Opinion
22A-DR-7
08-10-2022
Kevin K. Andrews, Sr., Appellant-Respondent, v. Kelly D. Andrews, Appellee-Petitioner.
Attorney for Appellant Donna J. Jameson Greenwood, 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 Monroe Circuit Court The Honorable Kelsey B. Hanlon, Judge Trial Court Cause No. 53C04-1001-DR-5
Attorney for Appellant Donna J. Jameson Greenwood, Indiana
MEMORANDUM DECISION
Tavitas, Judge
Case Summary
[¶1] Kevin Andrews, Sr. ("Father") appeals the trial court's modification of his parenting time. On appeal, Father contends that he was not a threat to his son's well-being. Given Father's documented and escalating anger issues and threats, we conclude that the trial court's modification of Father's parenting time was not clearly erroneous. Accordingly, we affirm.
Issue
[¶2] Father raises one issue, which we restate as whether the trial court's modification of Father's parenting time was clearly erroneous.
Facts
[¶3] Father and Mother were married and had one child, K.A., who was born in October 2006. K.A. has an autism spectrum disorder and is non-verbal. K.A. is learning to use a device for communication, but he is not yet proficient in using the device.
[¶4] In January 2010, Mother filed a petition for dissolution of marriage. The parties stipulated to the issuance of a protection order in favor of Mother and against Father. In August 2010, the trial court granted the petition for dissolution of marriage and found:
5. The parties do not have a good relationship. There is a protective order that prevents the Father from contacting the Mother except as set out in this order. The Father has exhibited explosive fits of anger and has used unusually vulgar, offensive and assaultive language in verbal and written communications to the Mother, exemplified by the language in his June 18, 2010 email to the Mother (Petitioner's Exhibit 2). It was not limited to that communication but was a pattern of abusive language, threats and vitriol.
7. [K.A.] had speech therapy that was interrupted when the therapist withdrew. The Father made derogatory comments about the Mother to the therapist and used vulgar language. The Father sent the therapist emails that the therapist considered threatening. The Father made threats about OSHA violations and the Better Business Bureau to induce the therapist to continue to see [K.A.]. The therapist spoke with the Sheriff and sought a protective order against the Father that was not granted by the court. The therapist was concerned about her staff and put up a notice about the Father at the therapist's office.
8. The Father had similar problems with the day care providers at the Salvation Army day care. The Father was upset because the Mother had changed [K.A.'s] day care. The Father called the director a vulgar name, causing her to retreat and lock the door. He also threatened suit. The Father has since mended his relationship with the director who said that before the incident reported above the Father was friendly and calm with staff, and has been - "basically great" except for that incident.
12. The court has considered the matters set out in Indiana Code 31-17-2-15 regarding an award of joint legal custody. While the fact that parties may not see eye to eye, and may have disagreements about child rearing does not rule out an award of joint custody, the court finds that the Father's extreme expressions of hostility to the Mother, and his apparent inability to control his reactions to the Mother and to other caregivers makes an award of joint legal custody unreasonable. No one should be required to be subjected to the sort of offensive language, ridicule, and abuse that the Father has engaged in. The court has also considered the Father's criminal convictions for Battery ((Petitioner's Exhibit 26), Assault IV under the laws of Kentucky (Petitioner's Exhibit 27), Stalking, a Class C felony (Petitioner's Exhibit 31), and Intimidation, a Class A
misdemeanor (Petitioner's Exhibit 32). The convictions are about 10 years old. They are, however, evidence that the Father has been willing in the past to do more than make threats and use harsh language. He has engaged in criminal conduct directed at members of the opposite gender. Joint legal custody is particularly inappropriate in this circumstance.
13. The Mother should have the legal custody of [K.A.].
14. The Mother testified that she only reluctantly agreed to Guideline parenting time for the Father, and believes that overnights should be suspended, due to the erratic and hostile behavior of the Father. However, the Father has continued to see [K.A.] during the interim period for almost eight months, and the Father appears able to provide appropriate care for [K.A.]. Even though the Father has had inappropriate interactions with the Mother, a therapist, the day care provider, and the Mother's attorney, there is no showing that he has not been appropriate in his care of [K.A.]. While evidence of continuing abusive behavior may necessitate a reevaluation of parenting time, the Mother has not proven by a preponderance of the evidence that visitation with Father would endanger [K.A.'s] physical health or well-being or significantly impair his emotional development.
15. The Father should continue to have parenting time with [K.A.] pursuant to the Indiana Parenting Time Guidelines for a child age five (5) or older, with overnight parenting time on Wednesdays.Appellant's App. Vol. III pp. 88-89.
[¶5] Following the dissolution, the parties have almost continuously litigated disputes regarding marital property, Mother's relocation to Kentucky, child support, parenting time, and contempt issues. See Appellant's App. Vol. III pp. 3-86 (chronological case summary). The trial court has noted that Father and Mother are "high conflict parents." Id. at 104. For example, in 2015, in addressing a motion for rule to show cause filed by Father, the trial court noted:
There is no evidence that the Mother has intentionally obstructed the Father's communication with [K.A.]. There is persuasive evidence that the Father has alienated [K.A.'s] service providers to the point that they do not want any contact with the Father. While the Father's frustration with long distance communication with [K.A.] is understandable, the hostility he has shown to service providers is not. The Father would be well advised to mend his fences with those educational, medical and therapeutic service providers, and future such service providers, as their assistance is critical to the Father's stated intention of being fully involved in his son's care. It is very likely that the Father will need the assistance of such professionals to stay in touch with [K.A.] using remote means.Id. at 104. The trial court noted that a Kentucky Domestic Violence Order of Protection preventing Father from contacting Mother was issued in June 2014 and was in effect until June 2017.
[¶6] In 2018, in addressing a motion to modify custody filed by Father, the trial court found:
The Court finds that the parties' high conflict relationship has not changed. The parties continue to demonstrate a high level of distrust and an inability to consistently communicate or cooperate in [K.A.'s] care. Father has not demonstrated that Mother is unable to adequately care for the child; those providers working most closely with Mother and [K.A.] have no concerns about Mother's care. Father has not demonstrated that Mother has "frequently modified" his parenting time unilaterally or that
Mother has alienated him from service providers in Monroe County. If Father is alienated from any service providers, it is a result of his own abrasive and reactive interactions with them, such as requiring excessive information on demand, or threatening legal action when they do not provide him with a desired response. This is a behavior that Father has not changed from previous Court proceedings. Because Father has failed to meet his burden that circumstances have not changed with respect to Mother's care of [K.A.], the Court denies Father's Motion to Modify Custody.
With this Order, Court also stresses that Father appears to be a loving and highly committed father to [K.A.], and [K.A.] is fortunate that Father is so devoted. There is no evidence to suggest that Father's interactions with [K.A.] are anything but positive. However, Father's reactive and bombastic behavior towards, and distrust of, [K.A.'s] service providers and Mother (Father admits that he has retaliated against Mother with accusations of mental illness and uses vulgar language in the heat of the moment) contribute to ongoing conflict that is not in [K.A.'s] best interests.Id. at 118. The trial court also found Father in indirect contempt because Father "continued to threaten legal action and to speak abusively to and about Mother . . . ." Id. at 120. The trial court granted another order of protection for Mother at that time.
[¶7] In December 2020, Mother filed a petition to modify Father's parenting time. Mother requested that Father's parenting time be supervised because Father had been charged with perjury and distribution of an intimate image in one matter and theft in another matter. Mother alleged that "law enforcement approached Father at his home during his parenting time with the minor child" while investigating Father. Id. at 138. Mother also alleged that, in addition to the protection order in this matter, Father is "now subject to three other civil orders of protection." Id.
[¶8] Mother also filed a motion for Father to undergo a psychological evaluation, which the trial court granted. The psychologist reported that Father's defensiveness "may have affected or distorted his report of symptomology." Ex. Vol. I p. 12. "Validity indexes indicate [Father] may not have answered in a completely forthright manner thus leading the evaluator to form a somewhat inaccurate impression of him." Id. The psychologist recommended that "it may be appropriate for [Father] to undergo a different personality measure to obtain valid scores." Id. at 14.
[¶9] At a September 2021 hearing on Mother's motion to modify parenting time, Indiana State Trooper Stacey Brown testified that he investigated Father for perjury, obstruction of justice, and a "revenge porn" case. Tr. Vol. I p. 16. Trooper Brown conducted a search of Father's residence. K.A. was at Father's residence at the time. As part of the search, Trooper Brown seized Father's cell phone. Trooper Brown discovered text messages that Father sent to a business partner in which Father threatened to "end him and his career" and threatened to post "another video on Pornhub against the wishes of the other individual." Id. at 21. Trooper Brown testified that Father seemed to have "difficulty controlling his emotions even in the text messages." Id.
[¶10] Father then reached out to Trooper Brown through phone calls and emails. Father "had complaints about the state government, the county government, department of child services, the county police, [and] the judges and prosecutors here in Monroe County." Id. at 22. Father also repeatedly left threatening voice mails for a Monroe County deputy prosecutor, resulting in charges for intimidation, a Level 5 felony. Trooper Brown opined that Father's behavior was becoming unstable.
[¶11] Mother also presented evidence that Father repeatedly left harassing voicemails for Mother's attorney. In the voicemails, Father claimed that Mother was "a child abuser," a "liar", "faking co-parenting", "a f***ing moron"; the trial court judge was "bad . . . really bad"; and Mother's attorney was a "fat a**." Id. at 53, 54, 55, 57. After Mother posted condolences on Father's grandfather's funeral website, Father said, "[Mother] pissed off the huge Muslim population in Detroit, good luck everybody. F***ing moron . . . f***ing dumba**." Id. at 57.
[¶12] Further, Mother presented evidence of Father's abusive communications through Our Family Wizard. In November 2020, on Our Family Wizard, Father threatened to "call[ ] in well-fare [sic] checks daily with LMPD"; called the trial court judge "the enemy"; and alleged that Mother "kills babies drinking and driving and has multiple affairs." Ex. Vol. I p. 74. In December 2020, Father posted the following to Our Family Wizard:
[Y]ou flat committed perjury to get a PO extension and J. Martin violated the ethics of the bench - again. [T]he whole thing will
be overturned[.] [D]o as you are ordered to do and allow my child and I communication or I am going to the FBI and DCS KY and IN and I'm sharing all our data[.] [T]his crap you started using our child to merely hurt me legally comes to an end once and for all[.] Amen.Id. at 72. Mother testified that Father's "erratic behavior was escalating." Tr. Vol. I p. 108. According to Mother, Father is "not getting better, he's getting worse . . . ." Id. at 109.
[¶13] After the September 10, 2021 hearing, the trial court entered an order on September 17, 2021. The trial court noted that Father "has a long history of engaging in angry, abusive, and intimidating conduct with Mother and other persons involved with [K.A.]." Appellant's App. Vol. II p. 3. The trial court also noted:
5. Since 2010, eleven (11) separate Petitions for Civil Orders for Protection have been filed against Father in Indiana. Eight of these Petitions were granted. Two of these have been granted in favor of Petitioner Mother and the Protective Order issued under 53C04-1806-PO-1121 has been extended and remains in effect. Father has violated that Order and the Court addresses his contempt by separate Order.
6. The Protective Orders issued against Father evince an ongoing pattern of threatening and harassing behavior on the part of Father.
7. Father was convicted of Stalking, Intimidation and Harassment on December 13, 2000, under Cause No. 48COl-0007-CF-180.
8. Father was convicted of Intimidation on May 6, 2002, under Cause No. 48C01-0101-CM-021.
9. Father has pending charges of Theft under Cause No. 53C02-2010-CM-1834.
10. Father has charges of Perjury and Distribution of an Intimate Image pending under Cause No. 53CO2-2010-F6-981. Father is alleged to have posted a video taken of a sexual partner on [a] pornography website without the consent of the victim. Father is also alleged to have lied under oath in [a] Court proceeding.
11. [K.A.] was present at Father's home when a search warrant relating to this matter was served. Father and [K.A.] were removed from the home so that warrant could be executed.
12. At the conclusion of the September 10, 2021 Hearing, Father was arrested on a Warrant issued under Cause No. 53C02-2109-F5-761, on charges of Intimidation. The Information alleges that Father threatened the Monroe County Prosecutor, with the intent that she be placed in fear that the threat will be carried out. The incident is alleged to have occurred in June of 2021.
13. Detective Stacy Brown with the Indiana State Police is investigating Father's two most recent criminal cases. In response to Detective Brown's investigation, Father has reached out to Detective Brown by phone and email indicating that he planned to sue him and file complaints and that if he did not stop the investigation Detective Brown would be arrested.Id. at 5-6.
[¶14] Although Father is "a committed and devoted parent to [K.A.]", the trial court found that "Father has not ensured the Child attends speech and occupational therapy during the summertime"; Father has "harassed and threatened others"; and "[i]f [K.A.] is placed in harms way because of Father['s] anger or aggressive conduct toward others, [K.A.] is not able to let others know." Id. at 7. The trial court concluded:
31. Father has engaged in a pattern of communication with Mother that has caused Mother anxiety and emotional exhaustion. This has taken resources and attention away from [K.A.].
32. Father is not in control of his anger and lashes out at those who disagree with him.
33. Father's problems with interpersonal interactions have been noted as a concern by this Court repeatedly. Father has not shown due regard for the Court's stated concerns and continues to threaten and harass others. The situation appears to be escalating.
34. Until Father gets help controlling his anger and aggression, unsupervised parenting time presents a credible threat to [K.A.'s] wellbeing.
35. It is the Court's sincere hope that Father seeks and completes a course of counseling that assists him in gaining insight to the problematic nature of his anger and aggression towards others, ceases the behavior that has made him the subject of three pending criminal matters and numerous Protective Orders, and refocuses his energy and effort on being a supportive, attentive co-parent to [K.A.].
36. An Order substantially limiting the need for communication between the Parties is in [K.A.'s] best interests.Id. at 8.
[¶15] The trial court then ordered supervised parenting time, which will continue until: (1) Father enrolls in and completes counseling to address his anger management issues; (2) "Father demonstrates a pattern of behavior showing he has benefitted" from the counseling; and (3) the trial court conducts a hearing regarding Father's parenting time. Id. at 9. The trial court also advised Father that "future threatening or harassing behavior may result in further restriction of his parenting time." Id. at 10.
[¶16] After the trial court's order, Father, pro se, filed a motion for change of judge pursuant to Indiana Trial Rule 76. The motion contains rambling accusations against Mother, Mother's counsel, the trial court judge, former judges assigned to the matter, and police officers; contains racist commentary related to a completely different investigation by a police officer; and alleges ethics violations by the trial court judge. The trial court then recused, and a special judge was appointed. Father filed a motion to correct error. After a hearing, the special judge denied Father's motion to correct error. Father now appeals.
Discussion and Decision
[¶17] Father appeals the trial court's modification of his parenting time. The trial court here entered, sua sponte, findings of fact and conclusions thereon in its order regarding parenting time. "Where a trial court enters findings sua sponte, the appellate court reviews issues covered by the findings with a two-tiered standard of review that asks whether the evidence supports the findings, and whether the findings support the judgment." Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). "A finding is clearly erroneous when there are no facts or inferences drawn therefrom which support it." Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). We neither reweigh the evidence nor judge the credibility of the witnesses. Id. We consider only the evidence and reasonable inferences drawn therefrom that support the findings. Id. We review the trial court's legal conclusions de novo. Id.
Mother did not file an appellee's brief. "[W]here, as here, the appellee [ ] do[es] not submit a brief on appeal, the appellate court need not develop an argument for the appellee[ ] but instead will 'reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.'" Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020) (quoting Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014)). "Prima facie error in this context means 'at first sight, on first appearance, or on the face of it.'" Id. This less stringent standard of review "relieves [us] of the burden of controverting arguments advanced in favor of reversal where that burden properly rests with the appellee." Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind.Ct.App. 2014) (citing Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct.App. 2002)). We are obligated, however, to correctly apply the law to the facts in the record in order to determine whether reversal is required. Id. (citing Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)).
[¶18] Parenting time decisions require us to "'give foremost consideration to the best interests of the child.'" Id. (quoting Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind.Ct.App. 1998), trans. denied). "Parenting time decisions are reviewed for an abuse of discretion." Id. "Judgments in custody matters typically turn on the facts and will be set aside only when they are clearly erroneous." Id. "We will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment." Id. "[I]t is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
[¶19] Our Supreme Court has held that "[a]ppellate 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." 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, 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." Id.
[¶20] Pursuant to Indiana Code Section 31-17-2-21, "a modification of physical custody requires a showing of the child's best interests and a substantial change in one of the factors listed in Indiana Code Section 31-17-2-8." Miller v. Carpenter, 965 N.E.2d 104, 110 (Ind.Ct.App. 2012). Parenting time, however, may be modified "whenever modification would serve the best interests of the child." Id. (citing Ind. Code § 31-17-4-2). "Thus, unlike a modification of physical custody, a modification of parenting time does not require a showing of a substantial change." Miller, 965 N.E.2d at 110.
[¶21] Indiana Code Section 31-17-4-2 provides:
The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's
parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development."Although the statute uses the word 'might,' this Court has previously interpreted the language to mean that a court may not restrict parenting time unless that parenting time 'would' endanger the child's physical health or emotional development." S.M. v. A.A., 136 N.E.3d 227, 230 (Ind.Ct.App. 2019) (citing Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind.Ct.App. 1988), trans. denied).
[¶22] Father contends that unsupervised parenting time with Father does not present a credible threat to K.A. According to Father, his criminal charges, protection orders, and harassment of others has not impacted K.A. Father argues that "[n]o evidence was presented that [Father] has acted aggressively or directed his anger at [K.A.]." Appellant's Br. p. 13.
[¶23] Father relies, in part, upon our decision in D.B. v. M.B.V., 913 N.E.2d 1271, 1275 (Ind.Ct.App. 2009), where we reversed the trial court's complete termination of a father's parenting time. We, however, held that:
[W]hile the complete termination of parenting time is not supported by the evidence, the record would support an order for supervised parenting time. Such an order would be appropriate given the volatile relationship between the parties, the ages of the children, and the concern of one therapist that supervision of parenting time would protect Father from unfounded accusations. On remand, should the trial court restrict Father's parenting time upon entry of the requisite statutory finding of
endangerment, we encourage the trial court to order that the parenting time be supervised.D.B., 913 N.E.2d at 1275. D.B. does not support Father's arguments. The trial court here did not order a complete termination of parenting time; rather, the trial court ordered supervised parenting time, as this Court recommended in D.B.
[¶24] Father also relies, in part, upon Farrell v. Littell, 790 N.E.2d 612 (Ind.Ct.App. 2003), where the trial court suspended a father's parenting time after the child exhibited sexualized behavior. The trial court was uncertain, however, whether the child had been subject to inappropriate sexual conduct by the father. On appeal, given the lack of evidence that the father molested the child, we held "the record would not have permitted a finding that [the father's] visitation would endanger [the child's] physical health or well-being or significantly impair [the child's] emotional development." Farrell, 790 N.E.2d at 617.
[¶25] Here, however, the trial court's findings are supported by the evidence. The trial court concluded that Father's unsupervised parenting time with K.A. "presents a credible threat to [K.A.'s] wellbeing." Appellant's App. Vol. II p. 8. The trial court made findings that Father's threatening and harassing behavior has existed for a substantial amount of time and has recently escalated. Since the parties' divorce, Father has threatened and harassed Mother, K.A.'s service providers, the prior guardian ad litem, and numerous others. Multiple orders of protection have been filed against Father by various people, and eight have been granted. Father has criminal convictions for stalking, intimidation, and harassment in 2000; intimidation in 2002; and pending charges for theft, perjury, distribution of an intimate image, and intimidation. Father sent abusive voicemails to Mother's counsel and left abusive messages on Our Family Wizard.
[¶26] The trial court noted that Father's behaviors seem to "be escalating," and evidence was presented to support that finding. Appellant's App. Vol. II p. 8. Even after the trial court modified Father's parenting time, Father filed more abusive pleadings, resulting in the trial court judge's recusal from this matter. The issues with Father's conduct are even more concerning given K.A.'s difficulties communicating. K.A. is nonverbal and is learning to communicate on a device. Under these circumstances, we cannot say the trial court's order of supervised parenting time is clearly erroneous.
Conclusion
[¶27] The trial court's modification of Father's parenting time is not clearly erroneous. Accordingly, we affirm.
[¶28] Affirmed.
Riley, J., and May, J., concur.