In re the Marriage of Laura Hyatt v. Charles Hyatt

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
Apr 29 2014, 9:44 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JULIANNE L. FOX DAVID A. GUERRETTAZ
Evansville, Indiana MOLLY E. BRILES
Ziemer, Stayman, Weitzel
& Shoulders, LLP
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF )
LAURA HYATT, )
)
Appellant-Respondent, )
)
vs. ) No. 87A04-1309-DR-454
)
CHARLES HYATT, )
)
Appellee-Petitioner. )
APPEAL FROM THE WARRICK CIRCUIT COURT
The Honorable David O. Kelley, Judge
Cause No. 87C01-1010-DR-721
April 29, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
Appellant-Petitioner Laura Hyatt (“Mother”) and Appellee-Respondent Charles
Hyatt (“Father”) were married in 1998, and two children, W.H. and S.H., were born of
the marriage. W.H. has been diagnosed with an anxiety disorder and is undergoing
treatment and counseling. In October of 2010, Father filed a dissolution petition and an
emergency petition for provisional order on the same day. The next month, the trial court
issued its provisional order granting Father parenting time pursuant to the Indiana
Parenting Time Guidelines (“the Guidelines”). The provisional order allowed for the
possibility that W.H. could refuse overnights with Father due to her anxiety.
On March 3, 2011, Mother and Father entered into an agreed dissolution decree
(“the Decree”), which provided, inter alia, that they would share joint legal custody of
W.H. and S.H., Father would have parenting time according to the Guidelines, and each
parent was to have one-half of the summer. Despite the fact that the Decree did not allow
for the possibility of W.H. refusing overnights with Father, W.H. never spent the night
with Father. On August 23, 2012, Father filed a verified information for contempt.
Mother responded by filing a motion for the appointment of a guardian ad litem
(“GAL”), a petition for visitation modification, and a verified information for contempt.
The trial court appointed a GAL soon thereafter.
After hearing evidence over the course of several hearings, the trial court issued its
order regarding all pending matters. The trial court denied Mother’s petition to modify
and her information for contempt but found Father’s information for contempt to have
merit, sentenced Mother to thirty days of incarceration (subject to purge), and ordered her
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to pay $750.00 to Father’s attorney. Mother now appeals, contending that the trial court
abused its discretion in denying her petition for visitation modification, erred in
excluding evidence predating the Decree, and abused its discretion by finding her to be in
contempt. We affirm.
FACTS AND PROCEDURAL HISTORY
Father and Mother were married on July 17, 1998, and two children were born of
the marriage: W.H., born on January 15, 2000, and S.H, born on January 27, 2006.
During the marriage, W.H. was diagnosed with an anxiety disorder and prescribed Zoloft.
On October 26, 2010, Father filed a petition to dissolve the marriage and requested a
provisional order. On November 10, 2010, the trial court issued a provisional order
governing, inter alia, custody and parenting time:
The Mother shall have temporary custody of the children. The
Father shall have parenting time according to [the Guidelines] every other
weekend from 6:00PM on Friday until 6:00PM on Sunday and on
Wednesday evenings from 6:00PM until 8:00PM. The Father shall pick the
children up from the Mother on Friday the Mother shall pick the children
up from the [F]ather on Sunday night. On Wednesday night, the Father
shall pick up and return. The parties shall continue to engage in family
counseling. [W.H.] shall continue her counseling and the Mother shall
keep the Father informed of the counseling appointments. The Court
recognizes that a problem may exist with [W.H.] and overnight visitations.
Since this is only a temporary Order, if [W.H.] refuses to stay overnight,
the Mother shall go to the Father’s residence not later than 4:00PM on the
Sunday she picks up [S.H.] and shall take [W.H.] with her, thus allowing
the Father to spend at least two hours with [W.H.] in the Mother’s presence.
The weekend visitation shall commence November 12, 2010. Wednesday
visitation shall commence November 17, 2010.
Appellee’s App. p. 1.
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Father also began attending counseling sessions with W.H. to work toward
overnight parenting time. On March 3, 2011, the trial court entered the Decree, which
also governed custody and visitation:
The parties agree that the following custody, support and visitation
settlement is in the best interest of the children and is accurately set forth
below.
2.01 Legal and Physical Custody. That the parties shall share joint
custody of their children. [Mother] shall be the primary residential
custodian of the children of the parties with [Father] exercising parenting
time per [the Guidelines] and at such other times as the parties agree. In
addition, the parties shall have half (1/2) summer break; parties will
alternate weekly physical custody.
Appellee’s App. p. 5. By the time the Decree was issued, W.H. had already attended
more than twelve counseling sessions with Dr. Vicky Lane, Ph.D., a licensed
psychologist, in an attempt to address W.H.’s anxiety about spending the night at Father’s
home.
While the provisional decree was in effect, W.H. did not spend the night at
Father’s, and this continued after the Decree was issued. On August 23, 2012, Father
filed an information for contempt. On September 14, 2012, Mother moved for the
appointment of a GAL. On September 24, 2012, Mother filed a petition to modify the
Decree and an information for contempt.
On November 20, 2012, GAL David Heal issued his report, which was
supplemented on January 10, 16, and 17, 2013. On November 26, 2012, the trial court
began a hearing on outstanding matters, which was continued on January 8, February 21,
and April 25, 2013. Father testified that, instead of having parenting time with W.H.
pursuant to the guidelines, Mother would pick W.H. up from his house on Friday night at
4
approximately 9:30 p.m., he would drive to Mother’s on Saturday morning to retrieve
W.H., and the process would repeat on Saturday night and Sunday morning. Father also
testified that he was not getting parenting time in alternating weeks with W.H. during the
summer, as he was supposed to.
Father testified regarding a voicemail message he had received from W.H. at
approximately 12:30 a.m. on August 9, 2012, apparently the result of a “pocket,” or
unintentional call. On the voicemail, Mother and other members of Mother’s family can
be heard speaking with W.H., telling her, “don’t say this, don’t say that, don’t throw your
mom under the bus” and “to watch what she says[.]” Nov. 26, 2012, Tr. pp. 17, 20.
GAL Heal also listened to the voicemail message and indicated that he heard Mother say,
“Your dad lied to the judge, he has lied to everyone.” Appellee’s App. p. 27. GAL Heal
also heard Mother say, “The reason you don’t want to stay” but could not decipher more.
Appellee’s App. p. 27.
Father testified and produced other evidence indicating that Mother frequently
communicated with S.H. and W.H. by telephone call or text message when they were
with him. Additionally, on one occasion during the summer of 2012, Father planned to
take S.H. on a weeklong trip to Florida. Father testified that when Mother came over to
collect W.H. the night before he planned on leaving, S.H. also went outside to speak with
Mother. When Father went out check on S.H. after approximately twenty minutes,
Mother had her strapped into her seat and said, “I’m not letting her stay, she’s not goin’.”
Nov. 26, 2012, Tr. p. 23. Mother left with S.H. and W.H., and Father called police for
assistance in recovering S.H.
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Dr. Lane testified that she began seeing W.H. in October of 2010 and that she had
facilitated ten or eleven joint sessions with W.H. and Father. Dr. Lane indicated that
Father had fully cooperated with W.H.’s treatment and all of her recommendations. Dr.
Lane indicated that W.H. had spoken of her anxiety about spending the night at Father’s
“because she feels she will get too homesick and miss her mom[.]” Jan. 8, 2013, Tr. p.
38. Dr. Lane also acknowledged, however, that W.H. could be using her anxiety to get
more attention and that Mother could be reinforcing W.H.’s anxiety, rather that reducing
it, by acquiescing to every request to return to Mother’s home from Father’s.
Specifically, Dr. Lane testified that “sometimes when kids have anxiety, uh, if … a lot of
attention is paid to the anxiety then it tends to get worse.” Jan, 8, 2013, Tr. p. 18. Dr.
Lane added, “I don’t think it would be helpful for Mom to just come pick up [W.H.]
every time, uh, [W.H.] felt uncomfortable.” Jan. 8, 2013, Tr. p. 18.
GAL Heal’s reports indicated that Father’s home was suitable for the children and
that Father had told him that he did not appreciate Mother and her family discussing
divorce issues in front of the children and that Mother was “always texting the girls
during my time.” Appellee’s App. p. 19. The January 16, 2013, supplement
recommended that “the court needs to admonish mother that she not talk in a negative
fashion about father in front of the children” and found that “mother, aunt and
grandmother are all openly hashing divorce issues in front of both [W.H.] and [S.H.].”
Appellee’s App. p. 28.
GAL Heal also testified that “[b]ased on [his] meetings with [W.H., he] didn’t see
any reason why she couldn’t spend the night with [Father]” and “I think everything
6
should be transitioned into the regular Indiana Parenting Time Guidelines.” Jan. 8, 2013,
Tr. pp. 43, 45. GAL Heal also agreed with the proposition that the current parenting time
situation did not allow for Father to have any uninterrupted time with the children free of
interaction with Mother. Finally, GAL Heal indicated concern that it had taken almost
three years to transition W.H. into overnight visitation with Father and that the issue with
overnight visitation had been “going on since 2010 and we don’t have a plan.” Jan. 8,
2013, Tr. p. 50. GAL recommended that W.H. spend the night with Father once and
report back to him as a first step.
On July 12, 2013, the trial court issued its order on all outstanding matters. The
order reads, in part, as follows:
After reviewing [the] evidence and the exhibits presented, the Court makes
the following findings:
1. The Father filed for Dissolution on October 26, 2010.
2. The parties entered into [the Decree] on March 3, 2011.
3. That Decree provided for the Father to have parenting time
according [the Guidelines] and specifically provided that each
parent was to have one half of the summer and alternate
weekend physical custody. The Support Worksheet also gave
the Father credit for 98 overnights.
4. [W.H.] has not spent an overnight with the Father since the
separation.
5. [W.H.] began counseling with Vicky Lane around the time of
the separation to deal with issues with Father and attended 17
sessions before [the Decree] was entered.
6. The Mother goes to pick up [W.H.] from the Father’s house
so she will not have to spend the night.
7. The Mother’s telephone calls to both children during his
parenting time [are] excessive.
As a result of these findings, the Court enters the following Orders:
7
1. The Mother’s Petition to Modify is denied. There has been
no change of circumstances to justify a modification.
[W.H.]’s situation existed before [the Decree] and has not
changed, but the Mother agreed in the [Decree] that the
Father should have overnight visitation with [W.H.].
2. The Mother’s information is denied for lack of evidence that
the Father engaged in any of the contemptuous conduct she
alleged.
3. The Father’s information for Contempt is found to have
merit. The Mother has engaged in intentional conduct that
has deprived the Father of overnight visitation with [W.H.].
The Mother is found in contempt and sentenced to thirty days
in the Warrick County Security Center. The Court will stay
the execution of the sentence and allow her to purge herself of
the contempt by insuring that [W.H.] spend overnights with
the Father and limiting her telephone calls or text messages to
only two per day not to exceed ten minutes each.
4. The Mother is ordered to pay $750.00 to Father’s attorney
within thirty days of this order.
Appellant’s Br. pp. 20-21.
Mother contends that the trial court abused its discretion in denying her visitation
modification petition, erred in excluding evidence predating the Decree, and abused its
discretion by finding her to be in contempt.
DISCUSSION AND DECISION
The Indiana 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). 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
inferences therefrom to be different from what he did.” Kirk v. Kirk, 770 N.E.2d 304,
307 (Ind. 2002) (citation omitted).
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The trial court entered findings of fact and conclusions of law pursuant to Indiana
Trial Rule 52. In such cases,
we must first determine whether the evidence supports the findings and
second, whether the findings support the judgment. The trial court’s
findings and conclusions will be set aside only if they are clearly erroneous,
that is, if the record contains no facts or inferences supporting them. A
judgment is clearly erroneous when a review of the record leaves us with a
firm conviction that a mistake has been made. We neither reweigh the
evidence or assess the credibility of witnesses, but consider only the
evidence most favorable to the judgment.
Webb v. Webb, 868 N.E.2d 589, 592 (Ind. Ct. App. 2007) (citations omitted).
I. Whether the Trial Court Abused its Discretion in
Denying Mother’s Petition to Modify Visitation
Mother contends that the trial court applied the law incorrectly to the question of
whether modification of visitation was warranted and abused its discretion in denying her
request to do so. Indiana Code section 31-17-4-2 provides that:
The court may modify an order granting or denying parenting time rights
whenever modification would serve the best interests of the child.
However, the court shall not restrict a parent’s parenting time rights unless
the court finds that the parenting time might endanger the child’s physical
health or significantly impair the child’s emotional development.
Mother notes that the trial court’s findings addressed whether there had been a
change in circumstances. Mother also notes that a trial court is required to consider
whether there has been a substantial change in circumstances in a custody context, but
not in a visitation context. See Ind. Code §§ 31-17-2-8; 31-17-2-21. Therefore, Mother
argues, the trial court applied the law incorrectly in this case.
Even assuming that Mother is correct that the trial court incorrectly applied the
law, we conclude that this alone does not warrant reversal. It is well-settled that “we
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must affirm the trial court’s judgment if it is sustainable on any theory or basis found in
the record.” In re Marriage of Moser, 469 N.E.2d 762, 766 (Ind. Ct. App. 1984). So, the
question is whether the record contains sufficient evidence to sustain a finding that
denying Mother’s request would be in the best interests of the children.
First, we note that Mother specifically agreed in the Decree that Father was to
have parenting time with W.H. according to the Guidelines and that such parenting time
was in W.H.’s best interests. Moreover, “[t]he Indiana Parenting Time Guidelines are
based on the premise that it is usually in a child’s best interest to have frequent,
meaningful and continuing contact with each parent [and] represent the minimum time a
parent should have to maintain frequent, meaningful, and continuing contact with a
child.” Ind. Parenting Time Guidelines Preamble (emphasis added). Pursuant to Indiana
Code section 31-17-4-2, the trial court cannot limit Father’s parenting time unless Mother
is able to establish that “the parenting time might endanger the child’s physical health or
significantly impair the child’s emotional development.” With this in mind, we conclude
that the record contains sufficient evidence to support a conclusion that overnight
parenting time with Father would not endanger W.H.’s physical health or impair her
emotional development.
Dr. Lane testified that it was important for W.H. to spend time with Father, W.H.
had been in therapy for over two years working toward overnights with Father, and
Father had participated in joint therapy and had fully cooperated with Dr. Lane’s
recommendations. Dr. Lane testified, in essence, that W.H.’s anxiety would only get
worse the longer W.H. waited to address it. Dr. Lane also agreed that part of the
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treatment for anxiety is “confronting what is causing your anxiety[.]” Jan. 8, 2013, Tr. p.
30. Dr. Lane acknowledged that Mother could be reinforcing W.H.’s anxiety, rather that
reducing it, by acquiescing to every request to return to Mother’s home from Father’s.
(1/8 Tr. 31). Specifically, Dr. Lane testified that “sometimes when kids have anxiety, uh,
if … a lot of attention is paid to the anxiety then it tends to get worse.” Jan, 8, 2013, Tr.
p. 18. Dr. Lane added, “I don’t think it would be helpful for Mom to just come pick up
[W.H.] every time, uh, [W.H.] felt uncomfortable.” Jan. 8, 2013, Tr. p. 18.
Mother testified that W.H.’s relationship with Father had “improved … quite a
bit” and that W.H. had never experienced a panic attack while with Father. Feb. 21,
2013, Tr. p. 25. Mother also testified that W.H. “seems to enjoy going with her father[,]
adores her dad[, and] seems to look forward to [visitation with Father]” Feb. 21, 2013,
Tr. p. 42. Finally, GAL Heal testified that “[b]ased on [his] meetings with [W.H., he]
didn’t see any reason why she couldn’t spend the night with [Father]” and “I think
everything should be transitioned into the regular Indiana Parenting Time Guidelines.”
Jan. 8, 2013, Tr. pp. 43, 45. GAL Heal also agreed with the proposition that the current
parenting time situation did not allow for Father to have any uninterrupted time with the
children free of interaction with Mother. (Jan. 8 Tr. 46).
On the whole, the evidence supports a conclusion that not only is having more
regular visitation with Father not a threat to W.H., it is, in fact, in her best interest. In
short, there is evidence that the best way to reduce W.H.’s anxiety regarding overnight
visitation with Father is to confront that anxiety, and that further delay is only making
that more difficult. Although Mother points to evidence that might tend to support a
11
conclusion that visitation modification would be in W.H.’s best interest, her argument is
an invitation to reweigh the evidence, which we will not do. We conclude that the trial
court did not abuse its discretion in denying Mother’s request to modify visitation.
II. Whether the Trial Court Abused its Discretion in
Refusing to Admit Certain Evidence
Mother contends that the trial court abused its discretion in refusing to admit
certain pieces of evidence.
Generally, the admission or exclusion of evidence is a determination
entrusted to the discretion of the trial court. Zemco Mfg., Inc. v. Pecoraro,
703 N.E.2d 1064, 1069 (Ind. Ct .App. 1998), trans. denied. We will
reverse a trial court’s decision only for an abuse of discretion, that is, when
the trial court’s decision is clearly erroneous and against the logic and
effect of the facts and circumstances before the court. Id. Erroneously
excluded evidence requires reversal only if the error relates to a material
matter or substantially affects the rights of the parties. Id. Further, any
error in the admission of evidence is harmless if the same or similar
evidence is submitted without objection. Homehealth, Inc. v. N. Ind. Pub.
Serv. Co., 600 N.E.2d 970, 974 (Ind. Ct. App. 1992), reh’g denied.
R.R. Donnelley & Sons Co. v. N. Texas Steel Co., Inc., 752 N.E.2d 112, 126-27 (Ind. Ct.
App. 2001), trans. denied.
During the hearing, Mother sought to introduce into evidence as Mother’s Exhibit
A,1 a document that purported to be a narrative concerning a 2003 traffic stop of Father;
Mother’s Exhibit D, which purported to be a series of text messages between Father and
Mother; a letter, which was represented to be an agreement between Mother and Father
as of January 26, 2011; and other evidence relating to events that occurred prior to the
Decree. Mother’s argument on this issue is that the trial court erroneously relied on
1
There are two exhibits labelled “A” from the November 26, 2012, evidentiary hearing, the one
admitted as “Respondent Exhibit A” and Mother’s proffered “A.”
12
Indiana Code subsection 31-17-2-21(c), which pertains to evidence heard in custody
modification proceedings, to exclude the evidence. That subsection reads as follows:
“The court shall not hear evidence on a matter occurring before the last custody
proceeding between the parties unless the matter relates to a change in the factors relating
to the best interests of the child as described by section 8 and, if applicable, section 8.5 of
this chapter.”
A. Mother’s Exhibit A
Mother’s Exhibit A is a document purporting to relay the details of a July 11,
2003, traffic stop involving Father. Contrary to Mother’s assertion, the trial court did not
refuse to admit Mother’s Exhibit A because it predated the Decree but, rather, because no
witness authenticated it. Mother makes no argument on that basis and so has failed to
establish an abuse of discretion.
B. Mother’s Exhibit D, the Letter, and Other Testimony
Exhibit D is a document purporting to be a series of text messages between
Mother and Father, including a message sent by Father on January 25, 2011, which reads,
No I have not been given overnights. Therefore, I would be giving
something I don’t have. There’s no certainty I ever will. If [W.H.] wants
to stay fine if not fine. These text messages hold that true. I haven’t nor
will I make anyone stay with me and that includes YOU!
The letter, for which a documentary offer of proof was not made, purported to
memorialize a pre-Decree agreement between Mother and Father that he would not
“force the issue of overnight parenting time[.]” Feb. 21, 2013, Tr. p. 20. As for the other
13
testimony, the trial court struck testimony from Mother regarding Father’s temper and
treatment of W.H.:
Um, I believe that, um, I’ve-her father was, uh, emotionally abusive to her.
Um, he-I’ve-he-he has a very bad temper that he doesn’t seem to be able to
control. I’ve seen him get mad and kick in doors. I’ve seen him get mad
and throw things and put holes in walls. I’ve seen him yell at her. I’ve
seen-I’ve heard him tell her she’s worthless. I’ve heard him tell her that she
was an embarrassment to him that-because of her weight, that she was fat
and that no man would have her except another fat man.
February 21, 2013, Tr. p. 26.
As an initial matter, the record supports Mother’s assertion that the trial court
refused to admit Exhibit D, the letter, and her testimony regarding pre-Decree events on
the basis that the evidence concerned pre-Decree events. The record also supports the
contention that the trial court was under the impression that it was required to exclude the
evidence pursuant to Indiana Code section 31-17-2-21(c). Mother argues that, because
section 31-17-2-21(c) does not apply in a visitation modification proceeding, it was
necessarily erroneous to exclude pre-Decree evidence. We cannot accept this argument:
Even though the trial court was not required by statute to exclude the evidence on the
basis that it concerned pre-Decree events, it does not follow that it abused its discretion in
doing so.
Even though there is no statutory prohibition against the admission of pre-Decree
evidence in a visitation modification proceeding, “[i]t is a well settled rule of law that the
modification hearing cannot be used to retry the issues settled by the divorce decree.”
Dufour v. Dufour, 149 Ind. App. 404, 407, 273 N.E.2d 102, 104 (1971). The Dufour
court elaborated on the rule:
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Of course, the welfare of the children is the prime consideration, and
should be so regarded in the hearing of the case, and the making of the
decree. But when the case has been heard, and a final decree entered, the
doctrine of res adjudicata applies as in any other case. There must be an end
to such litigation. If, in this case, appellee has the right to go into the
conduct of the appellant prior to the decree awarding the custody of the
child he may do so in any number of subsequent proceedings for a
modification of that decree, and thus the court may be called upon to re-try
the issues already settled.
It is important to the child that there shall be an end to such
litigation. No good can come to it from re-exposures of the faults of its
parents. When the fitness of its custodian is once settled, that settlement
should be regarded as final up to that time.
Id. at 408, 273 N.E.2d at 104-05 (citations and quotation marks omitted). It seems to us
that the rule and its underlying justification have just as much force in the visitation
context as they do in a custody context. Mother had the opportunity to present her pre-
Decree evidence in the dissolution proceeding but did not. Under the circumstances, we
cannot conclude that the trial court abused its discretion in excluding the evidence at
issue.
III. Whether Sufficient Evidence Supports the Trial Court’s
Finding that Mother Was in Contempt
Mother contends that there was insufficient evidence to sustain the trial court’s
finding that she was in contempt.
A party that is willfully disobedient to a court’s order may be held in
contempt of court. [Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind.
2012).] It is soundly within the discretion of the trial court to determine
whether a party is in contempt, and we review the judgment under an abuse
of discretion standard. Id. We will reverse a trial court’s finding of
contempt only if there is no evidence or inference therefrom to support the
finding. Id. Contempt of court involves disobedience which undermines
the court’s authority, justice, and dignity. Id. The trial court has the
inherent power to maintain its dignity, secure obedience to its process and
rules, rebuke interference with the conduct of business, and punish
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unseemly behavior. Id. Crucial to the determination of contempt is the
evaluation of a person’s state of mind, that is, whether the alleged
contemptuous conduct was done willfully. Id. “When a person fails to
abide by a court’s order, that person bears the burden of showing that the
violation was not willful.” Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind.
Ct. App. 1999), reh’g denied, trans. denied. The determination of whether
to find a party in contempt permits the trial court to consider matters which
may not, in fact cannot, be reflected in the written record. Witt, 964 N.E.2d
at 202-203. The trial court possesses unique knowledge of the parties
before it and is in the best position to determine how to maintain its
“authority, justice, and dignity” and whether a party’s disobedience of the
order was done willfully. Id.
Wilson v. State, 988 N.E.2d 1211, 1218-19 (Ind. Ct. App. 2013).
We conclude that there is sufficient evidence to sustain the trial court’s finding
that Mother is in contempt. Essentially, Mother admits to intentionally disobeying the
trial court’s visitation order for over two years after the Decree was issued, a visitation
order that, after all, she agreed to. Under the visitation scheme as it currently exists,
Father’s parenting time with S.H. and S.H.’s relationship with W.H. is also affected, as
S.H. stays with Father on her designated overnights but not without the interruption of
Mother coming each night to retrieve W.H. Moreover, during the much-reduced
visitation that Father does enjoy with W.H., Mother frequently exchanges telephone calls
and text messages with both S.H. and W.H., leading GAL Heal to opine that Mother’s
actions were preventing Father from having uninterrupted parenting time with either
child.
Moreover, there is some evidence that Mother is reinforcing W.H.’s anxiety,
speaking negatively about Father to W.H., and even coaching W.H. on how she might
avoid overnight visitation. Dr. Lane testified that it was possible that Mother’s
16
willingness to indulge W.H.’s anxiety might be exacerbating it. GAL Heal recommended
to the trial court that it admonish Mother to stop speaking negatively about Father to the
children. As for the potential coaching, Father testified regarding a voicemail message he
had received from W.H. at approximately 12:30 a.m. on August 9, 2012, apparently the
result of a “pocket,” or unintentional, call. On the voicemail, Mother and other members
of Mother’s family can be heard speaking with W.H., telling her, “don’t say this, don’t
say that, don’t throw your mom under the bus” and “to watch what she says[.]” Nov. 26,
2012, Tr. pp. 17, 20. GAL Heal also listened to the voicemail message and indicated that
he heard Mother say, “Your dad lied to the judge, he has lied to everyone.” Appellee’s
App. p. 27. GAL Heal also heard Mother say, “The reason you don’t want to stay” but
could not decipher more. Appellee’s App. p. 27. The last statement could be interpreted
as a prelude to Mother suggesting a reason to W.H. that she might use as an excuse not
stay overnight with Father.
In summary, for over two years Mother has failed to comply with the provisions of
the Decree by seeking to alienate W.H. from Father through her comments and attempted
coaching, excessive contact with W.H. while with Father, and interfering with the court-
ordered overnight visitation. Moreover, the record demonstrates that Mother’s animosity
toward Father is playing a significant part in her disobedience. Finally, we note that the
trial court has been in a position to evaluate Mother’s demeanor throughout the litigation
and during her testimony at the hearing. It would be a rare case indeed where we would
ever second-guess a trial court’s finding that a person has willfully disobeyed its orders.
Pursuant to the trial court’s inherent authority to secure obedience to its orders, we cannot
17
say that it abused its discretion in finding Mother to be in contempt, especially when the
trial court granted Mother the ability to purge the contempt by ceasing her interference
with Father’s visitation with W.H.2
The judgment of the trial court is affirmed.
RILEY, J., and ROBB, J., concur.
2
In her Brief of Appellant, Mother mentions the issue of whether her sentence for contempt was
manifestly unjust but makes no separate argument to that effect. As such, we need not address it further.
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