Michelle Miller (Ross) v. David Miller (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Oct 21 2020, 9:26 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Zechariah S. Landers Ryan L. Groves
Coldren, Frantz & Sprunger McKinney & Malapit Law
Portland, Indiana Muncie, Indiana
Cory M. Sprunger
Sprunger & Sprunger
Berne, Indiana
Veronica Nicholson
Sprunger & Sprunger
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michelle Miller (Ross), October 21, 2020
Appellant-Petitioner, Court of Appeals Case No.
20A-DR-882
v. Appeal from the Randolph Circuit
Court
David Miller, The Honorable Jay L. Toney,
Appellee-Respondent Judge
Trial Court Cause No.
68C01-0705-DR-207
Crone, Judge.
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Case Summary
[1] Following a protracted custody dispute between Michelle Miller Ross (Mother)
and David Miller (Father), the parties agreed to participate in a family therapy
program with a New York therapist chosen by Mother and to follow all of the
therapist’s reasonable recommendations. When the therapist issued her
recommendations, Father objected to them as unreasonable and filed a motion
to that effect in the trial court. After an evidentiary hearing, the trial court
issued an order ruling that the therapist’s recommendations are unreasonable
and therefore nonbinding. The court also denied Mother’s request for
attorney’s fees. Mother now appeals those rulings. We affirm.
Facts and Procedural History
[2] Mother and Father are the parents of two daughters, Mc.M. (Older Child), born
in December 2002, and Ms.M. (Younger Child), born in November 2006
(collectively the Children). When the couple divorced in 2008, the trial court
awarded Mother primary physical custody and ordered joint legal custody. In
March 2015, the Indiana Department of Child Services (DCS) removed the
Children from Mother’s care and placed them with Father based on a report of
Mother’s neglect and sexual abuse of Younger Child by Mother’s husband
M.R. (Stepfather). Immediately thereafter, Father filed a motion for emergency
temporary custody, which was granted, as well as a petition to modify the
dissolution decree with respect to custody and child support. DCS filed a
petition to have the Children adjudicated children in need of services. Mother
and Father agreed to have all parenting issues addressed in the CHINS
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proceedings, and in August 2016, Father was granted sole physical custody.
Mother was granted parenting time subject to the recommendations of the
therapists involved in the CHINS case.
[3] After the CHINS dismissal, in November 2017, Mother filed a petition to
modify custody, parenting time, and child support. Father filed a notice of
objection and a motion for in-camera interview, based on a DCS assessment
that substantiated the sexual abuse allegations against Stepfather. Respondent’s
Ex. E. In August 2018, Mother and Father entered into a settlement
agreement, which provided for an evaluation by a New York therapist chosen
by Mother. The therapist, Linda Gottlieb, owns a company specializing in
remedial therapy for families with parental alienation. The agreement between
Mother and Father reads, in relevant part,
12. Pending completion of Linda Gottlieb’s evaluation, she shall
immediately submit her findings and recommendation for the
scope and parameters of her proposed program based upon this
family’s specific set of circumstances to the Court.
13. Both Parties agree to follow Linda Gottlieb’s
recommendations, including any reasonable changes made
during the course of implementation of recommendations based
upon how the family is reacting to re-unification, unless that
Party can demonstrate that said recommendation is
unreasonable. The parties agree that the Court shall retain
authority to determine any changes in parenting time in the event
of a disagreement of the parties.
Appellant’s App. Vol. 2 at 52-53.
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[4] On October 29, 2018, the trial court approved the settlement agreement and
gave the parties ten days to object to any of Gottlieb’s recommendations, which
at that time were forthcoming. The next day, Gottlieb issued her
recommendations, which included relocating the Children to New York to
attend a four-day intervention with both Mother and Stepfather; a temporary or
permanent transfer to Mother of sole legal and physical custody; a ninety-day
no-contact period between the Children and Father, with an indefinite
extension of the no-contact period should Father fail to support Mother’s
relationship with the Children; that Father must attend education and therapy
services at Gottlieb’s New York facility to address his unsupportive behavior
and admit that alienation is a form of psychological child abuse; that Father
write the Children a letter, to be pre-approved by Gottlieb, on the importance of
having Mother in their lives and including a statement of Mother’s good
qualities; and that Father provide mementos and photographs showing
Mother’s involvement. Petitioner’s Ex. 10.
[5] On October 31, 2018, Father filed an objection to the recommendations and
requested a stay of the implementation of the program pending a hearing. He
challenged as unreasonable Gottlieb’s recommendations that Stepfather be
present and participate in the therapy with Mother and Children, that the
Children be relocated to New York during the school year, and that there be a
ninety-day ban on communication between Children and Father, subject to
extension at Gottlieb’s discretion. Appellant’s App. Vol. 2 at 56-59.
Additionally, Father alleged certain irregularities during the course of Gottlieb’s
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evaluation and challenged Gottlieb’s claims that he had engaged in severe
alienation and posed a danger to the Children. Id. at 59. Shortly thereafter,
Mother filed a motion for rule to show cause based on Father’s noncompliance
with Gottlieb’s recommendations. Following a December 4, 2018 hearing, the
trial court found that Father had not willfully failed to follow the court’s order
and denied Mother’s motion.
[6] The trial court conducted a series of hearings on the remaining pending motions
in early 2019, during which it admitted into evidence without objection the
DCS assessment substantiating the sexual abuse allegations against Stepfather.
Respondent’s Ex. E. Three therapists who had treated the Children over a
prolonged period testified that participation in Gottlieb’s program would impair
their emotional development and endanger their physical health. Dr. Paul
Spengler assessed Gottlieb’s parent alienation program and wrote a report,
concluding in part that Gottlieb’s judgments throughout her report reflect
extreme and unwarranted confidence and reflect what is known in clinical
judgment literature as overconfident bias. He testified that there is a debate in
the literature concerning the validity of parent alienation syndrome and noted
that Gottlieb’s conclusions were replete with “very extreme statements of
confidence.” Tr. Vol. 2 at 215-16. He also explained his observations of
Gottlieb’s methodology and, particularly, irregularities he found in Gottlieb’s
report, such as the lack of any assessment of risk factors. Id. at 228, 236. The
parties submitted their proposed findings and conclusions. In March 2020, the
trial court issued an order with findings of fact and conclusions thereon, ruling
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that Gottlieb’s recommendations were unreasonable and therefore nonbinding.
The court also denied requests by both parties for attorney’s fees. Mother filed
a motion to correct error, which the trial court denied. She now appeals.
Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – Mother has failed to demonstrate clear error in the
trial court’s conclusion that Gottlieb’s recommendations were
unreasonable and therefore nonbinding.
[7] Mother contends that the trial court erred in ruling that Gottlieb’s
recommendations were unreasonable. Where, as here, the trial court has issued
findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A),
we review them for clear error. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind.
2016). We will not set aside the court’s findings or judgment unless they are
clearly erroneous, meaning that there are no facts or reasonable inferences
drawn therefrom to support them. In re Marriage of Sutton, 16 N.E.3d 481, 485
(Ind. Ct. App. 2014). We give due regard to the trial court’s opportunity to
assess the credibility of witnesses and therefore consider only the evidence and
reasonable inferences favorable to the judgment without reweighing the
evidence or assessing witness credibility. Nelson v. Nelson, 10 N.E.3d 1283, 1285
(Ind. Ct. App. 2014). We do not defer to the trial court’s conclusions of law
and will find clear error if the court has applied the wrong legal standard.
Sexton v. Sexton, 970 N.E.2d 707, 710 (Ind. Ct. App. 2012), trans. denied.
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[8] Here, the trial court’s findings of fact include the following: 1
11. Ms. Gottlieb has indicated that the following stipulations by
Court order must include: 1) the child to accompany the rejected
parent to New York to attend the 4-day intervention at
[Gottlieb’s facility]; 2) a temporary or permanent order for the
transfer of sole physical and legal custody to the rejected parent;
3) a 90 day no-contact period between the child and the favored
parent; this must include all telephone and electronic
communications as well as physical contact; 4) a requirement for
the favored parent to accept parent education services with
[Gottlieb’s firm]; 5) the favored parent must write a letter to the
child stating the importance of having the rejected parent in the
child's life and in what specific ways; the qualities the rejected
parent has to offer the child; and that further, she/he supports the
reunification and why. This letter is to be approved by [Gottlieb]
before being given to the child; 5) the favored parent is to provide
the alienated parent with any mementos, videos, pictures, and
other materials indicative of the family history and of the
alienated parent’s involvement with their child to be used in the
intervention; 6) a provision for an indefinite extension of the no-
contact period should the favored parent fail to support the
rejected parent’s relationship with their child. [Gottlieb] will
collaborate with the favored parent’s support for the relationship
and will notify the court if so requested; 7) the favored parent is
to engage with a [Gottlieb]-approved therapist to address the
behaviors that had been unsupportive of the relationship between
the other parent and their child, to gain awareness that alienation
is a form of psychological child abuse, and to recognize that it is
in the child’s best interests for the other parent to be meaningfully
in the child’s life. Before the no-contact period can be lifted, the
therapist should provide documentation that the favored parent is
ready, willing, and able to support the relationship between the
1
The findings refer to the parties by name or party designation. We refer to them as previously indicated.
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other parent and their child and will abstain from alienating
behaviors. (The Court recognizes that there are two section 5’s in
this paragraph; that is the way it appears in the summary of Ms.
Gottlieb’s program, submitted as Exhibit 10 on March 19, 2019.)
….
15. Ms. Gottlieb reviewed what counsel for Mother describes as
the “clinical picture," including the Children’s statements,
Stepfather’s lie detector test results, therapy notes, and CHINS
records, and reached the conclusion that “the sex abuse
allegations (by Stepfather against Younger Child) lacked merit.”
16. The prosecuting attorney did not file criminal charges against
Stepfather regarding the sexual abuse allegations.
17. Younger Child first revealed the allegations of sexual abuse
to her stepmother, Sarah Miller.
18. Younger Child next disclosed the allegations of sexual abuse
to Father .…
19. Younger Child also disclosed sexual abuse allegations
against Stepfather in a forensic interview.
20. Younger Child reported to Aubrey Driscoll, therapist for the
girls collectively, and for Older Child individually, that she was
sexually abused by Stepfather.
….
22. That Older Child was in the home at the time Younger Child
indicates that Stepfather abused her.
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23. In the CHINS cases involving the minor children in Allen
Superior Court, the Court attached and incorporated into its
Order on Review Hearing dated September 8, 2016, the DCS
assessment regarding the sexual abuse allegations. The
Conclusion Statement to this Assessment states as follows:
“The Department finds that there is a preponderance of evidence
to support the allegations of sexual abuse of Younger Child by
the perpetrator Stepfather and the neglect of the Children by the
perpetrator Mother. The allegations dated 3/15/15 are
substantiated. Due to the fact that during a forensic interview
Younger Child disclosed penile and digital penetration of her
vagina. She was able to describe the incident in graphic detail
with descriptions that are not common for a child of her age to
have knowledge about. Younger Child was able to clearly
articulate what occurred, in a narrative style, that it was not
believed that she was coached to make this disclosure. Older
Child was able to corroborate Younger Child’s disclosure with
what she witnessed. In addition, both Children voiced concern
for being at Mother’s home due to physical discipline and
statements that were contrary to their emotional well[-]being.
Older Child went as far as to disclose that she had thoughts of
suicide if she were made to return to Mother’s home. The detail
that Older Child was able to describe also lead [sic] the team to
believe that she was not coached to make a disclosure. Mother
was explained the disclosures in detail and maintains that the
Children are lying and there is no truth to their disclosure. This
assessment is recommended to be transferred to the permanency
unit for further supervision.”
24. Stepfather would be included in the 4-day program with
Mother and the minor Children.
Appealed Order at 4-6.
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[9] Mother asserts that the trial court clearly erred because it failed to state the basis
for its determination that Gottlieb’s recommendations are unreasonable. She
claims by not enforcing the settlement agreement and requiring the parties to
submit to Gottlieb’s program, the trial court has “effectively terminated
Mother’s parenting time … without a single finding that [it] would be harmful
to the children, … endanger the children’s physical health, or … significantly
impair the children’s emotional development.” Reply Br. at 8. See Rickman v.
Rickman, 993 N.E.2d 1166, 1168 (Ind. Ct. App. 2013) (“A decision about
parenting time requires us to give foremost consideration to the best interests of
the child[ren].”). We disagree with Mother’s characterization. The trial court
was tasked with hearing and examining the underlying evidence and resolving a
specific question: were Gottlieb’s recommendations unreasonable and
therefore nonbinding? The court answered that question in the affirmative.
While it is true that Gottlieb’s recommendations implicated parenting time, at
least temporarily, the issue was not separately before the court because Mother
did not file a formal request for it. See Appealed Order at 3 (court’s
unchallenged finding, “there is no request for modification of parenting time
pending.”); see also Appellant’s App. Vol. 2 at 53 (settlement agreement
specifically vested trial court with the authority to make changes in parenting
time). Nothing prevented Mother from making such a filing.
[10] Even so, the findings and judgment as a whole indicate that the trial court
considered the Children’s best interests in assessing the (un)reasonableness of
Gottlieb’s recommendations. The court was careful not to indict Gottlieb’s
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program in general but instead concluded that the recommendations were
unreasonable for this specific family. Emphasizing the fact-sensitive nature of
its determination, the court articulated numerous bases for its decision:
Younger Child’s revelations to her therapists that Stepfather sexually abused
her (keeping in mind the different considerations involved in bringing criminal
charges versus substantiating allegations in the context of family law and
CHINS proceedings); Gottlieb’s conclusions concerning the abuse, which the
court characterized as “completely discount[ing] even the possibility that
[Younger Child] was sexually abused”; and the requirements that the Children
participate in Gottlieb’s program with Stepfather (the alleged abuser), in a
faraway state, under absolute isolation from Father and from home for at least
ninety days. Appealed Order at 8. The trial court essentially conducted a
totality-of-the-circumstances analysis, and as such, considered the Children’s
best interests. See Kirk v. Kirk, 770 N.E.2d 304, 308 (Ind. 2002) (determination
of child’s best interests requires court to focus on totality of circumstances).
[11] Alternatively, Mother contends that the trial court erred in not applying
contract principles to its review of the parties’ settlement agreement. She has
failed to develop a cogent argument on this claim as required by Indiana
Appellate Rule 46(A)(8) and has waived consideration of this argument. Basic
v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016). Waiver notwithstanding,
“freedom of contract principles that govern property settlements do not apply to
child support and child custody because of the ‘overriding policy concern [to]
protect[] the welfare and interests of children.’” Copple v. Swindle, 112 N.E.3d
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205, 211 (Ind. Ct. App. 2018) (quoting Voigt v. Voigt, 670 N.E.2d 1271, 1278
n.10 (Ind. 1996)). Even if the rules of contract interpretation were applicable,
the plain language of the settlement agreement would not work in Mother’s
favor, as it requires each party to follow Gottlieb’s recommendations “unless
that Party can demonstrate that said recommendation is unreasonable.”
Appellant’s App. Vol. 2 at 53. The court simply examined the evidence and
ruled that the terms of Gottlieb’s program were unreasonable. Mother’s
argument lacks merit.
[12] Additionally, Mother submits that the trial court erred in incorporating into its
findings a DCS assessment that substantiated the sexual abuse allegations
against Stepfather. See Appealed Order at 6 (finding 23). She challenges the
assessment on hearsay grounds. When Father introduced the assessment as
part of Respondent’s Exhibit E, Mother did not object. Tr. Vol. 2 at 247. She
therefore has waived consideration of this claim on appeal. See In re Paternity of
C.S., 964 N.E.2d 879, 886 (Ind. Ct. App. 2012) (Mother waived challenge to
trial court’s consideration of expert’s updated custody evaluation by failing to
object below), trans. denied. Mother now claims that what the court did below
actually amounted to taking judicial notice of CHINS records. She asserts that
a court may take judicial notice of the records but not of facts within those
records. Matter of D.P., 72 N.E.3d 976, 982-83 (Ind. Ct. App. 2017). Here, the
trial court first referenced judicially noticing the records from the CHINS case
but ultimately admitted the challenged portion of the DCS assessment of sexual
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abuse when it admitted Exhibit E. At no time did Mother object or ask for a
clarification from the trial court.
[13] Moreover, the record includes testimony from Father and from the Children’s
three therapists that the sexual abuse allegations had been substantiated. Father
articulated that it was the sexual abuse allegations (and Mother’s correlating
neglect) that precipitated the CHINS proceedings and emergency change of
custody to him. See Tr. Vol. 2 at 244 (Father’s testimony that “[Younger Child]
disclosed a sexual abuse against her stepfather. So, on that following day we
filed a police report and then on, I believe, it was the following Thursday,
[DCS] of Allen County conducted a forensic interview with the girls.”). Thus,
even if the underlying CHINS facts were improperly judicially noticed, the
critical fact that the sexual allegations were substantiated was peppered
throughout the record. Thus, the allegedly improper evidence was cumulative
of properly admitted evidence, and therefore its admission did not amount to
reversible error. See Matter of A.F., 69 N.E.3d 932, 942 (Ind. Ct. App. 2017)
(“Admission of hearsay evidence is not grounds for reversal where it is merely
cumulative of other evidence admitted.”), trans. denied. Based on the foregoing,
we conclude that Mother has failed to demonstrate clear error in the trial
court’s ruling that Gottlieb’s recommendations were unreasonable.
Section 2 – The trial court acted within its discretion in
concluding that Mother is not entitled to attorney’s fees.
[14] Mother also challenges the trial court’s decision not to award attorney’s fees. In
post-dissolution proceedings, the trial court has broad discretion in awarding
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attorney’s fees, and we review the trial court’s ruling for an abuse of discretion,
which occurs when the decision is against the logic and effect of the facts and
circumstances before it. Myers v. Myers (Phifer), 80 N.E.3d 932, 938 (Ind. Ct.
App. 2017). The trial court is not required to state its reasons for its decision to
award attorney’s fees. Id.
[15] “The general rule regarding attorney fees – known as the American Rule – is
that each party bears its own attorney fees.” Cavello v. Allied Physicians of
Michiana, LLC, 42 N.E.3d 995, 1006 (Ind. Ct. App. 2015). Among the
exceptions to the American Rule are attorney’s fee awards for frivolous,
unreasonable, or groundless actions and attorney’s fee awards in domestic
relations matters. Ind. Code §§ 34-52-1-1, 31-15-10-1. In any civil action, the
trial court may award attorney’s fees to the prevailing party if it finds that either
party brought the action or defense on a claim or defense that is frivolous,
unreasonable, or groundless. Ind. Code § 34-52-1-1(b)(1). In domestic relations
actions, the trial court may order attorney’s fees after considering factors such
as the relative resources, employability, and earning ability of the parties and
any misconduct by one party that directly results in the other party incurring
additional fees. Myers, 80 N.E.3d at 938.
[16] Here, both parties sought attorney’s fees, and the trial court concluded that
neither was entitled to them. Because Father did not cross-appeal this issue, we
address only Mother’s request for attorney’s fees. In evaluating Mother’s
request, the trial court specifically concluded, “if [Father] believes his daughter,
he is acting reasonably as well. He has followed Orders of the courts involved,
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and has prevented contact between the Children and [Stepfather]. This conduct
is exactly what would be expected from a parent in this position.” Appealed
Order at 9. On appeal, Mother focuses her fee request on what she
characterizes as a frivolous, groundless action by Father in filing his objection
to Gottlieb’s recommendations. A claim is frivolous if it is taken primarily to
harass the other party, it is unreasonable if no reasonable attorney would
consider the claim worthy of litigation, and it is groundless if no facts exist that
support the legal claim presented by the losing party. Waterfield v. Waterfield, 61
N.E.3d 314, 335-36 (Ind. Ct. App. 2016), trans. denied (2017). Mother was not
the prevailing party. Indiana Code Section 34-52-1-1 simply does not apply.
[17] That said, the trial court appeared to apply the considerations applicable in
domestic relations cases, and since Mother did not raise any argument
regarding the parties’ relative financial circumstances, the court simply
concluded that Father did not engage in misconduct but rather acted reasonably
in objecting to the recommendations and filing his objection within the ten-day
period prescribed by the court. As discussed, the issue before the trial court was
whether Gottlieb’s recommendations were unreasonable; the parties simply had
different opinions concerning the answer to that question. Father did not
engage in misconduct, let alone misconduct causing Mother to incur additional
fees. As such, the trial court acted within its discretion in denying Mother’s
request for attorney’s fees. Accordingly, we affirm.
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[18] Affirmed.
Robb, J., and Brown, J., concur.
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