Opinion
Court of Appeals Case No. 21A-DC-1967
04-12-2022
Kenneth HARVEY, Appellant-Petitioner, v. Nicole DRAKE, Appellee-Respondent.
Attorney for Appellant: Danielle L. Gregory, Law Office of Danielle Gregory PC, Indianapolis, Indiana Attorney for Appellee: Karen A. Wyle, Bloomington, Indiana
Attorney for Appellant: Danielle L. Gregory, Law Office of Danielle Gregory PC, Indianapolis, Indiana
Attorney for Appellee: Karen A. Wyle, Bloomington, Indiana
MEMORANDUM DECISION
Bradford, Chief Judge.
Case Summary
[1] Kenneth Harvey ("Father") and Nicole Drake ("Mother") were married in 2013, and K.H. was born to the marriage in February of 2018. Father petitioned for dissolution of the marriage in January of 2019, and the dissolution court awarded joint custody of K.H. to Father and Mother on a provisional basis. In June of 2019, K.H. sustained bruises while in Father's care, which ultimately led to Father being given professionally-supervised visitation. In December of 2019, the dissolution court issued its dissolution order, in which it granted Mother sole legal and primary physical custody of K.H., awarded Father up to six hours of supervised visitation per week at his expense, and set Father's child-support obligation at $138.85 per week.
[2] In April of 2021, Father moved to reconsider parenting time and child support, and the dissolution court held an evidentiary hearing on the motion the same month. In August of 2021, the dissolution court issued its order, in which it denied Father's requests for unsupervised visitation and to lower his child-support obligation. Father contends that (1) several of the dissolution court's findings are unsupported by the evidence, (2) the dissolution court was required to make specific findings that unsupervised visitation was a danger to K.H.’s physical health or would significantly impair his emotional development, (3) the dissolution court abused its discretion in denying his request for unsupervised visitation, and (4) the dissolution court abused its discretion in denying his request to modify his child-support obligation. Because we disagree with all of Father's contentions, we affirm.
Facts and Procedural History
[3] Mother and Father were married on September 5, 2013, and K.H. was born on February 17, 2018. Father petitioned for dissolution of his marriage to Mother on January 2, 2019. On February 7, 2019, the dissolution court issued a provisional order awarding joint custody to Mother and Father, with Father parenting K.H. from 5:00 a.m. to 3:30 p.m. during the week with unsupervised parenting time every other weekend from 5:00 a.m. on Saturday until 3:30 p.m. on Monday. On April 8, 2019, a guardian ad litem ("GAL") was appointed in the dissolution matter.
[4] On or about June 19, 2019, K.H. was returned to Mother from Father's care with bruises that were later determined to have been non-accidental. On June 20, 2019, the Department of Child Services ("DCS") placed K.H. in Mother's care and petitioned the juvenile court to have him found to be a child in need of services ("CHINS"), and the juvenile court subsequently issued an order of protection against Father regarding K.H. At some point during the CHINS proceeding, Father was awarded professionally-supervised parenting time with K.H. On September 17, 2019, Father was charged with Level 6 felony battery of a person less than fourteen years old, and, two days later, a no-contact order was issued concerning Father and K.H. On October 3, 2019, the juvenile court adjudicated K.H. to be a CHINS. On December 26, 2019, the dissolution court issued its order of dissolution, awarding sole legal and primary physical custody of K.H. to Mother, setting Father's child-support obligation at $138.85 per week (retroactive to June 17, 2019), and granting Father up to six hours of professionally-supervised parenting time per week at his expense.
[5] On February 5, 2020, GAL Melissa Richardson recommended to the dissolution court that parenting time continue to be professionally-supervised and that the dissolution court deny Father's request that Father's mother supervise his parenting time with K.H. On March 25, 2020, GAL Richardson issued an update to the dissolution court reporting, inter alia , that, while Father had met his therapeutic goals for individual therapy, his therapist could offer no opinion on his safety as a parent as she had not seen him and K.H. together. The report also indicated that (1) the criminal charge against Father had been dropped because of doubts that Father could be proven to be the person who had battered K.H.; (2) the CHINS case had been dismissed, but only because of the order for supervised visitation; (3) Father had not yet completed a court-ordered batterer's treatment program; and (4) GAL Richardson believed that K.H. would not yet be safe with Father in unsupervised visitation.
[6] On October 8, 2020, Father completed the batterer's treatment program. Ron Smith, the person in charge of the program, informed GAL Richardson that Father had never admitted to injuring K.H. and that Smith could not offer an opinion on whether the situation that had led to the injuries had been remedied. Smith also indicated that the program had involved neither therapy nor an assessment as to future safety. Approximately one week after completing the program, Father was arrested for battery with a deadly weapon. On December 3, 2020, Father moved for reconsideration of parenting time, which motion was amended to include reconsideration of child support on April 6, 2021.
[7] As for how Father's parenting time with K.H. has gone, after a period early in the parenting time routine when K.H. would cry and vomit during parenting time, Father's supervised parenting time has generally gone well. During four visits in July and August of 2020, however, K.H. clung to Mother, cried, and was too upset for the visit to proceed. Mother and her mother ("Grandmother") made several attempts to adjust the routine of the visit in ways that might reassure K.H., to no avail.
[8] Both parents have worked with GAL Richardson to find a way for Father's parenting time to resume. For a while, Father's supervised parenting time took place at Grandmother's home. When parenting time at Grandmother's began, K.H. appeared anxious, staying on Grandmother's lap until Father brought a gift for him. Grandmother was afraid of Father but overcame her concerns given the need for K.H. to have consistency in spending time with Father and the assurance that the supervisor would remain at all times. After Father's arrest for assault with a deadly weapon, Grandmother did not feel able to continue hosting the visits. Grandmother later testified that allowing Father unsupervised parenting time with K.H. would be "a horrific mistake." Tr. Vol. II. p. 176.
[9] Father's supervised parenting time eventually resumed at Family Solutions. Father wished for his mother to supervise the visits, but GAL Richardson opposed that arrangement because Father had been staying with his mother the weekend K.H. had been injured. Cynthia Ware, the visitation supervisor, and GAL Richardson, however, agreed that supervised visitation between Father and K.H. posed no safety concerns. Neither Father's therapist nor Smith could confirm Father's rehabilitation, and neither was willing to opine that these services resulted in K.H. being safer in Father's care than before Father participated in them. Father's therapist had worked with him only on his own mental health, never saw him with K.H., did not assess his safety with a child, and could not offer an opinion on whether a child would be safe with him.
[10] On April 8 and June 22, 2021, the dissolution court held an evidentiary hearing. GAL Richardson expressed significant concerns about K.H.’s safety should Father receive unsupervised parenting time and advised the dissolution court that unsupervised parenting time remained unsafe in 2021. GAL Richardson based this statement on her discussions with Father's therapist and the provider of the batterer's program; Father's continuing criminal history; K.H.’s youth and inability to make an adequate report; and the fact that without an adequate explanation of how K.H. was injured in Father's care, there could be no plan for preventing another significant injury. Father blamed the imposition of supervised parenting time entirely on Mother.
[11] The dissolution court also heard evidence regarding Father's history of criminal activity and domestic violence. Father has served more than one term in prison, with the most recent term of three or four years ending in 2012. At the time of the March 9, 2020, hearing in this cause, Father had a pending charge of battery on a person less than fourteen years old. The dissolution court admitted evidence that Father's history of domestic violence against Mother includes putting her head through a wall; slamming her head on a countertop in front of her older son; attempting to push her down a flight of stairs while she was seven months pregnant, also in front of her older son; actually pushing her down a flight of stairs, which resulted in Mother sustaining a fractured ankle and a bruise on her head ; refusing to let her go to the hospital for those injuries; kicking her and her young son out into the snow at 2:00 a.m.; and grabbing her hair while she was holding K.H. Mother testified that on one occasion in March of 2019, Father, while holding one-year-old K.H., found a soap dispenser with the initial "D" on it, and K.H. began shouting male names starting with D. Father became extremely angry and told K.H., "If you say his name, I'll kill you and I'll kill her." Appellee's App. p. 45. Father was charged with one or more of these offenses, but was never convicted, in part because Mother asked for the charges to be dismissed. When Mother had filed for divorce at some point before Father did, she had withdrawn the petition when Father had threatened to kill her in front of K.H.
[12] On August 11, 2021, the dissolution court issued its order, which provides as follows:
1. Father and Mother were divorced by Decree of dissolution of Marriage ("Decree") on December 16, 2019.
2. Father and Mother were parties to a CHINS matter under 53C07-1906-JC-000326 ("CHINS 0326") following a substantial inflicted injury to the parties’ minor child, [K.H.] that occurred during Father's parenting time.
3. That the minor child, [K.H.], was a protected person from Father under a permanent Order for Protection issued on June 20, 2019 following a contested hearing under 53C08-1906-PO-001358 ("PO 1358").
4. That the Decree issued on December 16, 2019 was issued following a contested hearing, and ordered that Mother shall have sole legal custody of the child as well as primary physical custody subject to Father's parenting time. Father was allowed up to six (6) hours of professionally supervised parenting time per week.
5. The Decree ordered that Father shall attend individual therapy and complete a domestic violence/batterer's group and follow all recommendations.
6. That CHINS 0326 was closed in significant part because Father's parenting time was supervised pursuant to the December 2019 Decree in this matter.
7. The record and testimony in this matter, in CHINS 0326, and in PO 1358 show a history of domestic violence by Father and a significant criminal history.
8. Father completed Batterers Treatment Program since the 2019 Decree.
9. Since the Decree was issued, the Honorable Mary Ellen Diekhoff found probable cause for the arrest of Father on the charge of Battery by Means of a Deadly Weapon, a Level 5 Felony, under 53C05-2101-F5-000065 following an incident on December 19, 2020 with an allegation of Father striking another person in the face with a knife. The case is currently pending in the Monroe Circuit Court. This charge was filed after Father completed Batterers Treatment Program.
10. Father has testified that Mother has taken steps to interfere with Father's relationship with [K.H.]. This assertion is not supported by the evidence.
11. Father's professionally supervised parenting time at Family Solutions has gone well in the recent past. [Ware] testified that she has no safety concerns with Father in a supervised visit setting with [K.H.].
12. Mother has cooperated with the GAL and Family Solutions throughout this matter to facilitate parenting time as ordered in the Decree, and to accommodate issues with Father's parenting time. Her efforts included the facilitation of supervised parenting time at the maternal grandmother's home when [K.H.]’s anxiety led to the termination of visits at Family Solutions; and agreeing to have FaceTime calls after Family Solutions temporarily terminated visits due to [K.H.]’s anxiety. Mother is not opposed to Father having FaceTime calls if they are on a regular schedule.
13. Father testified to a change in income due to losing his job at Cook, Inc.
14. Father lost his employment at Cook, Inc. after misrepresenting to his employer that he needed time off work to care for his son. Father testified that he could return there after six (6) months if he worked in a different building. Father was terminated in May or June of 2020, [and] he did not testify as to why he has not returned to Cook. Father blamed the loss of his job on his child's mother.
15. Father testified to being unemployed, but then later testified to having a catering business and a roadside barbecue business. Father is receiving unemployment benefits of $597.00 gross a week. Father also testified to seeking employment.
16. Father's employment records suggest he was making more than $692.80 per week prior to being terminated by Cook, Inc., which was what this Court found as his income when issuing the Decree in December 2019.
17. Mother works full-time with an hourly income of $18.20 per hour, while also working overtime upon request.
18. Mother pays $50 per week to Karen Drake for work related childcare.
19. Mother continues to provide health insurance for [K.H.].
20. Father testified that Mother "called DCS on him" to initiate CHINS 0326, but that Mother and the GAL testified that it was a physician who contacted DCS upon observing significant bruising on the child.
21. [GAL] Richardson is an experienced GAL and has been involved throughout this matter as well as the CHINS matter 0326. [GAL] Richardson worked at DCS from 1991–2006 and has been a GAL since 2012. [GAL] Richardson has been involved with this family since 2019 and testified that there was a substantiated injury to [K.H.] that occurred in Father's care. Father's explanation of a water slide injury was not consistent with the injury. [GAL] Richardson believes Father is fine with [K.H.] in a supervised setting. [K.H.] loves his Father and Father loves [K.H.]. She would like to figure out someone who could supervise so that Father could have more time with [K.H.] while still ensuring his safety.
22. The GAL has interviewed Father's therapist and the provider of the Batterer's Treatment Program, both of whom confirmed completion by Father. The GAL also reported that neither provider could confirm rehabilitation by Father, and could not say that [K.H.] is safer with him following the services. Further, her report filed on June 17, 2021 indicates that Father's Batterer's Treatment certification of completion provides "Program completion is not predictive of future nonviolence or non-abusive behaviors."
23. The GAL report acknowledged that the Family Solutions visits have been positive, but that her assessment of whether [K.H.] would be safe in Father's care has not changed.
24. The GAL's report and testimony both indicate a significant concern to [K.H.]’s safety if Father's parenting time is unsupervised.
25. Father has testified that the cost of professionally supervised parenting time limits the amount of parenting time he can afford. Father pays $65.00 per hour for supervised visits. The cost of this would be $1,560 per month. Father is currently exercising one (1) hour a week of his parenting time.
26. That the GAL has not been able to identify an acceptable non-professional supervisor at this time.
27. That Father's suggestion of the paternal grandmother as supervisor is not appropriate as the inflicted injury leading to the CHINS matter 0326 occurred while Father and child were staying at her home.
28. Maternal grandmother has supervised visits in the past but testified that she would be afraid to supervise the visits by herself as she is afraid of Father.
29. Father testified that his supervised visits were because of his ex-wife and believes the supervised visits are ridiculous. Father fails to recognize the role he played in that, and that his child received non-accidental injuries in his care.
30. [K.H.] is now three (3) years old and is articulate for his age, he is able to say things like "Daddy can I go to the bathroom." [K.H.] is not old enough to articulate safety concerns or make an adequate report if someone were to injure him.
For the aforementioned reasons, the Court hereby ORDERS as follows:
31. Custody. Mother shall continue to have sole legal custody of the child, [K.H.], and shall continue to have primary physical custody subject to Father's parenting time.
32. Parenting Time. Father shall continue to have up to six hours of professionally supervised parenting time with [K.H.] each week at his expense. The court acknowledges that the cost of this is prohibitive but is open to considering a less costly supervisor if Father can locate one that the GAL approves of. Additional parenting shall be by agreement of the parties with input from the GAL.
33. Communication between the Parties. The parties shall communicate through AppClose as previously ordered. All communications between the parties shall be through this tool, and Mother shall also use this tool to keep Father updated about medical appointments and developmental progress of the child.
34. Communication With Child. Father shall have two FaceTime calls per week on Monday and Wednesday evenings between the hours of 5:00 pm and 6:00 pm[ ], Father shall initiate the call, and Mother shall ensure the child is available to receive the call. If the Monday, Wednesday schedule does not work for the parties, they may agree to different days without court approval. Additional FaceTime calls shall occur on [K.H.]’s Birthday, Father's Day, Father's Birthday, Christmas, New Year's Day, Memorial Day, Labor Day, Thanksgiving, Easter, Fourth of July and Halloween. Father must schedule the Holiday calls with Mother at least a week in advance so that they may agree on a time.
35. Guardian ad Litem. The appointment of [GAL] Richardson as Guardian ad Litem shall continue to monitor the progress of Father's parenting time and to assist the parties in coordinating a parenting time schedule pursuant to this Order.
36. Child Support. Father's request to modify child support is denied, as there has not been a 20% change in obligation pursuant to the attached child support worksheet.
Appellant's App. Vol. II pp. 162–66. On or about January 21, 2021, the State dismissed the charge of battery with a deadly weapon against Father.
Discussion and Decision
[13] Father contends that the dissolution court abused its discretion in denying his request for unsupervised visitation with K.H. Where, as here, the dissolution court issued findings of fact sua sponte , those findings control as to the issues they cover, while a general judgment standard applies to issues not addressed. Rea v. Shoyer , 797 N.E.2d 1178, 1181 (Ind. Ct. App. 2003) ; C.B. v. B.W. , 985 N.E.2d 340, 344 (Ind. Ct. App. 2013), trans. denied. For issues covered by the findings, we determine whether the evidence supports the findings, and the findings support the judgment, under a clear-error standard. C.B. , 985 N.E.2d at 344. Findings are clearly erroneous only when they lack any evidence or reasonable inferences to support them. Id. Under a general judgment standard, we will affirm the judgment if sustainable upon any theory consistent with the evidence. Shields v. Town of Perryville , 136 N.E.3d 309, 311 (Ind. Ct. App. 2019).
[14] We will not reweigh the evidence, judge the credibility of the witnesses, or substitute our judgment for that of the dissolution court. Gertiser v. Stokes , 45 N.E.3d 363, 369 (Ind. 2015). We will not reverse the dissolution court's determination unless it is clearly against the logic and effect of the facts and circumstances before the court or the reasonable inferences drawn therefrom. Speaker v. Speaker , 759 N.E.2d 1174, 1179 (Ind. Ct. App. 2001). Rather, we "consider only the evidence most favorable to the judgment and any reasonable inferences from that evidence." Rea , 797 N.E.2d at 1181.
[15] In general, lower court determinations of domestic-relations matters receive particular deference from us
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). "[A]ppellate courts are in a poor position to look at a cold transcript of the record and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence." B.L. v. J.S. , 59 N.E.3d 253, 259 (Ind. App. 2016) (citations and internal quotations omitted), trans. denied.
[16] As for visitation rights in particular, "Indiana has long recognized that the rights of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents." Duncan v. Duncan , 843 N.E.2d 966, 969 (Ind. Ct. App. 2006) (citing Lasater v. Lasater , 809 N.E.2d 380, 400–01 (Ind. Ct. App. 2004) ), trans. denied. "As a result a noncustodial parent is generally entitled to reasonable visitation rights." Duncan , 843 N.E.2d at 969 (citing Ind. Code § 31-17-4-1). "A court may modify an order granting or denying visitation rights whenever this modification would serve the best interests of the child." Id. (citing Ind. Code § 31-17-4-2 ).
When reviewing the trial court's resolution of the visitation issue, we reverse only when the trial court manifestly abused its discretion. In re Marriage of Julien (1979), Ind. App., 397 N.E.2d 651. If the record reveals a rational basis supporting the trial court's determination, no abuse of discretion occurred. Carter v. Dec (1985), Ind. App., 480 N.E.2d 564. We will not reweigh evidence or reassess the credibility of witnesses. Id.
Pennington v. Pennington , 596 N.E.2d 305, 306 (Ind. Ct. App. 1992), trans. denied.
[17] Indiana Code section 31-17-4-2 provides that:
The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.
Despite the statute's use of the word "might," Indiana Courts have consistently interpreted the statute as requiring evidence that parenting time " ‘would’ (not ‘might’) endanger or impair the physical or mental health of the child." Perkinson v. Perkinson , 989 N.E.2d 758, 763 (Ind. 2013) (quoting Stewart v. Stewart , 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied ).
A. Explicit Finding of Harm to the Child's Physical Health or Significant Impairment of Emotional Development
[18] Father contends that the dissolution court was required to explicitly find that unsupervised parenting time would endanger K.H.’s health or impair his emotional development, which it did not do. Indiana Rule of Appellate Procedure 66(A), however, provides as follows:
No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.
In light of the overwhelming evidence that Father is prone to violent and abusive behavior and that he has failed to accept responsibility for his actions or reform himself, any probable impact the dissolution court's failure to recite the statutory language was so minor as to have had no effect on Father's rights. All the evidence in this case, taken together with the trial court's findings, leaves us with no doubt that a remand would lead to nothing more than the addition of a finding quoting the statute. Consequently, we decline Father's request to remand for that purpose.
Father cites to our decisions in Hatmaker v. Hatmaker , 998 N.E.2d 758 (Ind. Ct. App. 2014), and Walker v. Nelson , 911 N.E.2d 124 (Ind. Ct. App. 2009), as standing for the proposition that a trial court is required to make explicit findings in such cases as this. Both cases, however, are distinguishable, because, while both panels remanded for explicit findings regarding restriction of visitation rights, neither discussed Appellate Rule 66(A).
Father also suggests that the dissolution court may have relied upon Indiana Code section 31-17-2-8.3, which provides, in relevant part, that
(a) This section applies if a court finds that a noncustodial parent has been convicted of a crime involving domestic or family violence that was witnessed or heard by the noncustodial parent's child.
(b) There is created a rebuttable presumption that the court shall order that the noncustodial parent's parenting time with the child must be supervised: For at least one (1) year and not more than two (2) years immediately following the crime involving domestic or family violence[.]
We need not address this particular argument, as there is no indication that the dissolution court relied upon this statutory provision to justify its order that Father's visitation with K.H. be supervised.
B. Challenged Findings
[19] Father challenges several of the dissolution court's findings and/or conclusions thereon, namely, 7, 11, 15, 21, 22, 24, 27, 29, and 30 as not supported by the evidence and/or clearly erroneous. Father challenges Finding 7, that he has a history of domestic violence and criminal behavior, essentially on the basis that the allegations of domestic violence have not resulted in criminal convictions. Mother's testimony in this case (and in the CHINS proceeding) regarding Father's criminal record and appalling history of domestic abuse supports such a finding, and the dissolution court was entitled to credit it. Father's argument is an invitation to reweigh the evidence, which we will not do. See Gertiser , 45 N.E.3d at 369.
Father also challenges paragraph 32 of the dissolution court's order. Paragraph 32, however, is neither a finding nor a conclusion thereon—it is the part of the order concerning the parameters of Father's visitation moving forward.
[20] Finding 11, that supervised parenting has gone well, is supported by the testimony of Ware, the visitation supervisor. Finding 15, that Father testified to being unemployed and having a business, was supported by his own testimony. Father is apparently arguing that the dissolution court found that he was, seemingly inappropriately, earning money from his business while still collecting unemployment benefits, but the dissolution court did not find that he was earning any income from his new business. Father also challenges the portion of Finding 21 regarding GAL Richardson's testimony that K.H.’s June of 2019 injuries suffered while in Father's care were non-accidental. Father's only challenge to this finding is that GAL Richardson had not investigated the case prior to December of 2019. Even though it appears that this is true, Father does not explain why GAL Richardson could not have relied on previous investigations to support her testimony.
[21] Finding 22, that the provider of the batterer's treatment program could not confirm Father's rehabilitation, is supported by GAL Richardson's testimony. Father's argument that GAL Richardson's testimony regarding the batterer's treatment program was based on boilerplate disclaimer language is another invitation to reweigh the evidence, which we will not do. See Gertiser , 45 N.E.3d at 369. Father challenges Finding 24, that there was significant concern for K.H.’s safety if parenting time were unsupervised, as a "mere recitation of the GAL's testimony and reports." Appellant's Br. p. 38. Even if this is true, GAL Richardson's testimony and reports are, of course, sufficient to support the finding. Father challenges Finding 27, that his mother would not be a suitable visitation supervisor because K.H.’s June of 2019 injuries occurred at her home. Father's argument that there is no evidence that his mother either injured K.H. or knew that he was injured misses the point. The dissolution court was entitled to conclude that Father's mother would not be suitable as a visitation supervisor precisely because she had been unaware of the infliction of non-accidental injuries on K.H., even assuming that she was telling the truth about her lack of knowledge.
[22] Father's challenge to Finding 29, that he blamed the order for supervised visitation on Mother and fails to recognize his own responsibility for it, ignores evidence that he has, in fact, never admitted to harming K.H. while parenting him. Finally, Father challenges Finding 30, that the then-three-year-old K.H. was not old enough to articulate safety concerns, as lacking supporting evidence. Despite evidence that K.H. is articulate for his age, the dissolution court was entitled to find that, given Father's history of domestic violence and intimidation, there was a very good chance that K.H. could be intimidated into not reporting such behavior. We reject Father's challenges to the dissolution court's findings.
C. Whether the Dissolution Court Abused its Discretion in Ordering the Continuation of Supervised Visitation
[23] Having dispensed with Father's argument regarding the need for explicit findings and challenges to various of the dissolution court's findings, we are left with his history of criminal behavior and domestic violence and his refusal to acknowledge that he has abused K.H. in the past, despite compelling evidence that he has. Under the circumstances, we have little trouble concluding that the record of the current proceeding easily supports the dissolution court's continuation of professionally-supervised parenting time. Father's criminal history and his propensity for domestic abuse has already been discussed. Those familiar with the case also recommended the continuation of supervised visitation: GAL Richardson repeatedly stated that K.H.’s safety could only be assured by maintaining supervision, and K.H.’s maternal grandmother, who provided a location for the supervised visitation when K.H.’s anxiety about seeing Father made visitation at Family Solutions impractical, testified that giving Father unsupervised parenting time would be "a horrific mistake." Tr. Vol. II. p. 176.
[24] Father points to the services he has completed as support for the conclusion that he has taken responsibility for his prior actions. Father's therapy sessions, however, did not address his relationship with, or his behavior toward, K.H. Moreover, the educational program for batterers did not constitute therapy, and both the program's leader and the relevant documentation indicate that Father's participation does not establish that his violent tendencies and other problematic behaviors have changed. It is worth remembering that shortly after completing his attendance in the court-ordered educational program for batterers, Father was arrested for assault with a deadly weapon. The record also supports a conclusion that Father has yet to appreciate that his behavior has ever been problematic, with his testimony six months after completing the batterer's program showing that he still views supervised visitation, along with other consequences of his actions, as the result of a vendetta by Mother, abetted by DCS. Father also continues to claim that K.H.’s injury was insignificant and resulted from a water-park accident, despite medical evidence to the contrary. Under the circumstances, the dissolution court was well within its discretion to order the continuation of professionally-supervised visitation.
I. Support
[25] Indiana Code section 31-16-8-1(b) provides that child support may be modified only under the following circumstances:
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.
Our standard of review for child-support awards is well-settled:
A calculation of child support is presumed valid. We review a trial court's decision to award child support for an abuse of discretion. An abuse of discretion occurs if the trial court's decision is clearly against the logic and the effect of the facts and circumstances before the court or if the court has misinterpreted the law.
Thompson v. Thompson , 811 N.E.2d 888, 924 (Ind. Ct. App. 2004) (citations omitted), trans. denied.
[26] Father argues that the dissolution court's refusal to alter his child-support obligation was based on its allegedly improper findings regarding income from his catering business. The dissolution court, however, made no findings regarding any income beyond Father's unemployment benefits. Rather, it is readily apparent to us that the dissolution court actually imputed Father's pre-termination income to him, given that it found his pre-termination income to be $692.08 per week and his post-termination income to be $692.80 per week. Moreover, Mother argued, and the dissolution court found, that Father's misconduct had led to his termination from Cook, Inc., and that he had not returned to work there, despite having claimed that he could.
It seems that a simple transposition accounts for the seventy-two-cent difference between the two figures. The dissolution court's Finding 16 indicates that it mistakenly believed his found income at the time of dissolution to be $692.80 per week, instead of the $692.08 actually listed on the child support worksheet prepared at the time: "Father's employment records suggest he was making more than $692.80 per week prior to being terminated by Cook, Inc., which was what this Court found as his income when issuing the Decree in December 2019." Appellant's App. Vol. II p. 164.
[27] The Indiana Child Support Guidelines provide that if a parent is voluntarily underemployed, the dissolution court must calculate child support by determining the parent's potential income. Ind. Child Support Guideline 3(A)(3). Potential income is to be determined upon the basis of "employment potential and probable earnings level based on the obligor's employment and earnings history, occupational qualifications, educational attainment, literacy, age, health, criminal record or other employment barriers, prevailing job opportunities, and earnings levels in the community." Id. One of the purposes for including potential income is to "discourage a parent from taking a lower paying job to avoid the payment of significant support." Child Supp. G. 3, cmt. 2c. "The trial court enjoys wide discretion in imputing income to the child support obligor to ensure that he does not evade his support obligation." Glover v. Torrence , 723 N.E.2d 924, 936 (Ind. Ct. App. 2000). We see no reason why Father's lowered income resulting from termination due to misconduct should allow him to evade his child support obligations, especially when there is evidence that he could resume his pre-termination employment but has chosen not to. We therefore conclude that the dissolution court did not abuse its discretion in denying Father's request for a child-support modification.
Father also contends that "a substantial change of circumstances was evident" from the testimony and "documented evidence." Appellant's Br. p. 45. This contention, however, is dependent on his argument that the dissolution court improperly calculated his income for purposes of his child-support obligation, an argument that we have rejected.
[28] We affirm the judgment of the dissolution court.
affirmed
Crone, J., and Tavitas, J., concur.