Janie L. Givens v. Troy Givens (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 14 2020, 6:53 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Scott A. Norrick Paul J. Watts
Attorney at Law, P.C. Watts Law Office, P.C.
Anderson, Indiana Spencer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Janie L. Givens, February 14, 2020
Appellant, Court of Appeals Case No.
19A-DR-2309
v. Appeal from the Owen Circuit
Court
Troy Givens, The Honorable John M. Plummer,
Appellee. III, Special Judge
Trial Court Cause No.
60C02-1508-DR-103
Brown, Judge.
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[1] Janie L. Givens (“Mother”) appeals from the trial court’s July 18, 2019 order
on parenting time and contempt. We affirm.
Facts and Procedural History
[2] Mother and Troy Givens (“Father”) were married in 1987 and have six
children. In August 2015, Mother filed a petition for dissolution of marriage at
which time two of the children were minors. The two minor children had been
adopted by Father and Mother. 1 In January 2016, the court entered a decree
dissolving the parties’ marriage incorporating their settlement agreement. The
settlement agreement provided Mother would retain the marital residence and
divided the parties’ personal property and debts. In part, the agreement
specified Mother was responsible for debt on a certain Capital One credit card.
The agreement provided that the parties share joint legal custody of the minor
children, Mother have primary physical custody, and Father pay child support
and have a minimum of parenting time afforded by the Indiana Parenting Time
Guidelines. The agreement also provided:
Each of the parties agrees that in undertaking to pay certain obligations
herein, that the said party shall hold the other party harmless for
principal, interest, court costs and attorney’s fees together with any
judgment rendered against the innocent party by virtue of the party
obligated to pay, failing to fulfill that obligation, and an action being
brought by the innocent party.
1
Charlotte Church, an assessing case manager for the Department of Child Services, testified the minor
children “are of no blood relation to [Mother]” and are Father’s biological grandchildren. Transcript Volume
II at 21.
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Appellant’s Appendix Volume II at 50.
[3] In May 2018, Father filed a Petition to Modify requesting custody of the minor
children subject to Mother’s supervised and restricted parenting time because
child in need of services (“CHINS”) actions had been filed. On July 10, 2018,
the parties entered into a Joint Modification Agreement & Order (the “Joint
Agreement”), signed by the parties and their attorneys, and on July 13, 2018,
the court issued an order approving the Joint Agreement. The parties agreed
Father would have sole legal and primary physical custody of the minor
children. The Joint Agreement further provided:
Parenting Time by [Mother] with the minor children shall only
occur in a reasonable public arena, at reasonable and seasonable
times as the parties may agree, and [Mother] shall not allow the
children to have any contact with [T.], boyfriend of Mother, or [J.],
Father of [Mother], subject to further order of this court. [Mother’s]
Parenting Time shall not be unreasonably withheld.
Id. at 98. In January 2019, the court issued an order stating Mother was unable
to maintain mortgage payments on the marital residence which was about
seven months in arrears and a foreclosure action had been filed, ordered Father
be granted immediate possession to list the residence for sale, and gave Mother
thirty days to vacate the premises.
[4] On May 2, 2019, Mother filed a motion for emergency order allowing parenting
time arguing that, since she moved from the family home on February 25, 2019,
Father had denied her all visitations based solely on Father not having her
current address, her current address is irrelevant to visitation because the Joint
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Agreement directed all visits to occur in a public place, and Father endeavored
to alienate the children from her. On May 16, 2019, Father filed a Motion for
Rule to Show Cause alleging Mother was ordered to pay the debt on the Capital
One credit card and she had not made any payments since January 5, 2019, and
he requested attorney fees.
[5] On June 21, 2019, the court held a hearing. Mother testified that she informed
Father there was no reason he needed her physical address and that he would
not permit visitation. She stated “I’d like to have the visitation modified as far
as when we did the visitation a year ago it was in a public place” and “since
then [Father] argues about a park being a public place, he puts stipulations on -
and we can only see each other for an hour, I mean none of that was in the
agreement, and he tries to control everything about visitation.” Transcript
Volume II at 5. On cross-examination, Mother provided a mailing address,
stated it was her father’s address, and when asked if “that is the same [J.] who
these children have alleged molested them,” replied “[i]t is the same, there have
been allegations and no arrests have ever been made, and like I said it’s my
mailing address, I don’t reside there.” Id. at 7-8. Mother indicated she was
living in Linton. The court noted that a statute, effective July 1, 2019,
absolutely required her to provide her home address. 2 The court stated “I am
2
Ind. Code § 31-17-2.2-0.5 (eff. July 1, 2019) provides:
Except as provided in section 4 of this chapter, an individual who has or is seeking:
(1) custody of a child;
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ordering you right now, here in open court to provide that information, and if
you fail to do so I will take that into consideration in my order” and asked
“[a]re you refusing to answer the question,” and Mother replied “Yes.” Id. at 9-
10. Mother indicated she was not living with T., they never lived together, and
he occasionally spent the night at her house. She indicated that one of her
children raised a molestation allegation against T. which was the subject of a
CHINS action, it was just an allegation, and she entered the Joint Agreement
which provided the children were not allowed contact with T. or J. She
indicated that she did not call one of her children a liar. When asked how she
felt about having visitation under the supervision of the children’s therapist, she
(2) parenting time with a child; or
(3) grandparent’s visitation under IC 31-17-5;
shall at all times keep all other individuals who have or are seeking rights with the child (as
described in subdivisions (1) through (3)) advised of the individual’s home address and all of the
individual’s telephone numbers and electronic mail addresses. Information required by this
section must be provided in writing, including electronically, to each individual entitled to the
information.
Ind. Code § 31-17-2.2-4 provides:
If a court finds that disclosure of the information required under IC 31-14-13-10.2 or section 0.5 or 3
of this chapter creates a significant risk of substantial harm to the individual required to provide the
disclosure or to the child, the court may order:
(1) that the address, the telephone number, or other identifying information of the individual or
child not be shared with other individuals or disclosed in the pleadings, other documents filed in
the proceeding, or the final order;
(2) that the information required under section 3 of this chapter be maintained by the clerk of
the court in a secure location separate from the pending case file;
(3) that the notice requirements under this chapter be waived to the extent necessary to protect
the individual or child from significant risk of substantial harm; or
(4) other remedial action that the court considers necessary to facilitate the legitimate needs of
the parties and the best interest of the child.
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replied that she would not agree to any supervised visitation. She testified she
was unable to pay the credit card debt, her check was $500 a week, $200 came
out for child support, she did not pay rent but had utilities, and her last
paycheck was for $582.
[6] Father presented testimony of Charlotte Church, an assessing case manager for
the Department of Child Services (“DCS”). Church testified DCS received a
report that one of the children was sexually abused by Mother’s boyfriend, T.
She indicated that she called Mother, Mother was upset and called the child a
liar multiple times, it was evident Mother’s contact with the child was likely to
alter the child’s statement, and the child was interviewed during which she
disclosed allegations regarding J. According to Church, the CHINS case was
dismissed on the basis of a custody agreement, and the children identified T. as
a resident of Mother’s home. She indicated the CHINS case was dismissed
based on Father’s assurance that the children were protected and Mother would
not be given the opportunity to take them around T. or J. She indicated J. had
a substantial criminal history. She further indicated that DCS substantiated
sexual abuse by T. and J. and neglect by Mother. On cross-examination by
Mother, Church indicated the children later disclosed they were told by Mother
to lie. Mother asked “what were they supposed to lie about,” Church replied
“[b]eing physically abused, punched on the head and pulled by the hair,”
Mother stated “[t]hose weren’t the allegations that they were investigating so
why would someone, I mean - ,” and Church stated “[t]hey were.” Id. at 24.
Mother asked “[t]he allegations were they didn’t have food in the home, they
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didn’t have clothes, one of the boys had hit [one of the children] with a
hammer, I mean all that stuff,” and Church replied “[a]nd drug use, yes,
correct, all of those things, including physical abuse because I specifically
remember talking to you about the physical abuse.” Id. Mother asked “I also
have a lawsuit against you and DCS, correct,” and Church responded
affirmatively. Id.[7] Father testified that Mother’s last payment on the Capital One credit card had
been January 5th. He testified that he did not trust Mother or her father, and
when asked if he had concerns that Mother would take the children, Father
stated “[t]hey’ll hide them out.” Id. at 26. Father testified that Mother did not
need to be alone questioning the children. He indicated that, when he listened
to Mother on the phone with one of the children, the child told Mother it hurt
when she hit her with a clothes hanger, to which Mother replied the child was a
liar because it was a plastic clothes hanger, and at some point she also called the
child a b---- or a lying b----. He indicated it concerned him that Mother moved
and refused to provide an address and, when asked why, stated “[b]ecause for
one the lawsuit, the type of actions that – her temper is out of this world and
everything and I don’t trust her.” Id. According to Father, he told Mother
there would not be further visits until she complied with the law and one of the
children refused to talk to Mother and is scared of her. When asked, “[a]s of
this point, because of all that’s going on, would you ask the Court to limit her,
or allow you to limit her parenting time to therapeutic setting only until a
counselor says it’s safe to let her have unsupervised visits,” Father answered “I
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would as long as it didn’t have anything to do with the lawsuit.” Id. at 27. He
requested an order that Mother reimburse him for the part of his attorney fees
related to the contempt on the Capital One credit card.
[8] On July 18, 2019, the court issued an order finding Mother refused to disclose
her new physical address to Father or the court, even after ordered to do so in
open court, and this was a significant concern to the court given it must make
decisions consistent with the best interests of the minor children. It found that
Mother had lost credibility with the court by refusing to follow its order to
disclose her address, and it had reasonable concerns that she will refuse to
follow other court orders including those pertaining to her parenting time. The
court found Mother testified her mailing address was her father’s house. It
found Father presented credible evidence that one of the minor children
reported Mother had been residing with T., who allegedly molested one of the
children, and DCS had been made aware of the allegation. It found Father
presented credible evidence that the children’s maternal grandfather had a
lengthy criminal history, including molesting at least one of the minor children,
and the children have reported to Father and to DCS that Mother told them to
lie to DCS which Mother denies. It found Father presented evidence that
Mother called one of the minor children “a lying b----.” Appellant’s Appendix
Volume II at 39. The court found “a real risk exists that Mother will allow the
minor children to be around men they should not be around for safety reasons.”
Id. It further found the Parenting Time Guidelines are inapplicable at this time
because it reasonably believes Mother is likely to endanger or fail to ensure the
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protection of the children’s physical health or safety which may impair their
emotional development. The court ordered: “Mother’s parenting time with the
minor children of the parties shall be and hereby is limited and restricted to
having only supervised parenting time with the minor children under the
therapeutic supervision and treatment of a licensed child or family therapist.”
Id.[9] As to contempt, the court found Father presented sufficient evidence that
Mother had willfully disobeyed its order by failing to pay the debt due and
owing on the Capital One credit card and had not made any payments on the
card since January 5, 2019. It rejected Mother’s testimony that she was unable
to pay and found her net pay for the previous two-week pay period was $582
and she did not have a rent or house payment. It found Mother in contempt,
ordered her to pay the debt due and owing on the credit card, and indicated
sanctions were withheld for ninety days to give her time to cure. The court
found Father retained counsel to prosecute the contempt action and ordered
Mother to reimburse Father $1,005 for the attorney fees he incurred to
prosecute the contempt issue. Mother filed a motion to correct error, which the
court denied.
Discussion
[10] Mother claims the trial court erred in relying on Church’s testimony and in
further restricting her visitation, the court’s findings do not support its order,
and the court abused its discretion in ordering her to pay attorney fees. Father
maintains the court’s findings are supported by the record, Mother placed her
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parenting time at issue in her motion and at the hearing, the Joint Agreement
identified T. and J. by name, and the court did not abuse its discretion in
awarding attorney fees.
[11] 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 deference to the
determinations of trial court judges, especially in domestic relations matters, is
warranted because of their unique, direct interactions with the parties face-to-
face, often over an extended period of time. 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, 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.[12] When a trial court has made findings of fact, we apply the following two-step
standard of review: whether the evidence supports the findings of fact, and
whether the findings of fact support the conclusions thereon. Yanoff v. Muncy,
688 N.E.2d 1259, 1262 (Ind. 1997). To determine that a finding or conclusion
is clearly erroneous, our review of the evidence must leave us with the firm
conviction that a mistake has been made. Id. We generally review rulings on
motions to correct error for an abuse of discretion. Miller v. Rosehill Hotels, LLC,
45 N.E.3d 15, 18 (Ind. Ct. App. 2015).
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[13] A decision about parenting time requires foremost consideration be given to the
best interests of the child. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.
2013); see also Ind. Code § 31-17-4-2 (“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.”). Parenting time decisions are reviewed for an abuse of
discretion. Perkinson, 989 N.E.2d at 761. Indiana courts may deviate from the
Parenting Time Guidelines upon making a written explanation indicating why
the deviation is necessary or appropriate in the case. See Preamble, Ind.
Parenting Time Guidelines.
[14] Any issue not set out in the pleadings may be tried by the express or implied
consent of the parties pursuant to Ind. Trial Rule 15(B). In re V.C., 867 N.E.2d
167, 178 (Ind. Ct. App. 2007); Ind. Trial Rule 15(B) (“When issues not raised
by the pleadings are tried by express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleadings.”). Where,
as here, the evidentiary hearing ends without objection to any new issue, the
evidence actually presented at trial controls, and consequently neither pleadings
nor theories proposed by the parties frustrate the trier of fact from finding the
facts that a preponderance of the evidence permits. See In re V.C., 867 N.E.2d at
178. In her motion, Mother alleged Father was denying her all visitations and
sought visitation under the terms of the Joint Agreement. At the hearing,
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Mother indicated Father would not permit her to have parenting time until she
disclosed where she lived, Father’s counsel questioned Mother regarding the
concern that she would allow T. or J. to have access to the children and her
interactions with the children, Father testified regarding Mother’s behavior and
interaction with the children, and that he did not trust Mother or her father.
Father’s counsel asked both Mother and Father whether the court should
require that Mother’s parenting time be supervised by their therapist. The terms
of Mother’s parenting time, including the extent to which it should be
supervised, were tried with Mother’s consent.
[15] We turn to the court’s findings and order. The parties entered into the Joint
Agreement and do not dispute its terms. Mother did not object to Church’s
testimony at the June 21, 2019 hearing. 3 Neither does she challenge the
admission of her or Father’s testimony. The Joint Agreement provided Father
would have sole legal and primary physical custody and Mother “shall not
allow the children to have any contact with [T.], boyfriend of Mother, or [J.],
Father of [Mother], subject to further order of this court.” Appellant’s
Appendix Volume II at 98. The court entered findings regarding the
importance of Mother disclosing where she physically resided, her lack of
credibility, and her failure to comply with court orders. We will not reweigh
the trial court’s consideration of Mother’s credibility. The testimony of Mother
3
At the hearing, Mother did not assert Church’s testimony should have been excluded from public access,
and Mother has not complied with Ind. Appellate Rule 28(F)(3) (Procedures for Excluding Court Records
from Public Access on Appeal).
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and Father at the hearing provides support for the court’s order that Mother’s
parenting time be supervised by a child or family therapist. In light of the Joint
Agreement and under these circumstances, and keeping in mind our deference
to trial judges in family law matters, we cannot say we are left with a firm
conviction a mistake has been made or the trial court’s decision is clearly
erroneous.
[16] Indiana trial courts have inherent authority to award attorney fees for civil
contempt. McCallister v. McCallister, 105 N.E.3d 1114, 1120 (Ind. Ct. App.
2018). The court has the authority to compensate the aggrieved party for losses
and damages resulting from another’s contemptuous actions, including the
award of attorney fees. Id. The parties’ settlement agreement, incorporated
into the dissolution decree, provided Mother was responsible for the debt on the
Capital One credit card, and each party agreed to hold the other harmless for
amounts incurred, including attorney fees, by virtue of the obligated party’s
failure to fulfill an obligation. The court found the evidence was sufficient to
show Mother had willfully disobeyed its prior order in not making any payment
on the credit card since January 2019 and rejected her claim she was unable to
pay. The court ordered Mother to reimburse Father those attorney fees
incurred to prosecute the contempt issue. We find no abuse of discretion.
[17] For the foregoing reasons, we affirm the trial court’s July 18, 2019 order.
[18] Affirmed.
Baker, J., and Riley, J., concur.
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