Myron Jay Rickman v. Sheila Rena Rickman

FOR PUBLICATION Sep 10 2013, 5:35 am
APPELLANT PRO SE:
MYRON JAY RICKMAN
Bunker Hill, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MYRON JAY RICKMAN, )
)
Appellant-Respondent, )
)
vs. ) No. 27A02-1211-DR-950
)
SHEILA RENA RICKMAN, )
)
Appellee-Petitioner. )
APPEAL FROM THE GRANT CIRCUIT COURT
The Honorable Mark E. Spitzer, Judge
Cause No. 27C01-0603-DR-181
September 10, 2013
OPINION - FOR PUBLICATION
BROWN, Judge
Myron Jay Rickman, pro se, appeals the trial court’s denial of his petition for
modification of visitation order and denial of his motion to correct error. Rickman raises
one issue which we revise and restate as whether the court erred in denying Rickman’s
petition for modification of visitation order and motion to correct error. We reverse and
remand.
FACTS AND PROCEDURAL HISTORY
On May 4, 1996, Rickman and Sheila Rickman were married and had one child,
M.R., who was born on November 26, 1996.1 On June 5, 1997, Sheila filed a petition for
dissolution of marriage and petition for joint preliminary injunction and temporary
restraining order. In February 1998, the court appointed a special advocate (a “CASA”)
for M.R. On March 25, 1998, the court terminated restricted visitation.
On November 23, 1998, the court entered a custody and visitation decree which
stated that the CASA recommended that Sheila have sole legal custody of M.R. and that
Rickman “be granted supervised visitation on the basis of the CASA’s investigation into
three (3) alleged child molestation reports brought against” Rickman. Appellant’s
Appendix at 33. The court granted Sheila sole legal and physical custody of M.R. and
gave Rickman supervised visitation.
On July 16, 1999, the CASA filed an emergency request for modification of
visitation between M.R. and Rickman. On July 19, 1999, the court granted the CASA’s
request and terminated visitation between M.R. and Rickman pending a hearing on
1
Rickman states that Sheila was granted a name change for M.R. to M.J., but does not cite to the
record for such a name change.
2
August 23, 1999. Following the hearing, on August 26, 1999, the court suspended
Rickman’s visitation rights.
In 2000, Rickman was sentenced to an aggregate term of fifty years for eight
counts of child molesting as class A felonies, child molesting as a class C felony, and
criminal confinement as a class C felony.2 See Rickman v. State, No. 27A04-1002-CR-
80, slip op. at 3 (Ind. Ct. App. August 5, 2010).
On September 20, 2012, Rickman, pro se, filed a verified petition for modification
of visitation order. He requested that the court grant him telephone access with M.R. and
communication via mail. Rickman also suggested that “any/all determination of his
modification (of visitation) request be conveyed directly to [M.R.] by the court, in
camera, so as to preclude parental pressure.” Appellant’s Appendix at 41. On September
27, 2012, the court denied Rickman’s petition without a hearing. The chronological case
summary (“CCS”) contains an entry which states: “The Court, having reviewed
[Rickman’s] Verified Petition for Modification of Visitation Order, now denies such
petition without hearing. [Rickman] is incarcerated at the Indiana Department of
Corrections on Child Molesting charges.” Id. at 17.
On October 24, 2012, Rickman filed a motion to correct error. He alleged that the
court erred in utilizing his incarceration “as a premise for denying his visitation right(s),
in toto, . . . via the Indiana Parenting Time Guidelines” and that the trial court did not find
nor did the State assert “that the [child molesting] charge[s were] in any way associated
2
The victim of Rickman’s offenses was not M.R. Rickman, slip op. at 2-3.
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with his own child.” Id. at 44. On October 30, 2012, the court denied Rickman’s motion
to correct error.
DISCUSSION
Before addressing Rickman’s arguments, we note that Sheila did not file an
appellee’s brief. When an appellee fails to submit a brief, we do not undertake the
burden of developing appellee’s arguments, and we apply a less stringent standard of
review, that is, we may reverse if the appellant establishes prima facie error. Zoller v.
Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was established so that we
might be relieved of the burden of controverting the arguments advanced in favor of
reversal where that burden properly rests with the appellee. Wright v. Wright, 782
N.E.2d 363, 366 (Ind. Ct. App. 2002). However, questions of law are still reviewed de
novo. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind. Ct. App. 2008).
The issue is whether the court erred in denying Rickman’s petition for
modification of visitation order and motion to correct error. A decision about parenting
time requires us to give foremost consideration to the best interests of the child.
Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). Generally, parenting time
decisions are reviewed for an abuse of discretion. Id. If the record reveals a rational
basis for the trial court’s determination, there is no abuse of discretion. In re Paternity of
G.R.G., 829 N.E.2d 114, 122 (Ind. Ct. App. 2005). We will not reweigh evidence or
reassess the credibility of witnesses. Id. We review a trial court’s denial of a motion to
correct error for an abuse of discretion, reversing only where the trial court’s judgment is
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clearly against the logic and effect of the facts and circumstances before it or where the
trial court errs on a matter of law. Perkinson, 989 N.E.2d at 761.
Rickman argues that the Indiana Parenting Time Guidelines encourage
communication with a child by telephone and mail and that “[t]his is exactly what [he] is
requesting if . . . [M.R.] is receptive.” Appellant’s Brief at 8. He contends that “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.” Id. (citing Ind. Code § 31-17-4-2). He requests that we remand
this case to the trial court with instructions that the court conduct an in camera interview
and notify the parties of M.R.’s decision as to his desire to have communication with
him.
To the extent that Rickman suggests that the trial court did not make the requisite
finding under Ind. Code § 31-17-4-2, we observe that the statute governs the
modification, denial, and restriction of parenting time rights and provides:
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.
Ind. Code § 31-17-4-2. The trial court did not make any finding that a restriction on
Rickman’s parenting time consisting of telephone and mail contact might endanger
M.R.’s physical health or significantly impair his emotional development, as required by
Ind. Code § 31-17-4-2.
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To the extent that Rickman cites the Indiana Parenting Time Guidelines, we
observe that the Guidelines provide that “[b]oth parents shall have reasonable phone
access to their child” and “[a] parent and a child shall have a right to communicate
privately by . . . cards, letters, and packages, without interference by the other parent.”
Ind. Parenting Time Guideline I(A). At the time that Rickman filed his petition, Part C of
the Preamble of the Parenting Time Guidelines provided:
These Guidelines are applicable to all child custody situations, including
paternity cases and cases involving joint legal custody where one person
has primary physical custody. However, they are not applicable to
situations involving family violence, substance abuse, risk of flight with a
child, or any other circumstances the court reasonably believes endanger
the child’s physical health or safety, or significantly impair the child’s
emotional development. In such cases one or both parents may have legal,
psychological, substance abuse or emotional problems that may need to be
addressed before these Guidelines can be employed. The type of help that
is needed in such cases is beyond the scope of these Guidelines.
*****
There is a presumption that the Indiana Parenting Time Guidelines are
applicable in all cases covered by these guidelines. Any deviation from
these Guidelines by either the parties or the court must be accompanied by
a written explanation indicating why the deviation is necessary or
appropriate in the case.
Commentary
The written explanation need not be as formal as Findings of Fact and
Conclusions of Law; however, it must state the reason(s) for the deviation.
(Emphasis added) (subsequently amended January 4, 2013, effective March 1, 2013).
The question to be addressed, then, is whether the Guidelines apply to this
situation. As noted, the CCS entry is devoid of explanation and contains no finding that
there are circumstances which “the court reasonably believes endanger the child’s
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physical health or safety, or significantly impair the child’s emotional development.”
Preamble of the Parenting Time Guidelines.
We note that absent potential endangerment or significant impairment of the
child’s health, safety, or emotional development, the plain language of the Parenting
Time Guidelines presumes that the Guidelines would apply in this case. Further, the
Indiana Supreme Court has implied that the Parenting Time Guidelines apply when one
parent is incarcerated. Specifically, in Clark v. Clark, 902 N.E.2d 813, 814 (Ind. 2009),
the Indiana Supreme Court addressed whether incarceration constituted a substantial
change in circumstances justifying modification of an existing child support obligation.
In its discussion, the Court held that “[s]trengthening marriages and relationships
between children and non-custodial parents has emerged as a national strategy for
enhancing the well-being of children.” 902 N.E.2d at 817 (noting: “See Preamble for Ind.
Parenting Time Guidelines (2009); U.S. Government Accountability Office, Healthy
Marriage and Responsible Fatherhood Initiative: Further Progress Is Needed in
Developing a Risk–Based Monitoring Approach to Help HHS Improve Program
Oversight (2008), http://www.gao.gov/new. items/d081002.pdf; Responsible Fatherhood
and Healthy Families Act of 2007, S. 1626, 110th Cong. (2007) (introduced by Senators
Evan Bayh and Barack Obama specifically discussing the pressures on incarcerated
parents of the child support system)”).
The CCS entry related to the denial of Rickman’s petition states only that the
petition was denied without a hearing and that Rickman was incarcerated on child
molesting charges. That statement is factual and does not constitute a sufficient written
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explanation indicating why the petition was denied or whether it was denied pursuant to
Ind. Code § 31-17-4-2, or whether the court considered the Parenting Time Guidelines.
In either event, a factual basis and a finding as to potential endangerment of M.R.’s
physical health or safety or significant impairment of his emotional development are
necessary.
If on remand, the trial court determines the Guidelines to be applicable, it must
then proffer an explanation for its departure from the Guidelines. Thus, the trial court
must reflect upon the best interests of the child and the possible consequences of its
departure from the provisions of Indiana Parenting Time Guideline I(A). Doing so would
enable us to thoroughly and appropriately review the trial court’s deviation and the
reasons behind it.
Under these circumstances and recognizing that Sheila did not file an appellee’s
brief, we remand for the trial court to provide a written explanation for its reasons for
denying the petition or to conduct other proceedings consistent with this opinion.
For the foregoing reasons, we reverse the trial court’s denial of Rickman’s petition
for modification of visitation and remand for proceedings consistent with this opinion.
Reversed and remanded.
NAJAM, J., and MATHIAS, J., concur.
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