Michelle Powell v. Timothy Powell (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 22 2016, 8:28 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cynthia P. Helfrich Robert J. Arnold
Helfrich & Harrell, LLC Shelbyville, Indiana
Avon, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michelle Powell, November 22, 2016
Appellant-Petitioner, Court of Appeals Case No.
32A05-1603-DR-674
v. Appeal from the Hendricks
Superior Court
Timothy Powell, The Honorable Rhett M. Stuard,
Appellee-Respondent. Judge
Trial Court Cause No.
32D02-1508-DR-554
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, Michelle Powell (Mother), appeals the trial court’s Order,
which modified custody and parenting time with the minor child, P.P. (Child),
and denied Appellee-Respondent’s, Timothy Powell (Father), petition for
contempt.
[2] We affirm.
ISSUES
[3] Mother raises three issues on appeal, which we consolidate and restate as
follows:
(1) Whether the trial court deprived Mother of due process during the
hearing; and
(2) Whether Father established a substantial change in circumstances
warranting the modification of physical custody and parenting time of
the Child.
FACTS AND PROCEDURAL HISTORY
[4] Mother and Father were married but separated in 2010, with the dissolution of
marriage decree entered on September 27, 2010. During the parties’ marriage,
one Child was born on April 19, 2006. Father remarried in 2012 to Dawn
Powell (Step-Mother). Step-Mother has one child from a prior relationship,
Step-Sister, who lives with Father and Step-Mother. On August 13, 2012,
Father and Mother entered into a mediated agreement on custody and
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parenting time, pursuant to which the parties shared legal custody with Mother
having primary physical custody and Father receiving parenting time. In
practice, the parties established a split parenting time schedule, which allowed
the Child to spend equal time with both parents, resulting in a de facto joint
physical custody. Specifically, P.P. would be with Father on Tuesdays and
Thursdays after school and overnight until the following morning and with
Mother on Mondays and Wednesdays after school and overnight. The Child
would alternate Friday and Saturday overnights with her parents, but would
always be back at Mother’s home by 6:00 p.m. on Sunday and spend every
Sunday overnight at Mother’s residence. The parties would alternate weeks
during summer break and would follow the Indiana ParentalTime Guidelines
for all other holidays and school breaks.
[5] On April 22, 2015, Father was fired from his job and was unemployed until
August 3, 2015, when he accepted a new position, in which he earned
considerably less. Although Father was unemployed during summer break,
Mother was reluctant to allow Father extra parenting time, instead preferring
that the Child spend time with Mother’s father or in summer camps.
[6] Communication between Mother and Father has become difficult. Messages
between the parents, including Step-Mother, are not responded to or are
responded to very late. This has resulted in missed opportunities for the Child.
While the mediated agreement set Mother a deadline of May 1 to give Father
notice of her requested weeks of summer parenting time, in 2015, Mother
waited until 10:00 p.m. on May 1 to provide Father with this information.
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[7] The Child has traditionally been involved in several extracurricular activities,
including Irish Dance, basketball, softball, girl scouts, piano, violin, and dance.
Some of these activities took place exclusively during Mother’s parenting time,
while others occurred during both Mother’s and Father’s parenting time. The
Child is a good student and made last school year’s Honor Roll. She does not
display any emotional or behavioral issues.
[8] On May 22, 2015, Father filed a verified petition for modification of decree,
modification of child support, contempt, and for attorney fees. Mother moved
for a change of judge and filed a motion to strike Father’s petition for contempt
citation because it failed to comply with the requirements of Indiana Code
section 34-47-3-5. The trial court granted both of Mother’s motions and struck
Father’s contempt petition. On August 28, 2015, Father’s verified petition for
modification of decree and modification of child support were unsuccessfully
submitted to mediation. On October 2, 2015, Mother filed a verified motion for
contempt. The trial court set all pending motions for a hearing on January 8,
2016, and allotted two hours of time. On December 14, 2015, Mother filed a
verified motion to modify parenting time, which the trial court added to the
hearing date without scheduling extra time. On December 31, 2015, Father
filed an amended verified petition for modification of decree, contempt, and
attorney fees, which the trial court set for hearing at the same time as all other
motions on January 8, 2016. No additional time was allotted.
[9] At the onset of the hearing on January 8, 2016, Mother objected to the trial
court hearing Father’s motion filed on December 31, 2015 due to lack of notice,
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lack of opportunity to obtain discovery, and insufficiency of time allotted in
light of the number of issues already scheduled. The trial court overruled
Mother’s objection and subsequently denied her request for continuance.
Ultimately, the trial court allowed the parties an additional thirty minutes of
time for the presentation of issues.
[10] On February 2, 2016, the trial court issued its Order, entering special findings of
fact and conclusions thereon, finding, in pertinent part:
3. There has been a substantial and continuing change in
circumstances of the parties and the minor child, so substantial
and so continuing as to make the current Decree unreasonable,
and requiring modification of the Decree, including and not
limited to [F]ather losing his job and now making $20,000 less
than previously, the continued disagreement of the parties
regarding scheduling, and the continued effect all of this is having
on the physical and mental health of the child.
****
5. Certain disputes have arisen, which have brought into focus
several areas which need to change for the benefit of [the Child].
Further, the [c]ourt finds that both parties have placed their own
selfish desires, particularly the desire to have everything their
way, above the best interests of [the Child]. Therefore, the
[c]ourt has no choice but to alter the way the parties deal with
each other and their daughter.
6. It has become problematic for [the Child] to spend every other
night during the week at a different parent’s household. The
transfers have caused problems with transportation and
scheduling, as well as activities and planning. Spending every
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other night with a different parent during the week has become
contrary to [the Child’s] best interest.
7. The parents generally remain committed to joint legal and
physical custody of [the Child]. For purposes of holiday
visitation ONLY, Mother shall be considered the custodial
parent.
8 It is in the best interest of [the Child] [] to be with one parent
for one week, and the other parent the next week. Therefore,
effective as of 6:00 p.m. the first Sunday after this order is issued,
regardless of the current parenting time schedule, Mother shall
have [the Child] for one week. At 6:00 p.m. the following week,
Father shall pickup [the Child] and have [the Child] for one week
and so on. Each party will pick up [the Child] at the start of their
scheduled parenting time.
9. This schedule shall continue throughout the summer except
that each party shall have at least 2 uninterrupted weeks with [the
Child] during her summer vacation. Father shall notify Mother,
no later than 10:00 p.m. on April 1st of each year when he intends
to exercise his 2 week uninterrupted time with [the Child]. After
Father has made his selection, Mother shall notify Father no later
than 10:00 p.m. on May 1st of each year when she intends to
exercise her uninterrupted 2 weeks with [the Child].
****
16. It is in the best interest of the parties and the [C]hild that her
parents agree as to each activity [the Child] is enrolled in.
Moreover, it is not in [the Child’s] best interest, at the age of 9, to
be overscheduled. As such, each parent, after consultation with
the other, may enroll [the Child] in one extracurricular activity at
a time outside of school and shall bear the costs of the same. If
both parties do not agree on an extracurricular activity, then [the
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Child] will not participate in that activity. The parents are to
consult with each other and confer as to the best interest of [the
Child] so that the activity they choose will not unreasonably
interfere with the activity chosen by the other. Once the
extracurricular [activity] chosen by a party ends, that party may
enroll [the Child] in another activity. Each party will be
responsible for transporting [the Child] to any extracurricular
[activity] that falls during their parenting time, regardless of
which party selected it. Any activities [the Child] is currently
enrolled in, she may finish but neither party shall enroll [the
Child] in any additional activities without first consulting with
the other party under the guidelines set out above.
****
20. Because the [c]ourt finds that Father tried to comply with the
[c]ourt’s orders, in spite of being unemployed, and because the
[c]ourt finds that Mother did not willfully and intentionally
violate this [c]ourt’s previous orders, neither party is held in
contempt for any reason.
21. Mother shall allow [Step-Mother] to pick up [the Child]
when Father is out of town, on business for his scheduled
parenting time. It is in the best interest of [the Child] for [Step-
Mother] to be allowed to pick up and drop off [the Child] if
Father is temporarily not able to do so due to work obligations.
****
(Appellant’s App. pp. 85-90).
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[11] On March 2, 2016, Mother filed a motion to correct error. Five days later, on
March 7, 2016, the trial court issued its ruling on the motion to correct error,
clarifying, in pertinent part, that:
Finding number 21 in the [c]ourt’s order allows [Step-Mother] to
pick up [the Child] if Father is unable to do so for his parenting
time. If Father is out of town on business for two or more
consecutive nights at any time during [the child’s] visitation with
Father, [the Child] shall stay with Mother while Father is gone.
When Father returns home, if there is visitation time remaining
during Father’s week with [the Child], [the Child] shall return to
Father’s care until Mother’s visitation commences again.
(Appellant’s App. p. 111).
[12] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Due Process
[13] Although the trial court ruled in her favor, Mother disputes the trial court’s
underlying proceedings in the contempt issue, arguing that she was denied due
process because the trial court rejected her motion to continue and failed to
issue a rule to show cause with respect to Father’s contempt petition. Mother
does not allege that the contempt issue itself was decided erroneously.
[14] An appeal or issue can become moot in various ways: (1) when it is no longer
‘live’ or when the parties lack a legally cognizable interest in the outcome; (2)
when the principal questions in issue have ceased to be matters of real
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controversy between the parties; or (3) when the court on appeal is unable to
render effective relief upon an issue. Comm’r of Ind. Bureau of Motor Vehicles v.
Vawter, 45 N.E.3d 1200, 1209 (Ind. 2015). Because Mother does not challenge
the trial court’s conclusion on Father’s contempt petition, which was the
principal question in issue, any possible errors in the underlying proceedings
have become moot. Accordingly, we do “not retain jurisdiction to decide . . .
questions incidentally or indirectly involved in the appeal.” Modlin v. Bd. of
Com’rs of Grant Co., 103 N.E. 506, 508 (Ind. Ct. App. 1913).
[15] Moreover, even if we were to decide Mother’s issues on the merits, we would
reach the same result as the trial court. First, it is generally admitted that “if no
rule to show cause is issued in compliance with [the] statutes, a court may lack
the authority to hold a person in contempt.” Stanke v. Swickard, 43 N.E.3d 245,
248 (Ind. Ct. App. 2015). Nevertheless, “[s]trict compliance with the rule to
show cause may be excused if it is clear the alleged contemnor had clear notice
of the accusations against him, for example because he received a copy of an
original contempt information that contained detailed factual allegations, or if
he appears at the contempt hearing and admits to the factual basis for a
contempt finding.” Id. Our review of Father’s petition reveals that the petition
is very detailed in its description of Mother’s alleged instances of contempt. For
instance, Father refers to Mother’s inability to timely communicate about her
intentions of keeping the Child in Irish dance and her refusal to communicate
with Step-Mother about specific matters relating to the Child. Accordingly,
Mother was on notice with respect to the factual allegations lodged against her.
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[16] Mother also contested the trial court’s denial of her motion to continue Father’s
contempt petition to a later hearing because she feared not to have sufficient
time at the hearing to present all the issues and wanted to conduct extensive
discovery. The decision to grant or deny a motion for continuance is within the
sound discretion of the trial court. F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind.
Ct. App. 2012). We will reverse the trial court only for an abuse of that
discretion. Id. No abuse of discretion will be found when the moving party has
not shown that he was prejudiced by the denial. Id.
[17] At the hearing on January 8, 2016, the trial court heard evidence on the
following four motions: Father’s verified petition for modification of decree,
modification of child support, and for attorney fees; Father’s amended verified
petition for modification of decree, modification of child support, and for
attorney fees; Mother’s verified motion for rule to show cause and request for
emergency order on health insurance; and Mother’s verified motion for
modification of parenting time. Although the trial court had initially allotted
two hours to receive evidence, ultimately, the trial court extended the time to
present evidence with an extra thirty minutes. Our review of the record reveals
that the brunt of this time was used by Mother’s counsel to cross-examine
Father. We also recognize that during the parties’ presentation of their issues,
they did not focus on one single issue before continuing onto another topic but
rather introduced a mix of issues, covering the four different motions. This is
reflected in the trial court’s resulting Order: rather than subdividing its Order
into the different issues, the trial court issued findings of fact and conclusions
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thereon in one general Order related to all issues. In other words, because the
issues of contempt, custody, and parenting time are interconnected and
evidence related to one issue can also be used to establish the existence or
absence of another issue, the trial court granted sufficient time to the parties to
complete their presentation of the evidence. Moreover, the trial court’s denial
of Father’s contempt petition is a satisfactory indication that Mother was not
prejudiced by the denial of her motion for continuance. We affirm the trial
court’s denial of Father’s contempt petition.
II. Modification of Custody
A. Standard of Review
[18] We review a custody modification for an abuse of discretion with a “preference
for granting latitude and deference to our trial judges in family law matters.” In
re Paternity of T.P., 920 N.E.2d 726, 730 (Ind. Ct. App. 2010) (quoting In re
Paternity of K.I., 903 N.E.2d 453, 457 (Ind. 2009)), trans. denied. We understand
that appellate courts “are in a poor position to look at a cold transcript of the
record, and conclude that the trial judge . . . did not properly understand the
significance of the evidence, or that he should have found its preponderance or
the inference therefrom to be different from what he did.” Kirk v. Kirk, 770
N.E.2d 304, 307 (Ind. 2002) (citation omitted). Accordingly, “[o]n appeal it is
not enough that the evidence might support some other conclusion, but it must
positively require the conclusion contended for by appellant before there is a
basis for reversal.” Id. Thus, “[t]he burden of demonstrating that an existing
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custody arrangement should be modified rests with the party seeking the
modification.” In re Paternity of A.S., 948 N.E.2d 380, 386 (Ind. Ct. App. 2011).
This court will neither reweigh the evidence nor assess witness credibility, and
we will consider only the evidence that directly or by inference supports the trial
court’s judgment. Parks v. Grube, 934 N.E.2d 111, 114 (Ind. Ct. App. 2010).
B. Modification
[19] Mother contends that the trial court abused its discretion in modifying the
custody and parenting time schedule by granting each party a week on/week off
parenting time with the Child.
[20] Indiana Code section 31-17-2-21 provides that a trial court may not modify a
child custody order unless (1) the modification is in the best interests of the
child and (2) there is a substantial change in one or more of the factors that the
court may consider under Indiana Code section 31-17-2-8. These factors
include:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(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;
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(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.
(8) Evidence that the child has been cared for by a de facto
custodian . . . .
[21] Based on the evidence presented, Mother does not contest specific findings, but
instead generally argues that Father failed to establish a change in
circumstances sufficient to support a modification in custody and parenting
time. When interpreting the custody modification statute, our court explained
that the statute does not require the trial court to specify which factor or factors
have substantially changed. Kanach v. Rogers, 742 N.E.2d 987, 989 (Ind. Ct.
App. 2001). Instead, the trial court “must ‘consider’ the statutory factors and
find there has been a substantial change.” Id.
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[22] To find a substantial change in circumstances, the trial court focused on
Father’s changed employment situation, the continuing disagreement between
Mother and Father in scheduling the Child’s extracurricular activities, their
worsening communication skills, and the Child’s age.
[23] The record supports that Father testified that the current parenting schedule was
confusing to the Child with going back and forth between each residence daily.
He noted that summer visitation, when each parent had the Child for a full
week at a time, was more manageable for the Child. Although Mother stated
that the current schedule is workable, the trial court was entitled to give more
weight to Father’s testimony. Moreover, the current schedule caused problems
with transportation and scheduling, as well as planning the Child’s
extracurricular activities. Evidence submitted at trial indicates that at times
even the parents were confused as to who should pick up the Child, where
rescheduled sporting events had moved to, or who should sell girl scout
cookies. Furthermore, Father has been denied parenting time with the Child
while he was unemployed and available with Mother preferring to enroll the
Child in summer camp or to have the Child spend time with her maternal
grandfather.
[24] The evidence further establishes that over the years, communication between
Mother and Father has broken down. At the moment, daily communication
has become difficult, with the Parties not responding or responding late which
resulted in missed games and vacation opportunities for the Child. Mother has
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also refused to communicate with Step-Mother on mundane matters related to
re-scheduled games or health insurance.
[25] Based on the record, we agree that a significant change has occurred which
warrants a modification of physical custody. Specifically, in light of the Child’s
age and extensive extracurricular interests, a schedule whereby both parents
alternate days parenting the Child is no longer feasible. The increasingly
difficult communication and participation between the parents in parenting the
Child only adds to the justification of Father’s request for modification.
Accordingly, mindful of our deferential review, we affirm the trial court’s order.
CONCLUSION
[26] Based on the foregoing, we conclude that the trial court did not abuse its
discretion by modifying custody and parenting time of the Child.
[27] Affirmed.
[28] Bailey, J. and Barnes, J. concur
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