Opinion
24A-DC-398
09-13-2024
Korrine Knight, Appellant-Defendant v. Alan Sessanna, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Amanda O. Blackketter Blackketter Law, LLC Shelbyville, Indiana ATTORNEY FOR APPELLEE Jonathan R. Deenik Deenik Lowe, LLC Greenwood, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Johnson Superior Court The Honorable Peter D. Nugent, Judge Trial Court Cause No. 41D02-1706-DC-407
ATTORNEY FOR APPELLANT
Amanda O. Blackketter Blackketter Law, LLC Shelbyville, Indiana
ATTORNEY FOR APPELLEE
Jonathan R. Deenik Deenik Lowe, LLC Greenwood, Indiana
MEMORANDUM DECISION
KENWORTHY, JUDGE
Case Summary
[¶1] Korrine Knight ("Mother") appeals the trial court's child custody modification order awarding Alan Sessanna ("Father") legal and physical custody of four of the parties' six minor children. Mother presents three issues for our review, which we consolidate and restate as:
1. Were the trial court's factual findings about Mother's relocations and reliance on other caregivers clearly erroneous?
2. Does the record support the trial court's findings that custody modification was in the children's best interests and there was a substantial change in circumstances to support custody modification?
[¶2] We affirm.
Facts and Procedural History
[¶3] Mother and Father are the parents of six children: Au. (born 2006), Av. (born 2008), Ka. (born 2009), Ar. (born 2010), and twins Af. and Ko. (born 2013) (collectively, "Children"). Parents divorced in 2016 in Ohio after a ten-year marriage. At first, Parents shared legal custody, Mother had sole physical custody of Children, and Father had parenting time. Since the dissolution, Parents have displayed a "high degree of conflict" and "have been at one another, despite the efforts of numerous lawyers, counselors, GALs [Guardian ad Litems], and other experts." Appellant's App. Vol. 2 at 46, 49. At one point, Au. described her family to a GAL as a "giant hate circle." Ex. Vol. 1 at 83.
[¶4] After the dissolution, Mother and Children temporarily moved to Zionsville, Indiana to live with Mother's parents ("Grandparents"). Mother remarried in 2016, and she and Children moved to Franklin, Indiana. After getting her nursing degree, Mother worked as a labor and delivery nurse in an Indianapolis hospital. Father moved several times after the divorce, but never to Indiana. By 2021, Father was living in Nashville, Tennessee, with his then-fiancee (later wife), Laura ("Stepmother"), and the couple's toddler son.
[¶5] On March 24, 2021, Parents entered into a mediated agreement addressing parenting time and other issues (the "Agreed Order"). The parties agreed Mother would have sole legal custody and primary physical custody. The Agreed Order set forth a schedule of Father's parenting time, which included fall break, six weeks during the summer, one week at winter break, and one weekend each month if Father provided Mother thirty days' advance written notice. At the time, Father had a child support arrearage of over $25,000, so the Agreed Order included a plan to get him caught up.
[¶6] By then, Father's relationship with the oldest two girls was strained. Under the Agreed Order, Au. and Av. did not need to participate in Father's parenting time. But the parties agreed Av. should engage in reunification counseling to help repair her relationship with Father. Beginning in March, Av. attended three counseling sessions with the agreed-upon counselor, and Father attended two. But the counselor ceased services in August because of a lack of family consensus about the therapeutic process or outcomes, observing "[f]or therapy to be successful, there will need to be less chaos in this family's dynamics." Id. at 33.
[¶7] In September, Father filed his first motion for rule to show cause alleging Mother (1) denied him telephone access to Children, and (2) unfairly denied his request for weekend parenting time to have Children fitted for clothing for his upcoming wedding. Father and Stepmother married in October.
[¶8] In December, when Father came to Mother's house to pick up Children for a visit, Parents got into a verbal argument that turned physical. According to Mother, Father strangled her, but Father claimed Mother "physically assaulted and attacked" him. Tr. Vol. 2 at 84. Father recorded the altercation and called the police. Mother refused to let Children leave with Father, for which Father filed a second motion to show cause. After a police investigation, the State charged Father with Level 6 felony domestic battery in the presence of a child, and the criminal court entered a no contact order with Mother. Thereafter, Parents conducted parenting time exchanges at the Franklin police station. A jury found Father not guilty on May 24, 2023.
[¶9] The trial court appointed Kimberly Mattingly GAL over Children in January 2022. The same month, Father sent Mother a message requesting specific dates for his parenting time for the calendar year. In 2022, Father filed three more motions to show cause alleging Mother failed to inform him of the twins' baptisms and twice denied him parenting time in violation of the Agreed Order.
[¶10] When Mother's second marriage ended in 2022, she and Children again moved in with Grandparents, who by then were living in Franklin. Mother married Michael Walters in October 2022 and she and Children moved into Walters' home, also in Franklin. Mother took a more lucrative job as a traveling nurse in Fort Wayne, where she worked overnight shifts two to three nights per week and would be gone for two days at a time. Children stayed with Walters or Grandparents.
[¶11] Also in late 2022, Father and Stepmother moved to Kentucky to be closer to Stepmother's family. Mother then moved for a contempt citation against Father for failing to inform her of his relocation. She also alleged Father failed to timely return Children from 2022 summer visitation or pick up Children for requested parenting time in September 2022.
[¶12] In March 2023, Au., then sixteen years old, told Mother that Walters sexually assaulted her. Mother did not report the assault to the authorities or Father right away, but Au. immediately moved to Grandparents' house. Mother continued to work her traveling nurse job for about a month and left the other five children in Walters' or Grandparents' care. Mother eventually moved back in with Grandparents, and she filed for divorce from Walters in October. Mother also started a new job providing nightshift nursing services at the Marion County Jail.
[¶13] In summer 2023, Father petitioned to modify custody, parenting time, and child support, on the basis Mother engaged in a pattern of alienation to limit his role in Children's lives. He then filed an emergency petition requesting an expedited hearing because Mother failed to inform him of the sexual abuse allegations, which he learned about when the Department of Child Services contacted him as part of its investigation.
[¶14] The trial court held a hearing on January 16, 2024, to address Father's five motions for rule to show cause, Mother's motion for contempt, and Father's petitions for custody modification. By then, Children were ages ten through seventeen. On February 8, the trial court granted Mother sole legal custody of Au. and Av. The trial court did not award Father parenting time with Au. or Av. but ordered Mother to enroll Av. in reunification counseling with Father.The trial court awarded Father sole legal custody of the younger four children, subject to Mother's parenting time under the Indiana Parenting Time Guidelines where distance is a factor.
Neither party raises arguments on appeal concerning Father's lack of parenting time with Au. and Av.
Standard of Review
[¶15] Absent a party's request, a trial court need not make special findings about the substantial change in the parties' circumstances when ordering a modification of child custody. In re Paternity of J.T., 988 N.E.2d 398, 400 (Ind.Ct.App. 2013). But when a trial court enters findings sua sponte, as the court did here, we review the issues covered by the findings under a two-tiered standard of review. Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). We first review whether the evidence supports the findings, and then whether the findings support the judgment. Id. "Any issue not covered by the findings is reviewed under the general judgment standard, meaning a reviewing court should affirm based on any legal theory supported by the evidence." Id. at 123-24.
[¶16] In addition, "there is a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters." Id. at 124 (quotation omitted). As an appellate court, we are in a poor position to look at a cold transcript and conclude 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. Id. As such, appellate courts shall not reweigh the evidence nor reassess witness credibility, and we view the evidence most favorably to the judgment. Id. To support reversal on appeal, it is not enough that the evidence might sustain some other conclusion; rather, the evidence must positively require the conclusion proffered by the appellant. Id.
1. The trial court's factual findings are not clearly erroneous.
[¶17] Mother first argues some of the trial court's findings were clearly erroneous. "'Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them.'" Id. at 125 (quoting In re Paternity of Winkler, 725 N.E.2d 124, 126 (Ind.Ct.App. 2000)).
[¶18] Mother challenges the following factual findings:
34. That the GAL points out that maternal grandparents are "salt of the earth" people for taking in Mother and helping raise the minor children. The Court couldn't agree more strongly. However, it is not the grandparent's job, barring unforeseen circumstances, to raise their grandchildren, particularly when the other parent is willing to do so.
* * *
47. That the Court has noted the lengthy discord between these parties and both are guilty of causing the turmoil here. Neither parent wear[s] a white hat in this case. However, this is about the best interest of the children. On the one hand, Mother has been the custodial parent since this Court has been dealing with this matter. Mother has relocated numerous times, which uprooted the children and required changes in their schedules, schools, friendships, and routines. Mother allowed [Walters] to supervise the minor children for days at a time while she was a travelling nurse, and allows her parents to raise the minor children in her stead while she works nights. The GAL pointed out that Mother appears to want other persons to raise her children, so long as it isn't Father.
Appellant's App. Vol. 2 at 47-48.
Mother also challenges "any finding that Mother failed to arrange Av.'s counseling" as clearly erroneous but does not point us to any such finding made by the trial court, and we identify none. Appellant's Br. at 25.
[¶19] Mother first contends there was insufficient evidence to support the trial court's finding that Mother's employment changes and relocations uprooted Children. Evidence shows Mother moved three times from 2022 to 2023: from her house with her second husband to Grandparents' home; from Grandparents' home to Walters' house; and from Walters' back to Grandparents'. Although all these homes were in Franklin, the move to Walters' house and then back to Grandparents' home required the twins to change elementary schools. Mother also changed nursing jobs from working nights at an Indianapolis hospital, to a traveling nurse job in Fort Wayne, to full-time nightshift employment at the Marion County Jail. While Mother was working as a traveling nurse, Children would move between Walters' or Grandparents' care. There was evidence to support the trial court's finding Mother relocated several times and Children's schedules and routines changed in this period.
[¶20] Mother also specifically objects to the trial court's characterization that she allows or wants others to raise Children in place of her or Father. Certainly, to provide financial support for their families, all parents who work outside the home must rely on relatives, friends, or professionals to provide care and supervision for their children during work hours. And at times parents have irregular work schedules or work nights and weekends. But evidence shows Mother chose to take a traveling nurse job requiring her to be out of town several nights per week on an irregular schedule, during which she left Children in Grandparents' or her new husband's care each week for days at a time. She did so even after her oldest daughter accused Walters of sexual assault. Evidence also shows Mother relied on Grandparents to provide a stable home from 2022 to 2023 as she moved between three jobs and two marriages. We read the trial court's characterization of this evidence-particularly with respect to Mother's preference for other caregivers over Father-at least in part as the court's assessment of Mother's credibility on the issue of her willingness to foster healthy relationships between Father and Children. In that regard, we do not reassess witness credibility on appeal. Steele-Giri, 51 N.E.3d at 124. There was evidence to support the trial court's findings, and so the findings were not clearly erroneous.
2. The record supports the trial court's custody modification order.
[¶21] Mother next argues the record does not support the trial court's findings that (1) custody modification was in the best interests of the youngest four children, and (2) there was a substantial change in one or more of the relevant factors to support custody modification.
[¶22] After a trial court enters an initial custody order in a dissolution action:
(a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 . . . of this chapter.
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.
Ind. Code § 31-17-2-21 (1999). The relevant factors to consider include:
(1) The age and sex of the child.
(2) The wishes of the child's parent or 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 parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
I.C. § 31-17-2-8 (2017). "In an initial custody determination, both parents are presumed equally entitled to custody." In re Paternity of V.D., 226 N.E.3d 816, 827 (Ind.Ct.App. 2024). But the party seeking to modify custody bears the burden of demonstrating the existing custody order should be altered. Steele-Giri, 51 N.E.3d at 124. This is a more stringent standard than an initial custody determination because permanence and stability are considered best for the welfare and happiness of children. Id. "A child custody determination is very fact-sensitive." Id. at 125.
[¶23] Here, the trial court found "a substantial and continuing change in the circumstances exists which warrants a change in custody" but did not specify which factor or factors had changed. Appellant's App. Vol. 2 at 49. Accordingly, we "should affirm based on any legal theory supported by the evidence." Steele-Giri, 51 N.E.3d at 123-24.
[¶24] Evidence showed Mother failed to facilitate Father's parenting time and regular phone calls between Father and Children. The GAL observed as early as May 2022 it was "clear that Father's claims of parental alienation have some merit." Ex. Vol. 1 at 72. By her October 2023 report, the GAL noted Mother "continued to refuse to answer Father's questions or provide information until [the GAL] expressed [her] own frustration to Mother's attorney." Id. at 76. At the hearing, the GAL testified Mother refused "to let [Father] see [Children], speak to them on the phone, encourage their relationship with their dad." Tr. Vol. 2 at 9. This was a primary reason the GAL recommended the trial court award Father custody of the four youngest children.
Mother argues certain "deficiencies" in the GAL's investigation so "significantly undermine[d] her recommendation to modify custody of the four younger children to Father" that we should reverse. Appellant's Br. at 31. But Mother's trial counsel thoroughly cross-examined the GAL on her report and elicited testimony from Mother and Grandmother to contradict the GAL's timeline of certain events. Mother's argument about the GAL's report is merely a request to reweigh evidence and reassess the GAL's credibility, which we cannot do. See Steele-Giri, 51 N.E.3d at 124.
[¶25] Father testified Mother failed to respond to his requests for information about Children's healthcare or inform him of important life events. Mother did not notify Father of the sexual abuse allegations against Walters. Grandmother, who was an important caregiver for Children when Mother was unavailable, testified she blocked Father from calling her. Five of the six children testified at the custody modification hearing; one child called Father by his first name, which the trial court noted, "alarmingly, seems to be acceptable to everyone on Mother's side of the family." Appellant's App. Vol. 2 at 47. Mother's reluctance to facilitate Father's parenting relationship-and her attempts to even undermine it-despite Father's continuing efforts to connect with his children represents a substantial change in the interaction and interrelationship of the four children with Father that would permit a custody modification. See, e.g., J.T., 988 N.E.2d at 401 (finding evidence that Mother routinely denied Father the parenting time to which he was entitled establishes a substantial change in the interrelationship of the parties which permits a modification of custody).
[¶26] As to the children's best interests, Mother testified she left the five youngest children in Walters' care after Au. accused him of sexual assault. As the GAL observed, Mother's "continued exposure of all of her female children to a potential sex criminal defies logic." Ex. Vol. 1 at 79. The trial court regarded Mother's conduct a "complete failure to protect her children." Appellant's App. Vol. 2 at 49. Evidence also shows Father's situation had become more stable, while Mother's was marked with relative chaos. Father and Stepmother married and moved closer to Indiana into a home with sufficient space for the four younger children. Father took a job working Monday through Friday from 8:00 a.m. to 4:30 p.m. Stepmother added Children to her health insurance plan in case the trial court modified custody. As GAL Mattingly described, "Dad's situation's changed a lot in the two years.... He has stable housing, he has a stable job, a stable marriage[. He] has been consistent in constantly wanting what's best for the kids[.]" Tr. Vol. 2 at 9. In sum, there was evidence to support the trial court's finding a custody modification was in the youngest four children's best interests.
Conclusion
[¶27] The trial court's factual findings were not clearly erroneous. The record supports the trial court's custody modification order.
[¶28] Affirmed.
Brown, J., and Felix, J., concur.