Opinion
21A-JP-2458
08-03-2022
In Re the Paternity of: H.L. Kenneth Lecocq, Appellant-Respondent,
Attorney for Appellant Yvette M. LaPlante Keating & LaPlante, LLP Evansville, Indiana Attorney for Appellee Robin R. Craig Evansville, Indiana
Pursuant to Ind. Appellate Rule 65(D), this 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.
Appeal from the Gibson Circuit Court The Honorable Jeffrey F. Meade, Judge Trial Court Cause No. 26C01-0803-JP-20
Attorney for Appellant Yvette M. LaPlante Keating & LaPlante, LLP Evansville, Indiana
Attorney for Appellee Robin R. Craig Evansville, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[¶1] Appellant-Petitioner, Kenneth Lecocq (Father), appeals the trial court's findings of fact and conclusions thereon, modifying the primary physical custody of the minor child, H.L. (Child), from Father to Appellee-Respondent, Ashlee (Smith) Owens (Mother), and awarding Mother sole legal and physical custody of Child, with Father receiving parenting time.
[¶2] We affirm.
ISSUES
[¶3] Father presents this court with seven issues, which we consolidate and restate as the following four issues:
(1) Whether the trial court abused its discretion when it denied Father's motion for change of judge;
(2) Whether the trial court abused its discretion when it modified custody of Child by granting Mother sole physical and legal custody;
(3) Whether the trial court, after finding Father in contempt, erred when it set the contempt finding for sentencing without first allowing Father the opportunity to purge himself of the contempt; and
(4) Whether the trial court abused its discretion by ordering Father to pay a portion of Mother's attorney's fees.
[¶4] In addition, both Mother and Father request this court to assess appellate attorney's fees against the other party.
FACTS AND PROCEDURAL HISTORY
[¶5] Father and Mother are the biological parents of Child, born on April 26, 2006. Father acknowledged paternity at birth. Both Father and Mother are married to other spouses, with whom they have children in wedlock. Initially, Mother had primary physical custody of Child, with Father having parenting time. After Father petitioned the trial court for a modification of custody in March 2017, the parties reached an agreement on June 14, 2018 (2018 Agreement) which granted Father primary physical custody, with Mother receiving parenting time every other weekend and Wednesday evenings, and with both parties sharing joint legal custody.
[¶6] Starting in December 2018, Father repeatedly denied Mother's parenting time. On December 6, 2018, Child was scheduled to be announced as a cheerleader at a game. Although Mother insisted on getting Child at the agreed upon time for her Wednesday evening parenting time and promised that she would bring Child to the game to be announced, Father denied Mother's parenting time. On January 16, 2019, Father denied parenting because Child had a school project to finish. Father subsequently ignored Mother's request for make-up time. On Sunday, January 20, 2019, Mother was enjoying parenting time with Child when she received a message that Child's school was cancelled the following day due to unsafe road conditions. Although driving had become dangerous, Father still insisted that Mother drop Child off at the school on Monday, where Child was picked up by Father's wife (Stepmother). On February 20, 2019, barely eight months after the parties' 2018 Agreement was put in place, Father filed a petition to modify parenting time, seeking to remove Mother's overnight parenting time on any night that preceded a school day as he perceived it to be "no longer [in Child's] best interest or appropriate for the parties to share joint legal custody." (Appellant's App. Vol. II, p. 20).
[¶7] According to the 2018 Agreement, Mother was to have Child during spring break in 2019. Several weeks prior to spring break, Father had become aware of conversations in Mother's house that Mother's plan was to visit her family in Texas. Because Father had previously expressed that he did not want Mother to take Child to Texas, he scheduled the hearing on his petition to modify custody to take place during spring break. Mother's attorney managed to move the hearing date. Father also frequently talked to Child about changing Mother's parenting time prior to consulting Mother. In response to placing Child in the middle, Mother advised Father not "to negotiate my time away. This is between the adults and the court. You have been court ordered not to involve [Child] but now you have put her in a compromising position for the third week in a row. I will agree to taking her to dinner but I do not agree to you keeping her during my overnight." (Appellant's App. Vol. V, p. 212).
[¶8] Father scheduled various appointments for Child during Mother's parenting time and refused to allow Mother to take Child to the appointment; instead he insisted on taking Child himself. Child had counseling appointments on May 30, June 6, 13, and 20, 2019. Although Mother's parenting time commenced at 8:00 a.m. on those dates, Mother did not get Child until 10:15 a.m. On other occasions, Father would request to take some of Mother's parenting time with the promise of makeup time. After Mother agreed to the requested change, Father then reneged on the promised makeup time. On June 20, 2019, Father advised Mother that he needed to pick up Child early during Mother's parenting time and represented that she would have Child early on the following weekend. However, the very next day Father refused to allow Mother to pick up Child early. Other times throughout these proceedings, Father would deny parenting time altogether alleging that Child did not want to go with Mother.
[¶9] The 2018 Agreement stipulated that Child would be provided with a cell phone, purchased by Father and added to his existing family plan. Mother agreed to contribute $35 per month for Child's cell phone expenses. However, instead of adding Child's cell phone to his family plan, Father added the cell phone to his mother-in-law's cellular plan. Father restricted Child's use of and access to the phone to dates and times Child was in Father's care and custody. Father also prohibited Mother from contacting Child on Child's cell phone, even placing a block on the phone to prevent Mother's calls from getting through. When Child received a cell phone as a Christmas gift from her maternal grandmother, Father prohibited Child from bringing the cell phone to his residence. Father would not allow Child to have unmonitored communication with Mother and insisted that she talk to Mother on his cell phone while in his presence. He admitted that he had downloaded an application on his phone to record phone calls because he believed Mother to have a "motive" behind her calls with Child. (Transcript Vol. III, p. 177). Despite monitoring these phone calls, Father never found anything inappropriate during Mother's communications with Child.
[¶10] Father's suspicion of Mother carried over to the professionals providing services to Child. The 2018 Agreement mandated that the parents would openly discuss and attempt to agree upon major decisions involving Child's education, health, religion, and welfare. Despite this provision and over Mother's objection, Father unilaterally decided to have Child repeat the sixth grade. He also unilaterally selected Child's tutor, and actively interfered with Mother's proposed tutors to the point that the proposed tutors withdrew from consideration. Mother was never allowed to take Child to tutoring, not even during her summer parenting time. Immediately after the execution of the 2018 Agreement, Father contacted Jean Cummings (Cummings) to provide counseling services to Child. Initially, Mother was not included in the counseling sessions. When Mother reached out to Cummings to consult with her about Child and requested a copy of Child's medical records, Cummings refused to provide the information without receiving advice from Father first. When Mother attempted to attend a counseling session, Father moved the appointment. Eventually, Mother was able to attend a counseling session with Child during which Child confided in Cummings that she wished to reside with Mother. Shortly thereafter, Father, unilaterally, terminated Child's counseling sessions with Cummings and hired a new counselor. Although Mother attempted to consult with Child's new counselor, Father interfered with the scheduled appointment by denying Mother's midweek parenting time and by preventing her from attending the counseling session.
[¶11] Father unilaterally removed Child from her primary care doctor and enrolled her as a patient with the family doctor who treats Father and Stepmother. When completing the new patient forms, Stepmother failed to list Mother as Child's biological parent or include Mother's contact information. Similar situations occurred when Father removed Child from her ophthalmologist and enrolled her as a patient with Father's ophthalmologist and again when Child needed orthodontia. When Mother was scheduled to take Child on an extended vacation, Father sent Child with insufficient medication in an unmarked container. When Mother requested the additional medication necessary for the length of the trip, Father refused to provide it.
[¶12] Although Mother was granted access to Child's educational records through the 2018 Agreement, she had problems obtaining the information. Child's school's parent-teacher organization (PTO) maintained a Facebook group, of which Stepmother is one of the administrators, to communicate relevant PTO information to the parents and students. Mother was administratively blocked from the PTO Facebook page. Father also refused to enter schoolwork and assignments into the joint calendar. After Father accused Mother of not allowing Child to finish homework during Mother's parenting time, Mother photographed the agenda book to document that she checked Child's agenda book and supervised Child to complete the assigned homework. School assignments would also be logged into the Child's Google Classroom to which parents were granted access. However, despite her request to Father, Mother was never provided with the login credentials to access Child's Google Classroom. During Mother's summer parenting from June 4 till June 11, 2020, Mother did not receive any communication from Father about schoolwork until the morning of June 11, 2020, when Child had a meltdown because she had eighteen chapters to read, with a two-paragraph summary to write for each chapter. When Mother reached out to Father, inquiring about the parameters and purpose of the assignment, Father never responded.
[¶13] A similar situation occurred with Child's extracurricular interests. Child enrolled in school volleyball, which uses the Remind-application to communicate with parents. When Mother requested the volleyball coach, who is Stepmother's friend, to be added to the application, she was denied. Mother was likewise denied access to the communication application used for GVC competitive volleyball and was denied access to the notification system for the cheer team. Father also refused to upload Child's extracurricular activities to the joint calendar used by the parties.
[¶14] Father prevented Mother from enjoying mother-daughter bonding moments during her scheduled parenting time. Mother was scheduled to have parenting time from 3:00 p.m. till 6:00 p.m. on President's Day weekend 2019, prior to Child attending a Valentine's Day dance. Father denied the parenting time and Mother was unable to help Child get ready for her dance. Without telling Mother that Child was invited to attend a Christmas dance, Father allowed Stepmother to take Child dress-shopping. Father also let Stepmother get Child's ears pierced, with no notice to Mother. However, when Mother scheduled a hair appointment for Child, she was chastised by Father, who accused her of causing "emotional distress" to Child. (Appellant's App. Vol. V, p. 24).
[¶15] After Father filed his petition to modify parenting time on February 20, 2019, Mother filed her own petition to modify custody and parenting time on March 21, 2019, which included a request for attorney's fees. She propounded discovery to Father who, in his response, failed to answer some questions and only produced four pages of the requested documents. On July 15, 2019, Mother filed a verified information for contempt and request for attorney's fees, alleging that Father denied her parenting time on May 24 and 30; June 6, 13, and 20; July 3, 5, 6, 7, 8, 10, and 11 of 2019; denied her request for makeup time; made the unilateral decision to have Child repeat the sixth grade and made a decision with respect to tutoring. On August 9, 2019, Mother filed a second verified information for contempt and request for attorney's fees, alleging that Father denied her parenting time on November 28, 2018, January 16, 2019, April 3, 2019, July 19-25, 2019, and August 7, 2019. On August 9, 2019, Mother filed a motion to exclude because Father had not provided the documents and exhibits requested in discovery and had not supplemented the discovery. The trial court reserved August 14 and 15, 2019 for the presentation of the evidence, however, the evidence was not concluded.
[¶16] On August 20, 2019, Father filed a petition to modify child support. The trial court continued the presentation of the evidence on November 6 and 7, 2019; February 26, 2020; March 4 and 5, 2020; the morning of June 16, 2020; and June 25, 2020; yet, the evidence was not concluded. On October 6, 2020, Mother filed another information for contempt, alleging that Father denied her makeup parenting time for May 6, 2020, and denied parenting time on August 12 and September 4, 2020. On November 6, 2020, Father filed a verified emergency motion to suspend Mother's overnight parenting time, asserting that Child was experiencing anxiety and physical symptoms. On November 25, 2020, Mother filed another information for contempt, claiming that Father denied her overnight parenting time on October 28-29, November 4-5, 11-12, and 18-19, 2020. On December 17, 2020, the trial court conducted an attorney telephone conference regarding Father's request for an emergency order to suspend Mother's overnight parenting time. Both counsel and Child's guardian ad litem (GAL) participated in the conference call. On February 8, 2021, Mother filed another information for contempt, alleging that Father denied her overnight parenting time on December 2-3, 9-10, and 16-17, 2020. The presentation of the evidence was concluded on May 25, 2021. On July 7, 2021, after the conclusion of the presentation of evidence, Father filed a verified motion for change of judge pursuant to Indiana Trial Rule 76, alleging that the trial court had made several biased comments indicating partiality during the November 7, 2019, December 17, 2020, and May 25, 2021 hearings. On August 4, 2021, the trial court summarily denied the motion for change of judge.
[¶17] On August 10, 2021, Mother filed a post-trial brief, proposed findings of fact and conclusions thereon, with an attached child support worksheet and an affidavit of attorney's fees, reflecting $63,446.50 in attorney's fees through August 10, 2021. That same day, Father filed his proposed findings of fact and conclusions thereon, together with an affidavit of attorney's fees, demonstrating that his fees from February 2019 through July 21, 2021, totaled $96,937.41, of which Father had paid $68,140.52. On September 2, 2021, the parties introduced supplemental evidence and the trial court conducted an in-camera interview of Child. Both parties filed supplemental findings of fact and conclusions thereon, as well as affidavits of attorney's fees, showing that Father incurred an additional $11,612.81 in fees in connection with Mother's motion to reopen evidence to introduce newly discovered evidence of Father's misconduct, with Mother's attorney's fees totaling $66,922.95.
[¶18] After a span of two-and-a-half-years and following eleven days of testimony, the trial court issued its thirty-five-page Order, finding Father in contempt, and granting Mother sole physical and legal custody of Child, with Father receiving parenting time. Father was ordered to pay $41,386.45 of Mother's attorney's fees and the trial court set a hearing for the determination of child support and for sentencing on Father's finding of contempt.
[¶19] Father now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Motion for Change of Judge
[¶20] Father contends that the trial court abused its discretion when it denied his motion for change of judge pursuant to Indiana Trial Rule 76. Focusing on the hearing of November 7, 2019, the telephone conference of December 17, 2020, and the final hearing of May 25, 2021, Father asserts that during the course of these hearings, the trial judge "overtly expressed his bias by comparing the parties' situation to his personal situation," and in doing so, "he went beyond simply explaining to Father the possible consequences of his actions to intimidating or threatening Father with further litigation" and thereby abandoned the appearance of impartiality. (Appellant's Br. p. 60).
[¶21] A motion for change of judge is governed by Indiana Trial Rule 76, which provides in pertinent part that
(B) In civil actions, where a change may be taken from the judge, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney. Provided however, a party shall be entitled to only one change from the judge.
* * *
(C) In any action except criminal no change of judge or change of venue from the county shall be granted except within the time period herein provided. Any such application for change of judge shall be filed not later than ten days after the issues are first closed on the merits.
Issues are first closed on the merits upon the filing of a defendant's original answer. State ex rel. Prosser v. Lake Circuit Court, 565 N.E.2d 751, 753 (Ind. 1991). Thus, Indiana Trial Rule 76 provides that the granting of a motion to change judge is automatic if made within the time limitations established by the rule. We review a trial court's decision on a party's motion for change of judge for an abuse of discretion. Mann v. Russell's Trailer Repair, Inc., 787 N.E.2d 922, 924-25 (Ind.Ct.App. 2003), trans. denied. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it. Id.
[¶22] While Father concedes that his motion was not made within the prescribed time limitations of T.R. 76(C), he relies on the exception to file a motion for change of judge outside the ten-day time limit as provided for in T.R. 76(C)(6), which states that:
if the moving party first obtains knowledge of the grounds for change of [ ] judge after the time above limited, he may file said application, which must be verified personally by the party himself, specifically alleging when the cause was first discovered, how discovered, the facts showing the grounds for a change, and why such cause could not have been discovered before by the exercise of due diligence.
In support of the timing, nature, and due diligence discovery of the cause for change of judge, Father asserted in his motion that "[t]he depth and extent of the trial judge's prejudice and bias against [] Father didn't become clearly evident until the hearing on May 25, 2021, when the [j]udge made the comments set out above and therefore could not have been raised earlier." (Appellant's App. Vol. III, p. 74).
[¶23] However, a close reading of T.R. 76 indicates that the rule does not require parties to wait to file their motion until the perceived biased comments and conduct reach a certain depth or extent; rather, the rule speaks to the exercise of due diligence in the discovery of the cause supporting the motion. If a party is reluctant to file a T.R. 76 motion until a certain level of bias is reached, the party, by necessity, was aware and had knowledge that bias could be alleged sooner and therefore due diligence requires the party to file the motion at the first allegation, and not to wait until the allegations stack up over time. Here, Father became aware of a perceived bias when he was present at the hearing, yet Father waited 508 days to assert a cause of bias for the November 7, 2019 hearings and 202 days for the December 17, 2020 hearing. Accordingly, we cannot say that Father acted diligently in the discovery of the cause of the alleged bias, and therefore, he cannot avail himself of the exception to the ten-day filing deadline provided in T.R. 76(C)(6).
[¶24] Without crafting a bright-line rule for the diligent discovery of grounds for a motion for change of judge, it could be asserted, and we will find as such, that Father acted diligently with respect to the May 25, 2021, hearing, as Father filed his motion within 44 days of the conclusion of the hearing. In his motion, Father claims that the trial judge addressed him in "an impatient, indignant and discourteous manner," telling Father that he was "pissing him off." (Appellant's App. Vol. III, p. 72). Father maintains that the trial judge berated him and threatened him with incarceration, claiming that several pieces of evidence were "damning" to Father's case. (Appellant's App. Vol. III, p. 73).
[¶25] A judge is presumed to be unbiased. Dan Cristiani Excavating Co. v. Money, 941 N.E.2d 1072, 1082 (Ind.Ct.App. 2011), trans. dismissed. "To overcome this presumption, the party seeking to disqualify a judge must establish actual personal bias." Moore v. Liggins, 685 N.E.2d 57, 63 (Ind.Ct.App. 1997). That is, a party "must show that the trial judge's action and demeanor crossed the barrier of impartiality and prejudiced the [party]'s case." Flowers v. State, 738 N.E.2d 1051, 1061 (Ind. 2000). Adverse rulings are insufficient to show bias per se. Taylor v. State, 587 N.E.2d 1293, 1303 (Ind. 1992), reh'g denied. Upon review of a judge's failure to recuse, we will assume that the judge would have complied with the obligation to withdraw had there been any reasonable question concerning impartiality, unless we discern circumstances which support a contrary conclusion. Dahlin v. Amoco Oil Corp., 567 N.E.2d 806, 813 (Ind.Ct.App. 1991), trans. denied.
[¶26] After two-and-a-half years of contentious proceedings, the May 25, 2021 hearing represented the eleventh and final hearing on the parties' motions to modify custody and Mother's contempt filings. During this hearing, Mother's testimony focused on the numerous interferences by Father with her parenting time despite prior court orders and warnings to cease the interference, her attempts to plan a yearly vacation, Father's chastising and hateful messages when requesting makeup time, and his lack of notification about Child's extracurricular activities, practices, and tryouts. Presented with this flood of evidence, including 1,750 pages of exhibits, and 250 pages of the parties' email messages through the court-ordered OurFamilyWizard (OFW) application, the trial court, sua sponte, addressed Father, using the colloquial "bud" and warning Father that he was "not playing with this." (Tr. Vol. VI, p. 165). Assuring the parties that he was "not prejudging" anything, he cautioned Father that
you interfere with her parenting time one day, okay, and I don't care what your daughter has to say about it, you are going to jail, and I don't mean for a week. Okay? I mean, a long time. So you just get prepared for that, buddy. Okay? Because I am so done with this. You have just royally pissed me off. [] This evidence royally pisses me off, because I let you know in no uncertain terms last year you better be following this [c]ourt's order. Okay? And you haven't. It's going to cost you a bundle. She's going to get a ton of makeup days. Okay? And I'm not even judging custody. I'm talking thousands and thousands and thousands of dollars you best are coming up with. Okay? Because this will not happen again or your ass is going to be in that jail for a long time. Are you - is this crystal clear for you, man? Because, bud, I ain't playing. I'm not playing. This is one of the most egregious, okay, egregious interference of parenting time that I've ever seen. Okay? You do not follow my order again you bring your toothbrush[.](Tr. Vol. VI, p. 165). Although pointing at these statements and quoting from them at length, Father fails to explain how the trial court's order to comply with its previous orders is biased and prejudicial. The trial judge's admonition to Father was in direct response to the evidence presented, which included Father's OFW communications to Mother in which he denied her parenting time in direct and overt contravention of the judge's previous mandates. The trial judge's reference to incarceration is an appropriate statement of the possible sanction for any future contempt of the court's order. See, e.g., In re Paternity of C.N.S., 901 N.E.2d 1102, 1106 (Ind.Ct.App. 2009) (a jail sentence for civil contempt must be coercive or remedial rather than punitive in nature) While Father opines that the trial judge's remarks amounted to threats, with intimations of jail sentences and instructions to "bring a toothbrush," we do not characterize these statements as showing such prejudice against Father as to deprive him of the right to be tried before an impartial judge; at best the remarks attributed to the judge reflect the frustrations he must have felt in dealing with an extremely uncooperative litigant, who consistently ignored and violated the court's orders. (Tr. Vol. VI, p. 165). We have previously observed that the showing of a strained relationship between a party's attorney and the judge is not reason for the judge to be disqualified. Leistikow v. Hoosier State Bank of Ind., 394 N.E.2d 225, 227 (Ind.Ct.App. 1979). The same may be said with respect to the relationship between the judge and a party. We have likewise noted that when a trial judge learns information about a defendant through the judicial process, bias and prejudice will not be found even if the judge makes remarks which are critical, disapproving, or even hostile. Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind. 1999). "Though we require courts to treat all litigants with respect at all times, we also recognize that judges are not immune from the emotional effects of the cases they hear. Recognizing that burden, we will not race to judgment over isolated inappropriate or impatient comments that do not cause prejudice to the parties." In re J.K., 30 N.E.3d 695, 701 (Ind. 2015).
Accordingly, as we do not find bias, the trial court did not abuse its discretion by denying Father's motion for change of judge.
Father also attempts to invoke examples from other hearings pointing toward actual bias and prejudice, however, we will not address these issues as they were not diligently discovered. See T.R. 76(C)(6).
II. Modification of Custody
[¶27] Father contends that the trial court abused its discretion in modifying primary physical custody and instituting sole legal custody of Child in favor of Mother. As pointed out by Father, the trial court adopted almost verbatim Mother's proposed findings of fact and conclusions thereon as its Order. Our Trial Rules encourage parties to submit proposed findings of fact and conclusions thereon and it is not uncommon or per se improper for a trial court to enter findings that are verbatim reproductions of submissions by the prevailing party. Clark v. Crowe, 778 N.E.2d 835, 841 n. 3 (Ind.Ct.App. 2002) When a party prepares proposed findings, they "should take great care to insure that the findings are sufficient to form a proper factual basis for the ultimate conclusions of the trial court." Marathon Oil Co. v. Collins, 744 N.E.2d 474, 477 n. 2 (Ind.Ct.App. 2001). Moreover, "the trial court should remember that when it signs one party's findings, it is ultimately responsible for their correctness." Id. Therefore, in Clark, this court urged trial courts "to scrutinize parties' submissions for mischaracterized testimony and legal argument." Clark, 778 N.E.2d at 841 n. 3.
[¶28] We encourage such scrutiny for good reason. As our supreme court has observed, the practice of accepting verbatim a party's proposed findings of fact "weakens our confidence as an appellate court that the findings are the result of considered judgment by the trial court." Cook v. Whitsell-Sherman, 796 N.E.2d 271, 273 n. 1 (Ind. 2003) (citing Prowell v. State, 741 N.E.2d 704, 708-09 (Ind. 2001)). However, the court also clarified that verbatim reproductions of a party's submissions are not uncommon, as "[t]he trial courts of this state are faced with an enormous volume of cases and few have the law clerks and other resources that would be available in a more perfect world to help craft more elegant trial court findings and legal reasoning." Prowell, 741 N.E.2d at 708. The need to keep the docket moving is properly a high priority for our trial bench. Id. at 709. For this reason, the practice of adopting a party's proposed findings is not prohibited. Id. Thus, although we by no means encourage the wholesale adoption of a party's proposed findings and conclusions, the critical inquiry is whether such findings, as adopted by the court, are clearly erroneous. See Saylor v. State, 765 N.E.2d 535, 565 (Ind. 2002).
[¶29] Despite being faced with eleven hearings conducted over two years and the presentation of several voluminous exhibits, the trial court here did not adopt the entirety of Mother's proposed findings and conclusions. Rather, the trial court incorporated significant additions to its Order, be it with original paragraphs or sentences, and altered several proposed findings. The trial court also did not incorporate the findings by way of a one-line order, but adopted them by means of an entry that recited each finding the court approved. See Cook, 796 N.E.2d at 273 n. 1. Under the facts and circumstances presented here, we cannot conclude that the trial court's almost verbatim adoption of the parties' proposed findings and conclusions was clearly erroneous.
A. Standard of Review
[¶30] Because the trial court entered findings of fact and conclusions thereon pursuant to Trial Rule 52(A), we apply a two-tiered standard of review. In Re Paternity of K.C., 171 N.E.3d 659, 673 (Ind.Ct.App. 2021). First, we determine whether the evidence supports the findings, and second, whether the findings support the judgment. Id. The trial court's findings are controlling unless the record includes no facts to support them either directly or by inference. Id. Legal conclusions, however, are reviewed de novo. Id. We set aside a trial court's judgment only if it is clearly erroneous. Id. "Clear error occurs when our review of the evidence most favorable to the judgment leaves us firmly convinced that a mistake has been made." Id.
[¶31] There is a well-established preference in Indiana "for granting latitude and deference to our trial judges in family law matters." Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). In this regard, the Indiana Supreme Court explained as follows:
Appellate deference to the determinations of our 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. 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.Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Accordingly, "[o]n appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by the appellant before there is a basis for reversal." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). We will neither reweigh the evidence nor reassess the credibility of witnesses, and we will view the evidence most favorably to the judgment. Best, 941 N.E.2d at 502. "[W]e consider only the evidence and reasonable inferences drawn therefrom which support the verdict." Hanson v. Spolnik, 685 N.E.2d 71, 77 (Ind.Ct.App. 1997), trans. denied.
B. Modification of Physical Custody
[¶32] Following the establishment of paternity, a trial court may modify a child custody order only upon a showing that modification is in the child's best interests and that there has been a substantial change in one or more of the factors that the court may consider under Ind. Code § 31-14-13-2. I.C. § 31-14-13-6. Indiana Code section 31-14-13-2 provides that the trial court "shall consider all relevant factors," including specifically:
Both parties cite to Indiana Code sections 31-17-2-21 and 31-17-2-8, -15, which are applicable to determining the modification of custody in a dissolution proceeding. When determining the modification of custody in a paternity proceeding, as in this appeal, I.C. §§ 31-14-13-6 and 31-14-13-2 are applicable. Nevertheless, the paternity and dissolution statutes contain nearly identical language and now involve the same standard of review. See Joe v. Lebow, 670 N.E.2d 9, 16-20 (Ind.Ct.App. 1996) (discussing the history of the dissolution and paternity custody modification statutes).
(1) The age and sex of the child.
(2) The wishes of the child's 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 parents;
(B) the child's siblings; and
(C) any other person who may significantly affect the child's best interest.
(5) The child's adjustment to home, school, and 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, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.
[¶33] In challenging the trial court's modification of the physical custody arrangement, Father contends that the "[t]he Order failed to identify any change in the best interests factors other than a generalized blame for unspecified changes in [Child's] well-being based on the disagreements between the Parties which the court blames on Father." (Appellant's Br. p. 71). As such, Father maintains that "[t]he only change in circumstance is the court's perception that Father is not following orders." (Appellant's Br. p. 72).
[¶34] While we agree with Father, that typically "[a] custodial parent's general lack of cooperation or isolated acts of misconduct cannot serve as a basis for custody modification," we also observe that "[i]f one parent can demonstrate that the other has committed misconduct so egregious that it places a child's mental and physical welfare at stake, the trial court may modify the custody order." Maddux v. Maddux, 40 N.E.3d 971, 979 (Ind.Ct.App. 2015). Here, the record and the trial court's Order are replete with evidence of Father brazenly prohibiting Mother from exercising her parenting time with Child, ignoring her requests for makeup time, interfering with her communications with Child, and thwarting her attempts to become involved in Child's counseling and educational needs. Specifically, the trial court observed
While the [c]ourt does not find that either party is free from all fault, the [c]ourt does find that the vast majority of the problems with co-parenting in this case is attributable to the Father's blatant disregard for the [c]ourt's order, blatant disregard for the weII-being of his minor daughter, his obvious hatred and disdain for the Mother, his need to continuously interfere with the Mother's parenting time, her efforts to be involved in [Child's] education and extra-curricular activities, his continued and pervasive derogatory comments, chastising, belittling, lecturing, controlling and manipulative behavior toward the Mother, as exhibited through the evidence in this case and the communication of the parties included in the Our Family Wizard.
[] As the evidence came in over 11 days of hearings, it was abundantly clear that Father was already restricting Mother's time with [Child] by intentionally and continually interfering with it. It was also crystal clear that Father had chosen to engage
in the absolute worst case of parental alienation this court has seen in over fourteen years on the bench.
The [c]ourt finds that [Child] has suffered as result of Father continually undermining and interfering with Mother's parenting time with [Child] and that they were not isolated occasions.
The [c]ourt finds that Child's relationship with her [M]other has, at times, suffered as a result of the Father's manipulation and control.
The [c]ourt finds that [Child's] physical and mental health has deteriorated since the [c]ourt's order of June 14, 2018.
The [c]ourt finds that the overall effect of the Father's conduct in this cause has had a detrimental impact on [Child] and a detrimental impact on [Child's] relationship with her Mother. The [c]ourt finds it is not in [Child's] best interest for the Father to do more damage to [Child], and that he has been unable or unwilling to modify his behavior to genuinely act in [Child's] best interest.(Appellant's App. Vol. IV, pp. 115, 116, 124-25, ¶¶ 79, 80, 83-85, 139). The trial court also documented the physical and mental impact of these proceedings on Child's overall health, who is now taking prescription psychiatric medication with multiple increased dosages and who has experienced anxiety, which has resulted in ulcers. Father's egregious conduct caused Mother to file five different petitions for contempt involving matters of custody and parenting time over the course of these proceedings.
[¶35] Although Father now claims that the change in physical custody will have a much more substantial impact on Child's routine than Father's requested change he improperly relies on the wrong standard. The statutory factors governing modification of custody in a paternity proceeding are not based on which parent's wishes will result in the least amount of change to a child's routine but rather focus on, after finding that a substantial change in circumstance occurred, the fact that the modification is in the best interest of the minor child. Here, the trial court made numerous findings that related to the statutory factors of custody modification. These findings addressed Child's age, Father's actions that interfered with Mother's relationship with Child, Child's mental health and educational needs and resulted in the trial court's conclusion that a substantial change in circumstance had occurred that warranted a modification in physical custody to be in Child's best interests. Father's suggestion that "the undisputed evidence, removing all of the bickering between the parties, weighs the best interest factors in favor of Father," is a request for this court to reweigh the evidence, which we decline. (Appellant's Br. p. 77). See Best, 941 N.E.2d at 502. Accordingly, as our review of the evidence most favorable to the judgment does not convince us that a mistake has been made, we affirm the trial court's modification of physical custody. See In Re Paternity of K.C., 171 N.E.3d at 974-75.
C. Modification of Legal Custody
[¶36] Father also contests the trial court's modification of joint legal custody of Child to sole legal custody in favor of Mother. With respect to modification of legal custody, a trial court should specifically consider whether there has also been a change in one of the statutory factors governing awards of joint legal custody. Julie C. v. Andrew C., 924 N.E.2d 1249, 1259-60 (Ind.Ct.App. 2010). In a paternity case, those factors are:
(1) the fitness and suitability of each of the persons awarded joint legal custody;
(2) whether the persons awarded joint legal custody are willing and able to communicate and cooperate in advancing the child's welfare;
(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) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody;
(5) whether the persons awarded joint legal custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so;
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint legal custody; and
(7) whether there is a pattern of domestic or family violence.I.C. § 31-14-13-2.3(c).
[¶37] With regard to these statutory facts, the trial court stated,
The [c]ourt finds that the parties do not meet the statutory criteria for joint legal custody [], specifically the fitness and suitability of the [F]ather, whereas here the [F]ather is unable to effectively communicate and cooperate in advancing the [C]hild's welfare, and the nature of the emotional environment in the home of each
parent. The court finds that the minor [C]hild is at least 14 years of age and wishes for her parents to quit fighting.(Appellant's App. Vol. IV, p. 119, ¶ 103). Acknowledging that "parents do not co-parent well," Father argues that because he "has a proven track record of protecting [Child's] well-being and has frequently sought help in communicating with Mother, Father is the more appropriate candidate for sole legal custody." (Appellant's Br. pp. 81, 82). Father's claim amounts to a request to reweigh the evidence, which is not within this court's purview. The evidence is undisputed that Father used the joint legal custody to make appointments as a means to deny Mother parenting time and to interfere with Mother's ability to be an active parent in Child's life. To grant legal custody to Father would only perpetuate his abuse of that position. Therefore, the trial court did not err when it awarded sole legal custody to Mother.
III. Finding of Contempt
[¶38] Although the trial court found that Father willfully disobeyed its orders by denying Mother parenting time, Father does not challenge this finding but rather "contest[s] the procedure and the trial court's expressed belief that it can sentence him to months in jail." (Appellant's Br. p. 83). Without any citation to applicable jurisprudence, Father asserts that "he should be given an opportunity to purge himself of that contempt" and requests this court to "instruct the trial court on the appropriate manner to proceed after the contempt finding" during its sentencing, which was taken under advisement by the trial court in its Order. (Appellant's Br. pp. 83, 84).
[¶39] Contempt of court generally involves disobedience of a court or court order that "undermines the court's authority, justice, and dignity." In re A.S., 9 N.E.3d 129, 131 (Ind. 2014). There are two kinds of contempt: direct contempt and indirect contempt. Id. Indirect contempt, which is at issue in this case, involves those acts "committed outside the presence of the court which nevertheless tend to interrupt, obstruct, embarrass or prevent the due administration of justice." Id. at 132. Indiana has codified the procedural requirements for finding indirect contempt at Indiana Code section 34-47-3-5, which provides:
(a) In all cases of indirect contempt, the person charged with indirect contempt is entitled:
(1) before answering the charge; or
(2) being punished for the contempt; to be served with a rule of the court against which the contempt was alleged to have been committed.
(b) The rule to show cause must:
(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;
(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and
(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.
(c) The court shall, on proper showing, extend the time provided under subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.
[¶40] In Reynolds v. Reynolds, 64 N.E.3d 829, 835 (Ind. 2016), our supreme court clarified that the "purge" portion of the statute typically only applies to cases where the trial court has ordered jail time to coerce action by the contemnor. This is likely because jail time is generally punitive in nature and civil contempt orders avoid punishing the contemnor by allowing the party to be purged of contempt. Henderson v. Henderson, 919 N.E.2d 1207, 1212 n. 3 (Ind.Ct.App. 2010). As Father has not yet been sentenced by the trial court for his contempt finding, Father's argument that he should have been given an opportunity to purge himself of the contempt is premature and not properly before this court.
[¶41] It is well-established that the trial court has the inherent power to "maintain [ ] its dignity, secur[e] obedience to its process and rules, rebuk[e] interference with the conduct of business, and punish[ ] unseemly behavior." Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). By advising the trial court on the appropriate sentence in the matter before us, as Father requests, we would not only intrude on the province of the trial court but would also violate one of the cardinal principles of "judicial function" in that "courts should not issue advisory opinions but instead should decide cases only on the specific facts of the particular case and not on hypothetical situations." Snyder v. King, 958 N.E.2d 764, 786 (Ind. 2011). Therefore, we conclude that Father's arguments are not properly before this court at this time.
IV. Attorney's Fees
[¶42] Father also challenges the trial court's Order requiring him to pay $41,386.45 towards Mother's attorney's fees. Indiana Code section 31-14-18-2(a) permits a trial court to award attorney's fees in paternity actions:
The court may order a party to pay:
(1) a reasonable amount for the cost to the other party of maintaining an action under this article; and
(2) a reasonable amount for attorney's fees, including amounts for legal services provided and costs incurred, before the commencement of the proceedings or after entry of judgment.
In determining such award, the trial court should consider the parties' resources, their economic conditions, their respective ability to earn adequate income through employment, and other factors that bear on the reasonableness of the award. Gillette v. Gillette, 835 N.E.2d 556, 564 (Ind.Ct.App. 2005). The trial court may also look to the responsibility of the parties in incurring the attorney's fees. Mason v. Mason, 775 N.E.2d 706, 711 (Ind.Ct.App. 2002), trans. denied. The trial court has broad discretion in awarding attorney's fees. Barton v. Barton, 47 N.E.3d 368, 377 (Ind.Ct.App. 2015), trans. denied. "We may reverse the trial court's decision only if it is clearly against the logic and effect of the circumstances before the court." Thompson v. Thompson, 868 N.E.2d 862, 870 (Ind.Ct.App. 2007).
[¶43] The trial court made the following finding relevant to its grant of attorney's fees:
Mother has incurred attorney fees in the sum of $66,582.95. This is based on the sum of $63,446.50 which was incurred prior to the close of evidence, plus $3,136.45 incurred in introducing newly discovered evidence of Father's misconduct after the [c]ourt allowed the evidence to be reopened. The [c]ourt finds, based upon the testimony of the parties about their relative earning capacity, that Father has greater financial resources than Mother. The [c]ourt finds that Mother incurred substantial amount of attorney fees and spent considerable court time, presenting evidence of the Father's contemptuous behavior. The [c]ourt finds that Father should pay $41,386.45 of Mother's attorney fees, and that Judgment in favor of [Mother's attorney], be and is hereby entered against any real estate until said Judgment is paid in full. The [c]ourt finds that said Judgment shall bear interest at the statutory rate of 8% until paid in full. The [c]ourt finds that Father should pay said Judgment at the rate of $250.00 per week until paid in full.(Appellant's App. Vol. IV, p. 127, ¶ 151).
[¶44] Father first claims that the trial court did not conduct a hearing on Mother's request for attorney's fees. Father's argument is without merit. In its Order, the trial court, in its opening paragraph, listed Mother's motions for request for attorney's fees as pending before the trial court and for which evidence was taken over eleven hearings. Over the course of these proceedings, Father did not object to the introduction of Mother's affidavits for attorney's fees and, in so far as Father now asserts that a separate evidentiary hearing should have been held, he cannot be heard to complain.
[¶45] As a secondary issue, Father compares the award of attorney's fees to the calculation for child support, which was taken under advisement by the trial court as Father had not submitted a current pay stub. Because financial information was lacking for the determination of a child support determination, Father maintains that the trial court must also have lacked evidence to calculate an attorney's fee award. Father mischaracterizes the evidence. The trial court set a separate hearing for the purpose of calculating a weekly child support amount to receive evidence of the parties' present income, cost of health insurance, subsequent born children, and parenting time credit. The information required to calculate child support is not necessary to determine an award of attorney's fees, where evidence of the parties' finances is sufficient.
[¶46] The record reveals ample evidence regarding the parties' financial situation and "we assume this information was considered when the court awarded attorney's fees." Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind.Ct.App. 2012), trans. denied. The trial court was presented with evidence that Mother is a self-employed house cleaner, who averaged an income of $500 per week. She testified that she had only been able to pay $11,000 towards her attorney's fees and that the legal fees have broken her and her husband financially and emotionally. Father admitted in discovery to weekly earnings of $1,100, in addition to income from his turkey farm, which earns him about $96,000 per year. Evidence reflected that although Father had incurred attorney's fees of $96,937.41, he only had an outstanding balance of $28,796.89.
Father testified that he raised turkeys for Perdue Farms and makes about $26,000 per flock of turkeys raised. Father received about four flocks per year.
[¶47] Taking issue with the trial court's Order that Father should pay the attorney's fees at the rate of $250.00 per week until paid in full, Father insists that this "payment plan" violates the "wage garnishment" statute, I.C. § 24-4.5-5-105, which prohibits a garnishment of "more than 25% of the individual's disposable earnings for that week." (Appellant's Br. p. 89). Father's argument is unavailing as a "garnishment applies only where a third party possesses or control's" the garnished party's property and only after proper garnishment proceedings have concluded, neither of which is the case here. Bowyer Excavating, Inc. v. Ind. Dep't of Envtl. Mgmt., 671 N.E.2d 180, 184 (Ind.Ct.App. 1996), trans. denied.
[¶48] Lastly, Father's claim that the attorney's fees award fails to consider the impact of Mother's actions on the legal process, is nothing more than a request to reweigh the evidence, which we are not allowed to do. Based on the facts before us and mindful of the trial court's broad discretion in assessing attorney's fees, we affirm the trial court's award in favor of Mother.
V. Appellate Attorney's Fees
[¶49] Lastly, both parties request this court to assess appellate attorney's fees against the other party pursuant to Indiana Appellate Rule 66(E), which authorizes our court to award appellate attorney's fees. However, our discretion to award Rule 66(E) appellate attorney's fees is limited to circumstances where the appeal is "permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay." Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App. 2003). "[T]he sanction is not imposed to punish mere lack of merit but something more egregious." Troyer v. Troyer, 987 N.E.2d 1130, 1148 (Ind.Ct.App. 2013), trans. denied. As such, our court exercises caution in awarding appellate attorney's fees because of the "potentially chilling effect the award may have upon the exercise of the right to appeal." Holland v. Steele, 961 N.E.2d 516, 529 (Ind.Ct.App. 2012), trans. denied.
[¶50] Indiana appellate courts have formally categorized claims for appellate attorney fees into "procedural" and "substantive" bad faith claims. Thacker, 797 N.E.2d at 346. To prevail on a substantive bad faith claim, the party must show that the appellant's contentions and arguments are utterly devoid of all plausibility. Id. Procedural bad faith, on the other hand, occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. Id. at 347. Even if the appellant's conduct falls short of that which is "deliberate or by design," procedural bad faith can still be found. Id.
[¶51] Here, Father is seeking appellate attorney's fees related to the supplemental transcript of the telephone conference between the trial court, GAL, and the attorneys on December 17, 2020, which was raised as an issue in Father's motion for change of judge, filed on July 7, 2021 and summarily denied by the trial court on August 4, 2021.
[¶52] While preparing his appellate brief, Father discovered that Mother's attorney had recorded the telephone conference of December 17, 2020, by audio recorder. Taking the phone call in her office, Mother's counsel had audio-recorded the hearing for the purpose of notetaking and compiling a summary for her client. In an effort to compel Mother's counsel to turn over this audio-recording, Father filed a motion for supplemental transcript with the trial court on January 26, 2022, seeking a transcript of the telephone hearing. In response to the motion, the trial court affirmed that no official recording was made by the court but stopped short of ordering Mother's counsel to share her audio-recording. After Mother's counsel failed to respond to several messages from Father's counsel requesting a copy of the audio-recording, Father's counsel filed an "Advisement of Intent to Seek Supplemental Transcript Through Ind. Appellate Rule 31, and a Motion to Compel Any Recording That May Exist" with this court on February 10, 2022. (See Appellate Docket). The following day, February 11, 2022, Mother filed a Verified Response with this court, indicating that she did not believe she had any obligation to provide her recording to opposing counsel, as it would be the same as any keyboard-typed transcript or handwritten notes taken by any other attorney, but she nevertheless agreed to voluntarily make a copy of the recording available to Father's counsel.
[¶53] Without deciding whether an audio-recording of a telephone conference conducted between the trial court, GAL, and the parties' attorneys and recorded for counsel's note-taking purposes is required to be discovered to opponent's counsel, we conclude that this single incident of Mother's counsel's non-responsiveness, while perhaps annoying and frustrating to Father, does not rise to the level of egregiousness punishable under Appellate Rule 66(E). Ind. CPA Soc'y, Inc. v. GoMembers, Inc., 777 N.E.2d 747, 753 (Ind.Ct.App. 2002) (finding shortcomings in party's brief were not "so flagrant or significant as to taint the appeal as vexatious").
[¶54] In turn, Mother also requests this court for an award of appellate attorney's fees. In a single paragraph and without referencing the record or caselaw, Mother contends that an award would be appropriate for Father's "failure to cite evidence in the statement of the case that supports the trial court's order, and in having to defend the portion of this appeal that invites the court to re-weigh the evidence, to defend the mischaracterization of the trial judge's comments in the attorney conference, and the accompanying request for appellate attorney's fees." (Appellee's Br. p. 92). While Father's arguments might have lacked merit, in order to be entitled to appellate attorney's fees Mother was required to establish that these arguments were "utterly devoid of all plausibility" and were made in bad faith. See Thacker, 797 N.E.2d at 346. Mother failed to address this burden in her brief. Accordingly, neither party is entitled to appellate attorney's fees.
CONCLUSION
[¶55] Based on the foregoing, we hold that (1) the trial court did not abuse its discretion when it denied Father's motion for change of judge; (2) the trial court did not abuse its discretion when it modified custody of Child by granting
Mother sole physical and legal custody; (3) Father's argument that the trial court did not allow Father the opportunity to purge himself of the contempt was premature; (4) the trial court did not abuse its discretion by ordering Father to pay a portion of Mother's attorney's fees; and (5) neither party is entitled to appellate attorney's fees.
[¶56] Affirmed.
[¶57] May, J. and Tavitas, J. concur