders,
which eliminated entirely Mother’s parenting time on Fridays and Saturdays
during the school year, were crafted in part to punish Mother.
[17] In its February 3, 2016 order, the court made a specific finding that “[t]he
parties are equally good when it comes to providing care, love, and attention to
the children.” Id. at 14. In its August 26, 2016 order, it found that “Mother
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and Father are good parents and have created a loving environment for their
children despite their personal and courtroom disputes,” and “Mother and
Father both appear to genuinely care for their children . . . .” Id. at 17, 23. As
discussed, the court did not provide reasons for modifying Father’s parenting
time on bases that relate to serving the Children’s best interest. We therefore
conclude that the court abused its discretion when it modified Father’s
parenting time. We reverse the court’s orders and reinstate the previous
parenting time schedule provided in the dissolution decree. The court’s order
modifying child support, contained in the August 26, 2016 order and predicated
on the parenting time modification, is also reversed. 1
Conclusion
[18] For the foregoing reasons, we reverse the court’s orders modifying Father’s
parenting time and child support.
[19] Reversed.
Vaidik, C.J., and Bradford, J., concur.
1
We note that evidence was presented at the August 24, 2016 hearing that since the court’s initial February
3, 2016 order, Mother has ceased pursuing employment as a photographer and now is employed by the same
school the Children attend as a “technician teacher,” in which she teaches “anything like computer or media
wise to students.” August 24, 2016 Transcript at 15.
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