Wayne Patton v. Jessica Patton

Dec 11 2015, 8:35 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Adam C. Squiller Douglas E. Johnston
Squiller & Harley Angelica N. Fuelling
Auburn, Indiana Tourkow, Crell, Rosenblatt & Johnston,
LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Wayne Patton, December 11, 2015
Appellant-Respondent, Court of Appeals Case No.
17A04-1503-DR-137
v. Appeal from the DeKalb Superior
Court
The Honorable Monte L. Brown,
Jessica Patton, Judge
Appellee-Petitioner. Cause No. 17D02-1107-DR-191
Bradford, Judge.
Case Summary
[1] Appellant-Respondent Wayne Patton (“Father”) and Appellee-Petitioner
Jessica Patton (“Mother”) were divorced in January of 2013. Mother was
granted sole legal and physical custody of the couple’s son W.P., born on
February 9, 2007. Since 2011, Father’s visitation with W.P. has been
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supervised, and in 2012, Father was convicted of child seduction for fondling
the breasts of his teenage daughter, who, incidentally, is now emancipated. In
2014, Father moved to modify parenting time with W.P. and child support,
seeking to have the supervision requirement lifted and his support obligation
reduced to reflect the fact that one of three children was now emancipated.
[2] Mother requested that a psychological evaluation of Father be performed, after
which the evaluator found indications of defensiveness and poor judgment and
decision-making. The evaluator also expressed doubts regarding Father’s
psychological functioning. Following a hearing, the trial court denied Father’s
motion for modification of visitation and child support obligation. Because we
conclude that the trial court abused its discretion in refusing to alter Father’s
child support obligation, we affirm in part, reverse in part, and remand with
instructions.
Facts and Procedural History
[3] Father was born on May 24, 1972, and, at some point, married Mother, with
whom he had three children—daughters Ja.P. and Ju.P. and son W.P., who
was born on February 9, 2007. On July 19, 2011, Mother petitioned for the
dissolution of her marriage to Father. In July of 2011, Father was granted
supervised visitation with W.P. at the Children’s First Center in Auburn. In
2012, Father was convicted of child seduction for fondling Ja.P.’s breasts when
she was sixteen years old. Father was initially ordered to pay $207.00 per week
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in child support, which was modified by order of the trial court to $160.00 per
week on March 26, 2013.
[4] On July 3, 2014, Father petitioned for modification of visitation and child
support, seeking removal of the supervision requirement and reduction of his
support obligation. At some point, Mother requested a psychological
evaluation for Father, which clinical and forensic psychologist Stephen Ross,
Psy.D., performed. Dr. Ross interviewed Father and reviewed various
documents regarding Father’s supervised visitation with W.P., his placement
on the Indiana Sex Offender Registry following his child seduction conviction,
and copies of excerpts from comic books Father had given to W.P. during
visitation. Dr. Ross also performed a battery of psychological tests on Father.
[5] On January 13, 2015, Dr. Ross issued his report. Dr. Ross noted that Father’s
“defensiveness” compromised the validity of some of the testing. Appellant’s
Addendum p. 5. Dr. Ross also considered the comics Father gave to W.P. to
be inappropriate, depicting satanic-like figures and containing references to
“‘half naked pictures of Brittney Spears’, and other sexually explicit references.”
Appellant’s Addendum p. 6. Dr. Ross opined that he was “not so certain about
[Father’s] psychological functioning” and that if Father did, in fact, provide
W.P. with the comic books in question, “this would be an indication of poor
judgment and decision-making on his part.” Appellant’s Addendum p. 6. Dr.
Ross explicitly endorsed neither unsupervised nor supervised visitation but did
recommend that Father and W.P. meet with a professional counselor in the
event the trial court ordered unsupervised visitation.
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[6] On January 14, 2015, the trial court held a hearing on Father’s motions. At the
hearing, Father argued, inter alia, that his child support obligation should be
modified because Ja.P. was emancipated, which represented a substantial and
continuing change in circumstances. Mother argued that although Ja.P. was
legally emancipated, she was still living with Mother and was in college. On
February 27, 2015, the trial court issued its order, which provided as follows:
ORDER
On January 14, 2015, Petitioner, Jessica Patton, appeared in
person and by counsel, Douglas E. Johnston, and Respondent,
Wayne Patton, appeared in person and by counsel, Adam C.
Squiller, for hearing on Respondent’s Motion To Modify
Parenting Time and Support filed July 3, 2014. The State of
Indiana appeared by DeKalb County Deputy Prosecuting
Attorney, Donald P. Shively. Hearing held and evidence
received.
Based on the record of the proceeding, the Court now FINDS,
ORDERS, ADJUDGES, AND DECREES:
1. That the parties herein were granted a Decree of
Dissolution of Marriage on the 7th day of January, 2013.
2. That pursuant to said Decree, Petitioner was granted the
sole legal and physical custody of the minor children and
Respondent was granted parenting time with [W.P.] on a
restricted and supervised basis through the Children’s First
Center, Auburn, Indiana.
3. That Respondent was Ordered to pay child support
payments for and on behalf of the parties’ minor children
in the amount of $207.00 per week and weekly thereafter
until further Order of the Court, which Order was
modified to the sum of $160.00 per week on March 26,
2013.
4. That [Ja.P.] is 20 years old and is emancipated.
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5. That Petitioner is gainfully employed earning
approximately $440.00 per week.
6. That Respondent is employed at Courier, Kendallville,
Indiana, earning $17.22 per hour working an average of 40
hours per week, for an average weekly gross income of
$689.00.
7. That Respondent incurs $43.00 per week in healthcare
insurance expense for the parties’ minor children.
8. That the Court has completed and filed of record in this
case a Child Support Obligation Worksheet according to
the Indiana Child Support Guidelines [which indicates a
recommended support obligation of $136.42].
9. That because the amount of support Ordered does not
differ by more than 20% of the support presently
calculated, no modification of support is Ordered.
10. That Respondent’s Motion regarding Modification of
Parenting Time applies only to [W.P.].
11. That Respondent’s Evidence in Support of a Modification
of Parenting Time concerning [W.P.] is largely based on
the psychological evaluation and report associated
therewith by Dr. Stephen Ross, introduced as
Respondent’s Exhibit A.
12. That having again carefully reviewed the report of Dr.
Ross, the Court finds that it [is] neither an endorsement of
unsupervised parenting time nor is it an endorsement of
parenting time by Respondent according to the Indiana
Parenting Time Guidelines.
13. That the Court having considered the evidence in this case,
including the nature of the comic books given or otherwise
made available by Respondent to [W.P.] which conduct
the Court finds, as did Dr. Ross, indicates poor judgment
and decision making on Respondent’s part, and the lack of
any degree of certainty associated with the report
submitted by Dr. Ross regarding [W.P.]’s safety if
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parenting time by Respondent is unsupervised, finds that
unrestricted and unsupervised parenting time may
endanger [W.P.]’s physical health and/or significantly
impair his emotional development. Accordingly, the
restriction and supervision of Respondent’s parenting time
shall continue as previously Ordered.
14. That Petitioner consented and agreed to permit
Respondent’s Mother (Mary Stockert) to act as the
supervisor of Respondent’s parenting time with [W.P.],
provided she agrees.
15. That assuming Respondent’s Mother agrees to supervise
said parenting time, at all times which parenting time shall
be exercised in the direct presence of Respondent’s
Mother, the Court authorizes Respondent’s Mother to act
as a supervisor for said parenting time. Provided,
however, said parenting time shall not include overnight
parenting time with [W.P.] until further Order of the Court
and shall occur not less often than one time per week for a
period up to 6 hours per day, the date and time to be
agreed upon by and between Petitioner and Respondent.
16. That in the event Mary Stockert is unable or unwilling to
provide the supervision required by this Order, said
parenting time shall be exercised through the Children’s
First Center, at Respondent’ s expense, or supervised by
such other person or agency as the parties may agree upon
from time to time.
17. That pursuant to paragraph 4 in the summary of Dr.
Ross’s report, said unsupervised parenting time shall begin
only after Respondent and [W.P.] have jointly met with a
professional counselor and only then upon the written
recommendation of said counselor.
Appellant’s App. pp. 8-11 (emphases in original).
Discussion and Decision
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I. Visitation
[7] Father contends that the trial court abused its discretion in denying his request
for unsupervised visitation with W.P. “Indiana has long recognized that the
rights of parents to visit their children is a precious privilege that should be
enjoyed by noncustodial parents.” Duncan v. Duncan, 843 N.E.2d 966, 969
(Ind. Ct. App. 2006) (citing Lasater v. Lasater, 809 N.E.2d 380, 400-01 (Ind. Ct.
App. 2004)), trans. denied. “As a result a noncustodial parent is generally
entitled to reasonable visitation rights.” Id. (citing Ind. Code § 31-17-4-1). “A
court may modify an order granting or denying visitation rights whenever this
modification would serve the best interests of the child.” Id. (citing Ind. Code §
31-17-4-2).
When reviewing the trial court’s resolution of the visitation issue,
we reverse only when the trial court manifestly abused its
discretion. In re Marriage of Julien (1979), Ind. App., 397 N.E.2d
651. If the record reveals a rational basis supporting the trial
court’s determination, no abuse of discretion occurred. Carter v.
Dec (1985), Ind. App., 480 N.E.2d 564. We will not reweigh
evidence or reassess the credibility of witnesses. Id.Pennington v. Pennington, 596 N.E.2d 305, 306 (Ind. Ct. App. 1992), trans. denied.
[8] 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.
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[9] Despite the statute’s use of the word “might,” for over twenty-five years
Indiana Courts have interpreted the statute to requires evidence that parenting
time “‘would’ (not ‘might’) endanger or impair the physical or mental health of
the child.” Perkinson v. Perkinson, 989 N.E.2d 758, 763 (Ind. 2013) (quoting
Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied).
[10] Here, as Father points out, the trial court indicated in its order that it had found
“that unrestricted and unsupervised parenting time may endanger W.P.’s
physical health and/or significantly impair his emotional development.”
(Emphasis added). Although Father argues that this is proof that the trial court
applied the incorrect standard in evaluating his petition, we conclude that this
does not establish the manifest abuse of discretion required to overturn the trial
court’s judgment.
[11] The transcript of the hearing and the trial court’s order indicates that the trial
court carefully considered the record, including the report Dr. Ross prepared
following his evaluation of Father. As mentioned, Dr. Ross noted Father’s
defensive attitude and continued refusal to take responsibility for the actions
that led to his criminal conviction; expressed doubts regarding Father’s
psychological health and concern about the appropriateness of the comic books
given to W.P.; and could not recommend unsupervised visitation. Dr. Ross
concluded that the content in the comic books was inappropriate for a child of
W.P.’s age, which the trial court agreed was a sign of poor judgment on
Father’s part. All in all, we conclude that the record was sufficient to sustain
the trial court’s decision not to immediately provide Father with unsupervised
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visitation with W.P. and further indicates that the trial court found that
unsupervised visitation at this point would endanger W.P.
[12] In any event, the trial court’s order did provide immediate opportunities for
more favorable visitation. Effective immediately and with Mother’s consent,
the trial court’s order provides that Father’s mother is an acceptable supervisor
for Father’s visitation with W.P. This would mean, inter alia, that visitation
could occur someplace other than Children’s First Center, providing flexibility
and presumably saving Father money. Finally, the order outlined a mechanism
through which Father could obtain the unsupervised visitation with W.P. that
he seeks in this appeal, provided that the two attend joint counseling and obtain
the counselor’s written recommendation.
[13] Overall, we conclude that the trial court took a thoughtful approach to the
visitation issue and has struck a balance that adequately addresses the concerns
of all, while still providing Father with opportunities for more rewarding
parenting time with W.P., immediately and in the future. Father has failed to
establish a manifest abuse of discretion in this regard.
II. Child Support
[14] Father also contends that the trial court abused its discretion in refusing to
reduce his child support obligation from its current level of $160.00 per week.
In reviewing a determination of whether child support should be
modified, we will reverse the decision only for an abuse of
discretion. In re E.M.P., 722 N.E.2d 349, 351 (Ind. Ct. App.
2000). We review the evidence most favorable to the judgment
without reweighing the evidence or reassessing the credibility of
the witnesses. Id. An abuse of discretion occurs when the
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decision is clearly against the logic and effect of the facts and
circumstances before the court, including any reasonable
inferences therefrom. Id.Cross v. Cross, 891 N.E.2d 635, 641 (Ind. Ct. App. 2008).
[15] Indiana Code section 31-16-8-1 provides, in part, as follows:
(b) Except as provided in section 2 of this chapter, modification
may be made only:
(1) upon a showing of changed circumstances so substantial
and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child
support that differs by more than twenty percent (20%)
from the amount that would be ordered by applying the
child support guidelines; and
(B) the order requested to be modified or revoked was
issued at least twelve (12) months before the petition
requesting modification was filed.
[16] Because the amount of child support ordered differs by less than 20% of the
amount dictated by the Indiana Child Support Guidelines, Father is limited to
arguing pursuant to subsection 1. See MacLafferty v. MacLafferty, 829 N.E.2d
938, 940 (Ind. 2005) (“While the statute presents alternative methods of seeking
modification—compliance with Subsection (1) or, in the alternative,
compliance with Subsection (2)—only Subsection (1) is available to Father
here. This is because the amount that Father would be ordered to pay applying
the Indiana Child Support Guidelines, Ind. Child–Support Guideline 3 (West
2003), differed by less than 20%[.]”).
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[17] Father must establish that the trial court abused its discretion in refusing to find
changed circumstances so substantial and continuing as to make his current
obligation unreasonable. Under the circumstances of this case, we conclude
that Father has established an abuse of discretion on the trial court’s part. It is
undisputed that Ja.P. is now emancipated, thereby terminating Father’s support
obligation. See Ind. Code § 31-16-6-6(a) (“The duty to support a child under
this chapter, which does not include support for educational needs, ceases when
the child becomes nineteen (19) years of age[.]”). Moreover, even assuming
that Ja.P. is attending college, neither she nor Mother petitioned for educational
support pursuant to Indiana Code section 31-16-6-6(d). See id. (“If a court has
established a duty to support a child in a court order issued after June 30, 2012,
the … parent or guardian of the child [or] child … may file a petition for
educational needs until the child becomes nineteen (19) years of age.”). In
short, Father no longer has any support obligation to Ja.P.
[18] The trial court appears not to have addressed Father’s argument that Ja.P.’s
emancipation was a substantial and continuing change, ordering only that the
obligation may not be modified because it did not differ more than twenty
percent from the guidelines. Although the trial court did not address the
question, we have little trouble concluding that Ja.P.’s emancipation warrants a
modification of Father’s support obligation. Father’s current obligation is based
on support for three children, whereas he is now obligated to support only two.
The Child Support Obligation Worksheet prepared for this case, based on
Father’s support of Ju.P. and W.P, and attached to the trial court’s order,
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recommends a support obligation of $136.42 per week. Mother does not argue
that the recommended obligation is based on incorrect calculations or faulty
assumptions, and we see no other reason to depart from it. Consequently, we
remand with instructions to modify Father’s child support obligation to $136.42
per week.
[19] The judgment of the trial court is affirmed in part and reversed in part, and we
remand with instructions.
Baker, J., and Pyle, J., concur.
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