Max McClain, II v. Brittney Kinsey (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 18 2016, 7:57 am
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.
ATTORNEYS FOR APPELLANT
Jill A. Gonzalez
Muncie, Indiana
Amber M. Neal
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Max McClain, II, February 18, 2016
Appellant-Petitioner, Court of Appeals Cause No.
38A05-1506-JP-728
v. Appeal from the Jay Circuit Court
The Honorable Kimberly S.
Brittney Kinsey, Dowling, Special Judge
Cause No. 38C01-1407-JP-24
Appellee-Respondent.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, M.M. (Father), appeals the trial court’s Order denying
him primary physical custody of his minor child, M.M., (Child), in favor of
Appellee-Respondent, B.K. (Mother).
[2] We affirm and remand with instructions.
ISSUES
[3] Father raises two issues on appeal, which we restate as the following:
(1) Whether some of the trial court’s findings were erroneous; and
(2) Whether the trial court’s calculation of Father’s overnight visitation was
erroneous.
FACTS AND PROCEDURAL HISTORY
[4] Father and Mother are the parents of the Child, who was born out of wedlock,
on September 1, 2010. At the time of the Child’s birth, Father executed a
paternity affidavit. The parties were living together at the time of the Child’s
birth but separated in November 2011. Following their separation, the parties
verbally agreed to a joint parenting time arrangement whereby they would
alternate parenting time every other day. Also, the parties agreed that Mother
and the Child would continue to reside in their rented home in Pennville,
Indiana. In addition, Father agreed to pay rent, and daycare for both the Child
and Mother’s oldest child, T. Father, in turn, moved in with his parents who
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also resided in Pennville. During that time, Mother was employed by Sallie
Mae and worked long shifts. Based on that, Father would pick the Child and
T. from daycare, and take care of them for days at a time.
[5] In January 2012, Mother moved from the rented home to a two bedroom
apartment. The following year, on March 23, 2013, Mother married and
around May 2013, she and her new husband moved to house in Pennville. On
July 2, 2014, Mother and her new husband were in the process of moving to
Marion in Grant County, Indiana. On that day, common to his routine, Father
went to pick the Child from daycare but the Child was not there. Thinking that
the Child was home with Mother, Father went to Mother’s residence. No one
was present. Father tried calling Mother several times, but his phone calls went
unanswered. Father reported the incident to the Pennville Town Marshall
Ralph Frazee (Marshall Frazee). On July 3, 2014, Marshall Frazee visited
Mother’s home to inquire about the Child’s whereabouts. Mother did not
disclose the Child’s location. Also on that day, Father, accompanied by his
new wife and parents, returned to Mother’s home. Mother and her husband
were in the process of collecting their belongings and were getting ready to
leave. Father asked to see the Child, but Mother told him, “my attorney would
be getting hold of you.” (Tr. p. 331). According to Mother, Father’s mother
was standing by their vehicle yelling at them, whereas Father blocked their
driveway with his vehicle. Eventually, Mother and her husband were able to
leave. Father’s parents followed Mother’s vehicle to Montpelier, Indiana.
Mother and her husband stopped at a police station to report the incident. The
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police allowed them to leave, while they talked to Father’s parents. Mother
was shaken up by these events.
[6] After being denied contact with the Child, on July 11, 2014, Father filed a
verified petition for immediate custody. Father also filed a petition to set
temporary parenting time according to the Indiana Parenting Time Guidelines
(Guidelines) until custody is determined. Around that time, Father received
notice that Mother had filed an ex parte protective order against him for
stalking. 1 On September 9, 2014, the parties agreed to a temporary parenting
time agreement as per the Guidelines. Also on the same day, Mother filed a
verified counter petition to establish paternity of the Child. Father, in turn,
filed a petition for citation regarding Mother’s failure to file a notice of intent to
relocate. On October 1, 2014, Father filed another petition seeking to establish
paternity, custody, and parenting time. After a pre-trial hearing on October 13,
2014, the trial court entered an order limiting the issues to custody, parenting
time, and child support.
1
The record shows that the trial court held a hearing on October 31, 2014. Subsequently, on November 3,
2014, the trial court issued a protective order with an expiration date of December 14, 2014.
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[7] An evidentiary hearing was held on February 11, 2015. Since the parties were
unable to present all their evidence, the trial court continued the matter to April
20, 2015. The hearing was ultimately concluded on April 21, 2015. On May
28, 2015, the trial court entered an initial custody, parenting time, and child
support order. The Order awarded the parties joint legal custody of the Child
with Mother having primary physical custody.
[8] Father now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Modification of Custody
A. Standard of Review
[9] As a preliminary matter, we note that Mother did not file an appellee’s brief.
When an appellee does not submit a brief, we do not undertake the burden of
developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42
(Ind. Ct. App. 2002). Instead, we apply a less stringent standard of review and
may reverse if the appellant establishes prima facie error. Id. Prima facie error
is “error at first sight, on first appearance, or on the face of it.” Van Wieren v.
Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).
[10] Child custody determinations “fall squarely within the discretion of the trial
court and will not be disturbed except for an abuse of discretion.” Liddy v.
Liddy, 881 N.E.2d 62, 68 (Ind. Ct. App. 2008), trans. denied. This is because the
trial court can observe the parties’ conduct and demeanor and listen to their
testimony. Pawlik v. Pawlik, 823 N.E.2d 328, 329 (Ind. Ct. App. 2005), trans.
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denied. The value of such close proximity cannot be overstated in the matter of
deciding custody, where courts are “often called upon to make Solomon-like
decisions in complex and sensitive matters.” Id. at 329-30 (internal quotation
omitted). As such, we will reverse the trial court only if we conclude that the
trial court’s decision is against the logic and effect of the facts and
circumstances before the court or the reasonable inferences drawn therefrom.
Id. at 330. When reviewing a trial court’s decision, we will not reweigh the
evidence, judge witness credibility, or substitute our judgment for that of the
trial court. Id.
[11] In general, an initial custody order is determined in accordance with the best
interests of the child. Baxendale v. Raich, 878 N.E.2d 1252, 1254 (Ind. 2008).
Regarding the determination of initial custody in a paternity proceeding,
Indiana Code section 31-14-13-2 provides as follows:
The court shall determine custody in accordance with the best
interests, there is not a presumption favoring either parent. The
court shall consider all relevant factors, including the following:
(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
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(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 . . .
[12] Here, although neither party requested specific findings of fact and conclusions
thereon, the trial court sua sponte made findings awarding joint legal custody to
the parties with Mother having primary custody of the Child. Our standard of
review in this instance is well settled:
Pursuant to Indiana Trial Rule 52(A), we do not set aside the
findings or judgment unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the
credibility of witnesses. Where, as here, the findings and
conclusions are entered sua sponte, the specific findings control
only as to the issues they cover, while a general judgment
standard applies to any issues upon which the trial court has not
found, and we may affirm a general judgment on any theory
supported by the evidence adduced at trial.
Kietzman v. Kietzman, 992 N.E.2d 946, 948 (Ind. Ct. App. 2013) (citations and
quotations omitted).
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[13] With this standard in mind, our supreme court has expressed a preference for
granting latitude and deference to our trial judges in family-law matters. In re
Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993). Recently, it
emphasized this principle once again, stating that such deference is necessary
because of trial judges “unique, direct interactions with the parties face-to-face.”
Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “Thus enabled to assess
credibility and character through both factual testimony and intuitive
discernment, our trial judges are in a superior position to ascertain information
and apply common sense, particularly in the determination of the best interests
of the involved children.” Id.
[14] Father first asserts that the Order is devoid of Mother’s unilateral decision to
alienate Father’s contact with the Child from July 2014 to September 2014. On
that issue, the trial court entered the following finding
8. There was an incident in July 2014 wherein Mother and her
new husband decided to move to Grant County. They did so
without telling Father and his family. While this was not
something that the Court would normally accept, the Court does
understand how this all came together to be a “perfect storm.”
Unfortunately, Father and [the Child] paid a price in their
relationship which still affects both of them to date.
(Appellant’s App. p. 77). Although not in extensive detail as Father would
wish, the above finding mentions Mother’s action to thwart Father’s contact
with the Child in July 2014. Despite Mother’s actions, the trial court took into
account the events leading up to Mother’s decision. The trial court entered the
following pertinent findings:
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5. The parties lived together at the time of [the Child’s] birth
until 2011. When the parties split, Mother retained physical
custody of [the Child]. Time with [Father] evolved into an every
other day arrangement. However, Father’s parents would stop
by unannounced, and want to take [the Child] (and his older step
sister). This put Mother in the position of being the “bad guy”.
Grandchildren typically want to go with their grandparents, and
it was Mother’s time to which she was entitled. By saying no, it
puts her in a very bad position with [the Child]. By saying yes,
she loses out on her own time.
6. Additionally, Father’s parents would drive by Mother’s home;
they would take [the Child] and not make specific arrangement
about his return, requiring Mother to make several attempts to
get him back; and their interference extended to Mother’s older
child as well.
7. Mother eventually got to the point where she felt isolated and
controlled by Father’s family. While the Court does not believe
that Father’s family intended her to feel this way, it was a
legitimate feeling and she is entitled to her feelings and fears.
****
9. It is the Court’s belief that after listening to all of the
testimony, Father more fully understands what Mother went
through and how she made this decision . . .
(Appellant’s App. p. 77). Father does not challenge any of the above findings.
[15] Next, Father argues that the Order is devoid of Mother’s continuous pattern of
moving residences. Father argues that Mother’s relocation was not made in
good faith but was only done so as to impede his contact with the Child. We
note that when a parent whose child is the subject of a custody or parenting
time order seeks to relocate, he or she must provide notice to both the trial court
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and the non-relocating parent of his or her intent to move. Ind. Code §§ 31-17-
2.2-1(a); -3(a)(1). Indiana’s Relocation Statute mandates that this notice must
provide the non-relocating parent with the relocating parent’s new address and
phone number, the intended move date, “the specific reasons for the relocation
of the child[,]” a proposed revised parenting time schedule, and information
about the non-relocating parent’s ability to object. I.C. § 31-17-2.2-3(a)(2).
[16] The record shows that Father filed at least two verified petitions seeking a
remedy for Mother’s relocations. However, the record shows that there was no
custody order entered by the trial court until September 2014. By that time,
Mother had already moved from Pennville to Marion, Indiana. Moreover, the
record shows that on October 13, 2014, the trial court entered a pre-trial order
limiting the issues to custody, parenting time, and child support. Furthermore,
during the evidentiary hearing, Father failed to argue that Mother’s relocation
was not in good faith or for a legitimate purpose. Mother however cited
familial benefits—Mother had friends and family support in Marion, Indiana.
Accordingly, we decline Father’s offer to address the matter of Mother’s
relocation.
[17] Father also argues that Finding #11 is erroneous. The finding stated:
Father has taken [the Child] for some medical treatment without
informing Mother, he has taken the [C]hild out of state without
informing Mother, and has taken [the Child] to counseling
without informing Mother. These moves are not acceptable and
the Court cautions Father that should these things continue in
the future, the Court will consider sole physical custody. It is
absolutely imperative that the parents communicate with each
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other and attempt to make a decision together. If not, joint legal
custody will not work.
(Appellant’s App. p. 77). Father maintains that this finding was not supported
by any evidence. At trial, Mother testified that the Child told her that Father
had taken him to a big hotel in Ohio with a big pool. Father refuted this claim
by stating he took the Child to Indianapolis. Father’s argument that we should
believe his testimony is an invitation for us to reweigh the evidence. Father
next argues that he informed Mother of the Child’s hospital visits, the
medication that the Child received, and the fact that he had enrolled the Child
for counselling. Although Father informed Mother of his actions, he did so
after the fact. According to Indiana Code section 31-9-2-67, ‘joint legal
custody’ means that the persons awarded joint custody will share authority and
responsibility for the major decisions concerning the child’s upbringing,
including the child’s education, health care, and religious training. It was
crucial for Father to keep Mother informed on any decisions involving the
Child. Equally, we find no error with this finding.
II. Parenting Time Credit
[18] Father lastly claims that the trial court erred in calculating his parenting time
credit. We may not reverse a parenting time credit determination unless the
trial court manifestly abuses its discretion. Vandenburgh v. Vandenburgh, 916
N.E.2d 723, 727 (Ind. Ct. App. 2009). “No abuse of discretion occurs if there is
a rational basis in the record supporting the trial court’s determination.”
Saalfrank v. Saalfrank, 899 N.E.2d 671, 681 (Ind. Ct. App. 2008).
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[19] Father challenges the disparity in the overnight credits. When the Order was
entered in May 2015, the trial court issued two child support worksheets. In the
first worksheet, it indicated Father’s gross weekly income as $750 while
Mother’s was $290. The trial court ordered Father to pay child support of $62
per week commencing July 11, 2014, being the date when Father’s petition was
filed, until April 3, 2015. That worksheet awarded Father 180 overnights. In
the second worksheet, the trial court took into account an increase of Mother’s
weekly income to $440. Father’s income remained the same. In that
worksheet, the trial court recalculated Father’s child support up to $73. Father
was given 100 overnights.
[20] Under Child Support Guideline 6, a non-custodial parent is afforded “credit” to
his or her child support obligation for hosting his or her children overnight.
The credit is based upon the number of overnights a child or children spends
with the non-custodial parent. Grant v. Hager, 868 N.E.2d 801, 802 (Ind. 2007).
“If the court determines it is necessary to deviate from the parenting time credit,
it shall state its reasons in the order.” Ind. Child Support Guideline 6.
[21] With respect to overnight credits, the trial court ordered that
21. Father shall have parenting time by the [Guidelines] with the
exception that he may have his mid week as an overnight as so
long as he can get [the Child] to pre-school (and school once he
starts) the next morning.
(Appellant’s App. p. 88). The commentary to Child Support Guideline 6 states
that if the parents are using the Guidelines without extending the weeknight
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period to an overnight, then the non-custodial parent would be exercising
approximately 98 overnights. Father claims that he is entitled to 150 overnights
since the trial court ordered a midweek overnight—an additional 52 overnights.
Father has a valid argument; however, Father’s explanation fails to state how
the trial court came up with 180 days in the first worksheet; nor does the trial
court order explain why Father’s overnights were reduced to 100. Based on the
admittedly incomplete information, and the limited record before us, we cannot
determine the annual number of overnights Father is entitled to. Accordingly,
we remand to the trial court to modify and correct the child support worksheet
to reflect Father’s correct overnights.
CONCLUSION
[22] Based on the foregoing, we conclude that the (1) challenged findings were not
erroneous; and (2) we remand to the trial court to amend the child support
obligation worksheet to reflect Father’s correct overnights.
[23] Affirmed and remanded with instructions.
[24] Najam, J. and May, J. concur
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