Opinion
24A-JP-587
10-22-2024
Carmen Lewis, Appellant-Respondent v. Mark Hileman, Appellee-Petitioner
Attorney for Appellant Erik H. Carter Carter Legal Services LLC Noblesville, Indiana Attorney for Appellee Denise F. Hayden Lacy Law Office LLC Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hendricks Superior Court The Honorable Robert W. Freese, Judge Trial Court Cause No. 32D01-2112-JP-223
Attorney for Appellant Erik H. Carter Carter Legal Services LLC Noblesville, Indiana
Attorney for Appellee Denise F. Hayden Lacy Law Office LLC Indianapolis, Indiana
MEMORANDUM DECISION
KENWORTHY, JUDGE
Case Summary
[¶1] Carmen Lewis ("Mother") appeals the trial court's order regarding the physical custody of her minor daughter, C.H. ("Child"), with Mark Hileman ("Father"). Mother claims the trial court reversibly erred by sua sponte modifying physical custody of Child. We affirm.
Facts and Procedural History
[¶2] Mother and Father (collectively, "Parents") are the biological parents of Child, born in March 2014. Father is a firefighter who receives two full days off between his twenty-four-hour workdays. Additionally, Father's work schedule permits him five straight days off at various times in his three-week work cycle.Mother works as a server and a freelance esthetician, providing her with a flexible schedule.
Father receives five consecutive days off following his sixth day worked because of what are known as "Kelly" days, or more specifically here, a "five-day Kelly."
[¶3] Parents lived together with Child in Brownsburg, Indiana until Child was almost five years old. Around this time, Mother moved out with Child, but still lived near Father. In December 2021, Father petitioned to establish paternity, sought a temporary restraining order, and objected to Mother's relocation with Child. Mother moved to Indianapolis a week later. In her response to Father's petitions, Mother sought sole legal and physical custody of Child, subject to Father's parenting time as determined by the court.
[¶4] During a January 25, 2023, hearing, the trial court explained it conducted a pretrial conference with the attorneys and learned Parents had resolved some of the outstanding issues. Father's attorney then read a proposed partial agreement made between Parents into the record. Parents agreed, among other things, Father is the biological father of Child and Parents would "share physical custody" of Child. Tr. Vol. 2 at 4. The partial agreement also set forth Father's child support obligation. Father's midweek overnights with Child, however, remained a "bone of contention" under the partial agreement, along with whether Parents would have joint legal custody of Child and who was responsible for transporting Child for parenting time. Id. at 6. Apart from these three unresolved issues, Parents confirmed they were willing to be bound by the partial agreement. The trial court tasked Father's attorney with reducing the agreement to writing and collecting Parents' signatures.
[¶5] At the same hearing, Mother confirmed the current parenting time split between Parents: "[Father] basically has [Child] for a day and a half and [Mother] ha[s] [Child] for a day and a half[.]" Id. at 15. Parents had been operating under this schedule for the past three years. Mother then explained she would like that schedule "to continue" because it ensured Child "wakes up to one of her parents everyday." Id.; see also id. at 33 (Mother explaining she wanted "what has consistently been happening in [Child's] schedule [to] remain the same"). The trial court concluded the hearing by reminding Father's attorney to submit a written version of the partial agreement between Parents.
[¶6] About a week later, Father's attorney reported to the court that the parties "could not reach a consensus" regarding the partial agreement's terms. Appellant's App. Vol. 2 at 30. The trial court gave the parties another week to submit a written agreement. Ultimately, the parties never sent a signed, written agreement to the trial court.
[¶7] On April 5, 2023, the trial court issued its "Final Order Establishing Paternity, Child Support, and Other Related Matters," noting the parties had "failed to submit their agreement[.]" Id. at 32. Under the order, Father was awarded parenting time during the school year on the mornings he gets off work until the start of school the next day. Parents were also to "maintain the regular parenting time schedule through the summer" and Father was to have Child during "all of his Kelly days off." Id. at 33.
[¶8] Toward the end of August 2023, Father filed an emergency petition to enforce parenting time. In his petition, Father claimed the "times and dates" in the trial court's April 5 order "clearly need to be specified." Id. at 35. On September 28, following a hearing, the trial court entered a "more specific order." Tr. Vol. 2 at 52. In the order, the trial court explained Parents agreed to "share physical custody" of Child and mid-week parenting time was to be overnight. Appellant's App. Vol. 2 at 37. The trial court also attached as an exhibit to the order the portion of the transcript during which Father's attorney read the partial agreement into the record, and rescinded its April 5 order.
In general, "Indiana courts encourage parties to negotiate agreements regarding custody and parental visits." Russell v. Russell, 223 N.E.3d 708, 714 (Ind.Ct.App. 2023). "The only requirement is that the agreement be in the child's best interest." Id. So, "when reasonable parents are capable of carrying out their agreement without court intervention, the judge should defer to the parents' agreement and refrain from imposing his or her personal conception of a preferential arrangement." Keen v. Keen, 629 N.E.2d 938, 941 (Ind.Ct.App. 1994). But not all agreements between parties regarding child custody are automatically binding on the trial court. See Russell, 223 N.E.3d at 715. Rather, when an agreement might endanger the child's physical health, impair her emotional development, or is ambiguous, unworkable, or will demand further litigation, deference to the parties' agreement dissipates. See Keen, 629 N.E.2d at 941. Here, Parents agreed to "share physical custody" of Child. Tr. Vol. 2 at 4. Because a continuum of custody arrangements fit within the meaning of "shared physical custody," the term was ambiguous. See Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 532 (Ind. 2006) (noting language is ambiguous if reasonable people could come to different conclusions as to its meaning). This ambiguity led to further litigation and could have been a basis for the trial court to reject Parents' partial agreement. See Keen, 629 N.E.2d at 941.
[¶9] In early October 2023, the trial court appointed a parenting coordinator. Soon after, Father sought to hold Mother in contempt for violating the trial court's September 28 order. Mother responded and requested a declaratory judgment, arguing the September 28 order was "crystal clear and cannot be misinterpreted" regarding when Father's parenting time occurs. Id. at 52. A few weeks later, the parenting coordinator shared that after meeting with Mother and Father, "neither appear[ed] to understand their individual legal rights nor when they are to have parenting time with [Child]." Id. at 61. In the parenting coordinator's opinion, "Mother and Father do not agree to the language in the agreement, the attorneys do not agree as to what the agreement means and it has left the parties scrambling as it relates to who has [Child] and [Child] not knowing where she should go[.]" Id. at 63.
[¶10] The parenting coordinator's second report echoed her first: "What continues to be clear to the undersigned is that no one has the same interpretation of the court's order of September 28, 2023, and moreover there is no interest by either parent as it relates to compromise on the issue of parenting time." Id. at 69-70. The parenting coordinator also sought to be released. A few days later, the trial court released the parenting coordinator and set a hearing for early February 2024.
[¶11] At the outset of the February 4, 2024, hearing, the trial court explained it had an off-the-record pretrial conference with the attorneys "to try and make sure the Court understood all of the issues[.]" Tr. Vol. 2 at 56. With Parents present, the trial court continued: "Both counsel agreed that . . . in reality what we are doing is we are here to determine a more specific and more understandable parenting time order and that should take care of all of the petitions that are pending." Id. Both Mother's and Father's attorneys confirmed the trial court's understanding was correct. Before taking evidence, the trial court clarified: "I just want to make sure that I am on the same page as you guys are that the . . . current [child] support is based on in reality . . . about a 50 50 split of parenting time" and there is "probably not a need to modify the child support previously entered unless the Court would substantially differentiate from an almost equal parenting time[?]" Id. Again, attorneys for both parents confirmed the trial court's understanding was correct.
[¶12] Father testified first. When asked what he wanted his parenting time schedule with Child to be, Father answered, "[F]irst and foremost . . . 50/50 is what I was looking for." Id. at 60. Later, Father shared he wanted his parenting time to remain as it was under the partial agreement read into the record, which his attorney classified as "joint physical custody." Id. at 67. Mother testified she believed a schedule of two overnights with her for every one overnight with Father was in Child's best interest. And when Mother was asked if a "50/50 equal division of parenting time" was possible under Father's proposed schedule, Mom responded, "No." Id. at 102-03.
[¶13] Following the presentation of evidence, the trial court reminded Parents that their failure to work together would cause Child to "to suffer more than she has been." Id. at 127. The trial court then shared the parties were "going to get a specific order" because based on everything the trial court heard, that "is what it needs to be. We tried something in September[, but nobody] agreed to . . . what it meant." Id. at 128.
[¶14] The trial court issued its final order on February 14, 2024, awarding equal parenting time to Parents on an alternating week-by-week schedule. A Parenting Time Credit Worksheet attached to the trial court's order stated Mother and Father were to each have 184 overnights with Child per year. And the trial court did not modify Father's child support obligation.
Mother waived her argument that the trial court reversibly erred by sua sponte modifying custody.
[¶15] Mother contends the trial court erred in sua sponte modifying physical custody of Child when it entered its February 14 order. Broadly speaking, Mother is correct: a trial court cannot sua sponte order a change in custody. See, e.g., State ex rel. Davis v. Achor, 75 N.E.2d 154, 157 (Ind. 1947); Bailey v. Bailey, 7 N.E.3d 340, 344 (Ind.Ct.App. 2014) (noting a modification can ordinarily be ordered "only after a party has filed a petition requesting such a modification, the other party has notice of the filing, and a proper evidentiary hearing is held at which both parties may be heard and the trial court fully apprised of all necessary information regarding change of circumstances and a child's best interests"). In making her claim, however, Mother overlooks her role in the leadup to and during the February 2024 hearing.
[¶16] Within weeks, disagreement among Parents concerning the meaning of the trial court's September 25 order was rampant. Father sought to hold Mother in contempt for not complying with the order; Mother sought a declaratory judgment regarding the meaning of the order; and the parenting coordinator repeatedly expressed neither Parents nor their attorneys shared a common understanding of the order. To resolve the ongoing dispute, the trial court scheduled a hearing. Before taking evidence, the trial court made clear it was going "to determine a more specific and more understandable parenting time order." Tr. Vol. 2 at 56. Attorneys for both parties agreed they and the trial court were "on the same page" and a "more specific" order would resolve all outstanding issues-including those relating to Mother's request for a declaratory judgment. Mother and Father then testified concerning parenting time and physical custody of Child. Id.
[¶17] Mother may not now complain about the contents of the trial court's February 14 order when, at the outset of the relevant hearing, she agreed with the trial court's assessment that a "more specific" order was needed and then testified in support of her interpretation of the prior order. See In re Paternity of E.B.K., N.E.3d ____, 2024 WL 3808796, at *7, No. 23A-AP-2316 (Ind.Ct.App. Aug. 14, 2024) (concluding mother waived her challenge to the validity of a trial court's temporary custody order by agreeing to the procedure-a summary presentation of evidence at an emergency hearing-that resulted in the order). Put simply, the trial court made its prerogative known to Parents at the outset of the hearing and Mother waived her appellate claim by not first raising her concerns with the court below. See Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018) (explaining the rule of waiver is designed, in part, to promote fairness by preventing a party from acquiescing to a trial court's decision, only to cry foul after receiving an unfavorable result) (internal quotations omitted).
Conclusion
[¶18] Mother waived her claim that the trial court erroneously sua sponte modified custody.
Mother also contends the trial court lacked a "rational or evidentiary basis for concluding that the parties could not agree on parenting time[.]" Appellant's Br. at 18. The trial court heard ample evidence Parents disagreed on parenting time. For example, the parenting coordinator observed "Mother and Father do not agree to the language in the agreement" and considered it "clear" that neither party "ha[d] the same interpretation of the court's order of September 28, 2023, and moreover there is no interest by either parent as it relates to compromise on the issue of parenting time." Appellant's App. Vol. 2 at 63, 69-70. This alone was an adequate evidentiary basis for the trial court's determination.
[¶19] Affirmed.
Brown, J., and Felix, J., concur.