Michael L. Turner v. Jennifer D. Pence (mem. dec.)

MEMORANDUM DECISION
Mar 12 2015, 10:26 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Michael L. Turner Gregory F. Zoeller
Ossian, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael L. Turner, March 12, 2015
Appellant-Petitioner, Court of Appeals Case No.
90A04-1404-DR-190
v. Appeal from the Wells Circuit
Court.
Jennifer D. Pence, The Honorable Kenton W. Kiracofe,
Judge.
Appellee-Respondent.
Cause No. 90C01-0509-DR-49
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, M.L.T. (Father), appeals the trial court’s Order, denying
his petition to modify child custody, child support, and parenting time.
[2] We affirm.
ISSUES
[3] Father raises eleven issues on appeal, which we consolidate and restate as the
following three issues:
(1) Whether the trial court abused its discretion by denying Father’s petition to
modify child custody, child support, and parenting time;
(2) Whether the trial court erred by failing to address a subsequently filed
petition to modify child support; and
(3) Whether the trial court abused its discretion by holding Father in contempt.
FACTS AND PROCEDURAL HISTORY
[4] On September 8, 2005, Father filed a petition to dissolve his five-year marriage
to Appellee-Respondent, J.D.P. (Mother). Throughout the marriage, the
parties lived in Wells County, Indiana. They have two children together: a
daughter, M.T., born July 5, 2000, and a son, G.T., born July 5, 2004
(collectively, Children). On December 1, 2006, pursuant to a Marital
Settlement Agreement (Agreement), the trial court issued a decree of
dissolution.
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[5] The Agreement provided that Father and Mother would share joint legal
custody of the Children, with Mother having primary physical custody. Father
would exercise parenting time “at all reasonable times agreed upon by the
parties” or, in the event of a disagreement, in accordance with the Indiana
Parenting Time Guidelines (Guidelines). (Appellant’s App. p. 6). By
November of 2008, the Children were spending equal time with each parent.
Thereafter, the parties’ co-parenting relationship began to deteriorate. At some
point, Father became delinquent in his child support obligation, so Mother
applied for enforcement assistance through the Title IV-D Child Support
Program (Title IV-D Program).
[6] On January 16, 2009, Father filed a petition to modify custody and child
support and to establish parenting time (Petition #1), as well as a verified
petition for contempt against Mother. On June 15, 2009, the trial court held a
hearing on Father’s Petition #1 and the contempt motion. Taking the matter
under advisement, the trial court ordered the parties to submit briefs concerning
their rights and obligations as joint custodians and addressing the issue of
contempt. Neither party filed a brief, and no further action was taken.
[7] More than a year later, on July 21, 2010, Father filed a second petition to
modify child support and parenting time (Petition #2), and a hearing was held
on March 29, 2011. On June 8, 2011, the trial court issued an order, denying
Petition #2. Also, after realizing that there had never been a ruling on Father’s
Petition #1, the trial court denied the modification and contempt requests based
on the parties’ failure to submit the briefs as ordered.
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[8] In August of 2011, due to a strained relationship between Mother and eleven-
year-old M.T., the parties orally agreed that M.T. would live with Father for six
months, during which time Mother would exercise parenting time. After the
six-month period expired, M.T. continued to live with Father. Despite
Mother’s efforts to exercise parenting time, M.T. consistently refused to go.
[9] On September 4, 2012, Mother filed a notice of intent to relocate to another
town in Wells County. On October 30, 2012, Father filed an objection to the
relocation and also filed another petition to modify child custody, child support,
and parenting time (Petition #3). On November 26, 2012, Mother filed a
petition to enforce her right to have parenting time with M.T., and on January,
22, 2013, she filed a citation for contempt against Father. On March 15, 2013,
the trial court held a hearing on Mother’s petition to enforce parenting time.
On May 6, 2013, the trial court issued an order for parenting time, mediation,
and for Mother and M.T. to participate in joint therapy.
[10] On June 5, 2013, the Wells County Title IV-D Program filed a petition to
modify child support (Title IV-D Petition). On August 5, 2013, the trial court
held a hearing on the issue of Mother’s proposed relocation. On August 9,
2013, the trial court issued an order and, finding that Mother had established a
good faith, legitimate purpose for relocating eighteen miles away, approved her
request to relocate and to enroll G.T. in a new school.
[11] On November 1 and December 17, 2013, the trial court conducted a hearing on
Father’s Petition #3 and Mother’s contempt petition. Each parent sought sole
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legal custody and primary physical custody of the Children. Between the
hearing dates, on November 25, 2013, Father filed a petition for contempt
against Mother for denying him parenting time with G.T. After Father
presented evidence on his contempt petition, Mother moved for a “directed
verdict[,]” which the trial court granted. (Tr. p. 311). On January 24, 2014, the
trial court issued its Order, granting Mother sole legal and primary physical
custody of the Children, awarding Father with parenting time in accordance
with the Guidelines, and declining to modify the amount of Father’s child
support obligation. The trial court also held Father in contempt of court for
interfering with the relationship between Mother and M.T. and directed him to
pay $1,000 toward Mother’s attorney fees. On February 24, 2014, Father filed
a motion to correct error. On March 27, 2014, the trial court denied Father’s
motion and, finding it to be “pointless, without merit, submitted in bad faith,
mocks the [c]ourt, and is not supported by law or substantive facts[,]” ordered
him to pay an additional $500 toward Mother’s attorney fees. (Appellant’s
App. p. 98).
[12] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[13] At the outset, we note that Mother has not filed an appellee’s brief. However,
the State—on behalf of the Title IV-D Program—filed a brief solely regarding
the issue of child support. Accordingly, as to the issues not covered by an
appellee’s brief, our court applies “a less stringent standard of review with
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respect to showings or reversible error.” Van Wieren v. Van Wieren, 858 N.E.2d
216, 221 (Ind. Ct. App. 2006). Thus, we may reverse the trial court’s judgment
if Father’s brief “presents a prima facie case of error.” Id. Prima facie error
means “error at first sight, on first appearance, or on the face of it.” Id.II. Petition #3
[14] Father first claims that the trial court abused its discretion by denying his
Petition #3 to modify child custody, child support, and parenting time. We
find that Father’s claim lacks well-organized, cogently-reasoned arguments and
is entirely devoid of citations to authority. Ind. Appellate Rule 46(A)(8))(a).
Nevertheless, we recognize the significant interests at stake in family law
matters and the importance of finality. See Baxendale v. Raich, 878 N.E.2d 1252,
1258 (Ind. 2008). Therefore, to the extent we are able, we will address Father’s
issues.1
A. Custody Modification
[15] We review custody modifications for an abuse of discretion, with a “preference
for granting latitude and deference to our trial [courts].” Kirk v. Kirk, 770
1
The State argues that Father has waived the issue of whether the trial court abused its discretion in
declining to modify his child support obligation. We agree. In addition to being unsupported by cogent
reasoning or citations to authority, we find that Father’s argument is simply a reiteration of his parenting
time challenge. See App. R. 46(A)(8)(a). Similarly, we find that Father has waived his assertion of error
concerning secondary health insurance and his “burden to insure [M]other’s other household members” as
such claim is wholly unsupported by the record. (Appellant’s Br. p. 39). We also find that Father has waived
his claim that the trial court “erroneously did not grant [him] a credit for child support for the [two] year’s
[sic] daughter M.T. resided with [him]” as he did not raise the issue before the trial court. (Appellant’s Br. p.
40).
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N.E.2d 304, 307 (Ind. 2002). We will find an abuse of discretion if the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Haley v. Haley, 771 N.E.2d 743, 747 (Ind. Ct. App.
2002). We do not reweigh evidence or assess the credibility of witnesses, and
we consider only the evidence most favorable to the trial court’s decision. Id.The party seeking modification bears the burden of proving that the existing
custody order should be altered. Id. To warrant reversal on appeal, the
evidence “must positively require the conclusion contended for by [the]
appellant.” Bettencourt v. Ford, 822 N.E.2d 989, 997 (Ind. Ct. App. 2005).
[16] In order to modify a custody order, the trial court must find that modification
would be in the child’s best interest and that there has been a substantial change
in circumstances since the initial custody order. Ind. Code § 31-17-2-21(a). In
this case, notwithstanding whether there was a substantial change in
circumstances, the trial court found that “[i]t is not in the best interests of the
parties’ minor [C]hildren that [physical] custody be modified.” (Appellant’s
App. p. 38). In determining a child’s best interest, the trial court must “consider
all relevant factors,” including:
(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;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best
interests.
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(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 .
...
I.C. § 31-17-2-8. Father now argues that the evidence concerning the Children’s
best interest weighs in favor of awarding him with primary physical custody. In
particular, he cites to the testimony of thirteen-year-old M.T., who stated that
she wished to live with Father, as well as other evidence of Mother and M.T.’s
strained relationship “based on historic verbal emotional abuse.” (Appellant’s
Br. p. 33). We disagree.
[17] Considering the evidence most favorable to the judgment, we cannot say that
the trial court abused its discretion in ordering that Mother maintain primary
physical custody. It is apparent that both parents are fit, love the Children, and
wish to have custody. However, because G.T. has been primarily living with
Mother and M.T. has been living with Father, Father’s wife testified that the
Children do not have a close relationship anymore. While there has
undisputedly been a strain in the relationship between Mother and M.T., the
court-appointed counselor, Donald Smith (Counselor Smith), opined that
Father had been poisoning M.T.’s mind against Mother. Counselor Smith
recommended that Mother receive custody of the Children. Additionally,
Mother’s husband (Step-Father) and the Children’s maternal grandmother
(Grandmother) testified that in the time she had been living with Father, M.T.
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became withdrawn and has fewer friends, and she dyes her hair black and
dresses in all black. Step-Father also testified that it seemed like “M.T. is
walking on egg[]shells between the two parents[,]” but that during her visits
with Mother, she had started to smile more, and “you can see glimpses of the
girl that, you know, that three years ago I knew.” (Tr. p. 287).
[18] The evidence further establishes that Mother is devoted to the Children’s
education. During the hearing, Mother explained G.T.’s struggles in school
and her efforts to keep him caught up. Due to his young age and based on the
recommendations of his teachers, Mother thought it would benefit G.T. to
repeat the third grade in a new school. Grandmother testified that Mother
makes the Children’s homework a priority. Mother and Grandmother both
expressed concern that Father acts more like a friend than a parent, and that he
“doesn’t want to tell [the Children] no.” (Tr. p. 299). Mother added that
Father allows M.T. to “rule[] the roost,” as evidenced by the fact that he
consistently allowed her to forego Mother’s parenting time. (Tr. p. 244). A
friend of the family testified that she “never [saw] Father] do much
parenting[,]” but that Mother is “a nurturing mother, a disciplinarian, raising
her kids up right so they become better young adults.” (Tr. pp. 302-03). The
foregoing evidence sufficiently establishes that a modification of custody would
not be in the Children’s best interest. Father’s argument is essentially a request
that we reweigh the evidence, which we will not do. The trial court considered
and weighed all of the evidence, and we cannot say that its decision is contrary
to the logic and effect of the facts before the court.
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[19] In turn, the trial court found that it would serve “the best interest of the parties’
minor [C]hildren that legal custody [be] modified and that [M]other shall have
sole legal custody of the minor [C]hildren forthwith.” (Appellant’s App. p. 38).
In deciding whether an award of joint legal custody would be in a child’s best
interest, the trial court must consider:
(1) the fitness and suitability of each of the persons awarded joint
custody;
(2) whether the persons awarded joint custody are willing and able to
communicate and cooperate in advancing the child’s welfare;
(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) whether the child has established a close and beneficial relationship
with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home
of each of the persons awarded joint custody.
I.C. §§ 31-17-2-13; -15. Father contends that “[b]oth parties had admitted to
communication issues but no evidence had shown the [C]hildren’s needs not
met to an extent [M]other should have sole legal custody and to exclude
[F]ather from sole or joint legal custody.” (Appellant’s Br. p. 35). We disagree.
[20] The parent having legal custody of his or her child is entitled to “determine the
child’s upbringing, including the child’s education, health care, and religious
training.” I.C. § 31-17-2-17(a). As such, it is well established that if the parents
“have made child-rearing a battleground, then joint custody is not appropriate.”
Carmichael v. Siegel, 754 N.E.2d 619, 635 (Ind. Ct. App. 2001). In this case, it
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cannot be disputed that the hostility between the parties has made joint legal
custody unfeasible.
[21] Furthermore, we cannot say that the trial court erred in determining that sole
legal custody should be with Mother instead of Father. The evidence reveals
numerous instances in which Father—despite the Agreement for joint legal
custody—unilaterally made significant decisions regarding the Children’s
upbringing. For example, without Mother’s knowledge or consent, Father
hired a tutor for G.T. and requested special testing for him through the school;
he began administering an herbal sleep aid to M.T.; and Father’s wife (then
fiancé) signed a consent form under the pretense that she was M.T.’s legal
guardian in order for M.T. to get her ears pierced. Father also concealed the
fact that he was taking M.T. to see a child psychologist in addition to court-
appointed Counselor Smith. Regardless of the adequacy of each party’s
individual parenting skills, Father and Mother conceded that they are unable to
communicate and work together. Therefore, we find no abuse of discretion in
the trial court’s modification of legal custody. See id.B. Parenting Time
[22] Father contends that he “has a hard time in light of the events and evidence of
him spending half of the time with his [C]hildren for [five] years straight and
[two] years of nearly 100% of time with [M.T.] that the court could award [him]
the minimal amount of parenting time or how that would be in the [C]hildren’s
best interest.” (Appellant’s Br. p. 36). “[I]n all parenting time controversies,
courts are required to give foremost consideration to the best interests of the
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child.” In re Paternity of C.H., 936 N.E.2d 1270, 1273 (Ind. Ct. App. 2010), reh’g
denied; trans. denied. We will uphold the trial court’s determination of parenting
time absent an abuse of discretion. Id.[23] When Father and Mother divorced in 2006, their Agreement provided that if
they could not reach an agreement on parenting time, the Guidelines would
govern. Subsequent to the dissolution, both parents remained actively involved
in the Children’s lives, and for a period of time, they equally divided their time
with the Children. Nevertheless, the record clearly establishes that the parties
have a longstanding inability to communicate and cooperate in most matters
related to the Children.
[24] Pursuant to Indiana Code section 31-17-4-1(a), a non-custodial parent is
entitled to “reasonable parenting time rights.” Here, based on the parties’
request for a clear-cut parenting time arrangement, the trial court granted
Mother with primary physical custody and ordered Father to exercise parenting
time as set forth in the Guidelines. Although designed to be flexible where the
parties are able to cooperate, the Guidelines “represent the minimum time a
parent should have to maintain frequent, meaningful, and continuing contact
with a child.” Ind. Parenting Time Guideline pmbl. In light of the persistent
discord between Father and Mother, we find no basis for second-guessing the
trial court’s determination of a reasonable parenting time arrangement based on
the Guidelines. See Paternity of C.H., 936 N.E.2d at 1273.
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III. Title IV-D Petition
[25] Father next claims that the trial court “created a legal, procedural error by not
processing” the Title IV-D Petition. (Appellant’s Br. p. 37). Specifically,
Father contends that “[o]n June 5, 2013[,] [he] filed a separate Petition for
Modification . . . at the request and through the Title IV-D Prosecution Office.”
(Appellant’s Br. p. 37). He “believes the court should have done the math and
issued a temporary reduction in support due to the circumstances or
understandably rap [sic] this filing with the pending [Petition #3,] but to do
nothing with it seems to be very wrong.” (Appellant’s Br. p. 38).
Notwithstanding the lack of cogent reasoning and authoritative support in
Father’s argument, we find that his claim fails on the merits.
[26] Our court recently noted that the “express purpose of Title IV-D . . . is to
enforce support obligations owed to custodial parents and their children.” In re
Paternity of D.M., 9 N.E.3d 202, 207 (Ind. Ct. App. 2014), reh’g denied. In
furtherance of this duty, the Title IV-D Program may—as it did in the present
case—pursue modification of a support order. Collier v. Collier, 702 N.E.2d 351,
354-55 (Ind. 1998). Here, it is clear that the Title IV-D Program—not Father—
filed the Title IV-D Petition for child support modification on June 5, 2013.
Then, during the August 5, 2013 hearing on Mother’s relocation, the Title IV-D
Program explained that it had filed the Title IV-D Petition “in error” because
Father had already filed for modification under Petition #3. (Tr. p. 118). As
the trial court found, it “is unclear why Father would file any motions on behalf
of the Title IV-D [Program] as the [c]ourt assumed that Title IV-D [Program]
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was capable of filing their own motions as they are represented by two
attorneys.” (Appellant’s App. p. 98).
[27] Moreover, in denying Father’s motion to correct error, the trial court clarified
that it “addressed support of the minor [C]hildren in its January 24, 2014 Order
and [d]enied Father’s [m]otion regarding the same. As Father’s [Petition #3]
and [the Title IV-D Petition] are of the same subject matter, the [c]ourt deemed
the Petition filed by Title IV-D denied.” (Appellant’s App. p. 98). Accordingly,
contrary to Father’s contention, we find that the trial court sufficiently
addressed the Title IV-D Petition, the denial of which the State does not
challenge on appeal and which Father has no standing to challenge.
IV. Contempt
[28] Father also claims that the trial court abused its discretion by holding him in
contempt and ordering him to pay $1,000 toward Mother’s attorney fees. A
determination of whether a party is in contempt is a matter left to the trial
court’s sound discretion. Cowart v. White, 711 N.E.2d 523, 530-31 (Ind. 1999),
reh’g granted. We will uphold the trial court’s contempt finding absent an abuse
of discretion—that is, “if there is no evidence or inferences drawn therefrom
that support it.” Id. at 531. “Contempt of court involves disobedience of a
court which undermines the court’s authority, justice, and dignity.” Henderson
v. Henderson, 919 N.E.2d 1207, 1210 (Ind. Ct. App. 2010). A party’s “[w]illful
disobedience of any lawfully entered court order of which the offender had
notice” constitutes indirect contempt of court. Id.Court of Appeals of Indiana | Memorandum Decision | 90A04-1404-DR-190 | March 12, 2015 Page 14 of 17
[29] Here, the parties’ Agreement, which was adopted by the trial court as part of its
dissolution decree, specified, in part:
Neither [Father] nor [Mother] shall attempt, or condone any attempt,
directly or indirectly, by any artifice or subterfuge whatsoever, to
estrange the [C]hildren from the other party or to injure or impair the
mutual love and affection of said [C]hildren and said other party.
. . . The parties shall encourage the [C]hildren to respect both parties
and shall not hamper the natural development of the [C]hildren’s love
and affection for either [Father] or [Mother].
(Appellant’s App. p. 5). The trial court then held Father in contempt based on
evidence that he
interfer[ed] with the relationship between Mother and [M.T.] and has
helped facilitate[] [M.T.’s] animosity toward Mother.
. . . Most concerning is that Father has interfered with the progress
made between Mother and [M.T.] during counseling, by telling [M.T.
that] Mother and counselor were conspiring together against Father
and secretly recording conversations with counselor.
(Appellant’s App. p. 39).
[30] Father disputes that there is sufficient evidence to uphold the trial court’s
finding of contempt. We disagree. A review of the record establishes that
between August of 2011 and March of 2013—during which time M.T. lived
with Father—Mother unsuccessfully attempted to exercise parenting time, but
M.T. refused. Rather than fostering the relationship between Mother and M.T.
or otherwise exercising his parental authority to enforce M.T.’s attendance for
parenting time, Father indulged M.T.’s demands. See MacIntosh v. MacIntosh,
749 N.E.2d 626, 630 (Ind. Ct. App. 2001) (“‘In no event shall a child be
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allowed to make the decision on whether scheduled parenting time takes
place.’”) (quoting Parenting Time G. § I(E)(3)), trans. denied.
[31] Furthermore, the trial court appointed Counselor Smith to facilitate the
counseling sessions between Mother and M.T. During the hearing on Father’s
Petition #3, Counselor Smith testified that M.T. and Mother had been making
progress in their relationship when, “out of the blue” Father took M.T. to see a
child psychologist without Mother’s knowledge or consent. (Tr. p. 134).
Despite Counselor Smith’s warning that the introduction of another therapist
would create a “two camp kind of mind set, divisiveness vers[u]s staying the
course and trying to work through these difficult tedious pieces[,]” Father
continued to take M.T. to see the psychologist. (Tr. p. 136). Counselor Smith
further testified that, just prior to the hearing, M.T. arrived at her scheduled
session and was laughing and smiling, which “was out of context with anything
we were talking about,” and she said, “I know you and [Mother] rehearse this
session, you rehearse the questions you’re going to ask me, I know that.” (Tr.
pp. 134-35). According to Counselor Smith, M.T. claimed to have heard the
information from her Father and her new psychologist and, she “went on and
on about how I was biased and . . . I was in her [Mother’s] camp.” (Tr. p. 136).
Counselor Smith also reported his discovery that Father had been recording the
therapy sessions, which was “a clear violation of confidentiality.” (Tr. p. 137).
[32] Taken together, the evidence overwhelmingly supports the trial court’s finding
of contempt. Father posits that reversal is warranted because M.T. contradicted
Counselor Smith’s testimony, but we find that his argument is simply a request
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that we reweigh the evidence, which we decline to do. It was well within the
trial court’s discretion to accord more credibility to the testimony of Counselor
Smith. Therefore, we find that the trial court did not abuse its discretion by
sanctioning Father for his contemptuous behavior. See Cowart, 711 N.E.2d at
533 (approving the award of attorney fees as a remedy for contempt).2
CONCLUSION
[33] Based on the foregoing, we conclude that the trial court acted within its
discretion in denying Father’s Petition #3 to modify custody and parenting time
and in holding Father in contempt. We further conclude that the trial court
adequately disposed of the Title IV-D Petition.
[34] Affirmed.
[35] Vaidik, C. J. and Baker, J. concur
2
Father also claims that the trial court abused its discretion in denying his motion to correct error, but after
reviewing both Father’s twenty-page motion to correct error and his brief, we are unable to decipher a cogent
argument. App. R. 46(A)(8)(a). Furthermore, as he did throughout the remainder of his brief, Father has
failed to provide any authoritative support for his position. App. R. 46(A)(8)(a). We find that he has waived
the issue for appellate review.
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