Opinion
24A-DC-753
12-30-2024
Erin L. True, Appellant-Respondent v. Kyle A. True, Appellee-Petitioner
ATTORNEY FOR APPELLANT Carl Paul Lamb Bloomington, Indiana ATTORNEY FOR APPELLEE Lisa A. Anderson Mallor Grodner LLP Bloomington, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Monroe Circuit Court The Honorable John M. Plummer III, Special Judge Trial Court Cause No. 53C08-2110-DC-429
ATTORNEY FOR APPELLANT Carl Paul Lamb Bloomington, Indiana
ATTORNEY FOR APPELLEE Lisa A. Anderson Mallor Grodner LLP Bloomington, Indiana
MEMORANDUM DECISION
VAIDIK, JUDGE.
Case Summary
[¶1] Erin L. True ("Mother") appeals the trial court's post-dissolution order modifying parenting time, finding her in contempt, and ordering her to pay attorney's fees. Finding no error, we affirm.
Facts and Procedural History
[¶2] The evidence most favorable to the judgment is as follows. Mother and Kyle A. True ("Father") married in 2016 and had two children: M.T., born in May 2017, and H.T., born in November 2018. The family lived in the Bloomington/Ellettsville area. The parties separated in October 2021. Father remained in the marital home, and Mother and the children moved in with Mother's parents in Crawfordsville. The marriage was dissolved by settlement agreement in May 2022. Under the agreement, the parties were granted joint legal custody, Mother was granted primary physical custody, and Father was granted parenting time pursuant to the Indiana Parenting Time Guidelines plus five additional weekends a year.
[¶3] The children went to preschool on the days that Mother worked, and at some point Father told Mother that he wished to pick the children up early from preschool on his parenting-time days, consistent with the Guidelines. See Ind. Parenting Time Guideline 1.C.4 ("When it becomes necessary that a child be cared for by a person other than a parent or a responsible household family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time, if providing the child care by the other parent is practical considering the time available and the distance between residences."). Mother refused and told Father that she would call the police if he picked up the children early. As a result, in September 2022, Father petitioned for increased parenting time.
[¶4] While Father's petition was pending, Mother filed notice that she intended to relocate to Fishers with the children in late November or early December and that she had already enrolled the children at Fishers First United Methodist Church Preschool. Mother did not consult with Father before choosing that preschool. In early November, Father objected to the relocation and petitioned for primary physical custody. Notwithstanding Father's objection, Mother moved the children to Fishers in late November. After the move, Mother enrolled the children at Primrose preschool instead of the church and chose a new pediatrician and a new dentist for the children. She did not consult with Father before making these changes. In February 2023, Father moved to have Mother found in contempt of the custody order because she had (1) failed to include him in educational and medical decisions, (2) refused to allow him to pick the children up early from preschool, (3) failed to give him an insurance card for the children, and (4) taken the children out of state without notifying him.
[¶5] The trial court appointed a guardian ad litem (GAL) to assess the situation and provide a report. The GAL interviewed the children and spoke with Mother, Father, and others involved in the children's lives. She also advised Mother that she needed to include Father in decisions affecting the children, not just tell him about decisions after the fact. Even after that conversation, Mother selected an optometrist for H.T. without consulting Father.
[¶6] The GAL submitted her report in January 2024. She said she would recommend joint physical custody if the parties lived closer together but, given the distance and the fact that the children were already settled in Fishers, recommended that Mother remain the primary custodian. However, she also recommended that Father's parenting time be increased and that additional time in the summer should be considered.
[¶7] In February, the trial court held a hearing on all pending matters. The GAL testified, consistently with her report, that Father having additional parenting time, including in the summer, would be "beneficial." Tr. pp. 16-17, 31-32. Father asked that Mother be ordered to pay part of his attorney's fees as a sanction for her contempt. Father presented an itemized list of fees totaling $5,657.50 from August 2022 through the date of the hearing. See Ex. C.
During the hearing, Mother's attorney asked Father if he thought certain circumstances were fair "[i]n God's eyes." Tr. p. 74. Father's attorney objected on relevancy grounds. The trial court sustained the objection and added, "[T]hose outside conversations that you are having and commenting about God in this courtroom, really is irrelevant because it's the Judge's decision in the case. You should be arguing the case with the Judge, not talking about God, we're not in church." Id. Mother argues that these comments demonstrated the court's unwillingness to consider her religious beliefs and "the importance of religion in the lives of the children[.]" Appellant's Br. pp. 31-32. We disagree. The court didn't prohibit any mention of religion. It merely explained, correctly, that what God might think of the case is legally irrelevant.
[¶8] At the parties' request, the court entered findings of fact and conclusions of law. Following the GAL's recommendation, the court denied Father's petition to modify custody but granted his petition to modify parenting time. Regarding parenting time, the court concluded:
17. Father also requests a modification in parenting time, to be able to pick them up at the end of their school days, and for additional time in the summer.
18. In determining whether to modify parenting time, the Court must give "foremost consideration to the best interests of the child." Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).
19. The Court finds that it is in the best interest of the children to increase Father's parenting time with the children.
20. Father currently has parenting time pursuant to the Indiana Parenting Time Guidelines, with the addition of five additional weekends throughout the year.
21. Given the distance involved and the fact that the children are in school, the most logical way to increase Father's parenting time would be to increase his time during the summer.
22. Also, Mother gave no reasonable response as to why Father should not be able to pick up the children at the end of their school instruction. Mother decided that it was more important for the children to nap at school rather than spend an additional few hours per week with Father. That was not in the best interests of these children, who by all accounts love their dad and want more time with him.
23. Mother not only refused to allow Father the extra hours with the children, when she was not available, but threatened to call the police. Mother's actions in that regard were selfish and deplorable.
24. Mother has shown an unwillingness to alter from the prior parenting time Orders, even if doing so would have benefitted the children.
25. The only way to ensure that Father receives more parenting time with the children, which is in their best interest, is for the Court to specifically order additional time.Appellant's App. Vol. II pp. 38-39. The court ordered, among other things, that during the children's summer break Father would have primary custody and Mother would have parenting time and a nine-day vacation period.
[¶9] The court also found Mother in contempt of the original custody order as follows:
34. [T]he Court finds that Mother has repeatedly violated the Court's orders regarding joint legal custody. Mother selected the children's school with no discussion with Father. Mother selected the children's pediatrician and dentist with no discussion with Father. Even after the GAL explained to Mother that she had to do better at discussing things with Father, Mother selected an optometrist with no discussion with Father. Mother does not keep Father informed of appointments that she makes for the children.
36. Mother refused to allow Father the opportunity to pick up the children early from preschool to care for them, yet she admitted that she was not personally available to care for them and they were instead napping at preschool.
38. Mother did not deny that she took the children out of state without notifying Father.Id. at 40-41. The court concluded, "As sanction for her contempt, Mother shall pay Father's attorney fees in the amount of $5,657.50." Id. at 45.
[¶10] Mother now appeals.
Discussion and Decision
[¶11] Mother contends the trial court erred by increasing Father's parenting time and by finding her in contempt and ordering her to pay all the attorney's fees requested by Father. Trial courts have discretion in making such determinations, so we review only for an abuse of discretion. See Hurst v. Smith, 192 N.E.3d 233, 245 (Ind.Ct.App. 2022) (parenting time); Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202-04 (Ind. 2012) (contempt and sanction).
Our Supreme Court has made clear that deference to trial courts is particularly important in family-law matters:
There is a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters. Appellate 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. On appeal it 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. Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (cleaned up).
I. The trial court didn't abuse its discretion by increasing Father's parenting time
[¶12] Mother first argues that the trial court improperly increased Father's parenting time to punish Mother for her actions, not because it believed such an increase was in the children's best interests. See Ind. Code § 31-17-4-2 ("The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child."). She notes that the court's order is "replete with statements about Mother's alleged contemptuous conduct." Appellant's Br. p. 27. But that is largely because Father's contempt claim against Mother was another major issue the court had to decide. In the section of its order addressing parenting time, the court acknowledged that it "must give 'foremost consideration to the best interests of the child,'" Appellant's App. Vol. II p. 38 (quoting Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013)), and it expressly concluded that Father having additional parenting time is in the children's best interests, id. That conclusion was amply supported by the GAL's report and testimony.
[¶13] To be sure, there was some overlap between Father's parenting-time claim and his contempt claim-he originally sought to modify parenting time because Mother wrongfully denied him additional time during her work hours. However, the trial court's ultimate parenting-time decision properly focused on the children's best interests. Mother has not shown an abuse of discretion.
II. The trial court didn't abuse its discretion by finding Mother in contempt or by ordering her to pay all the fees requested by Father
[¶14] Mother also argues that the trial court abused its discretion by finding her in contempt and ordering her to pay all the attorney's fees Father requested. Regarding the contempt finding, Mother doesn't dispute that she failed to consult with Father about the children's preschool and healthcare providers, notify Father of out-of-state travel, and allow Father additional parenting time during her work hours. Instead, she argues that these failures were not the result of "willful disobedience" but rather miscommunication and confusion about the requirements of the original custody order. Appellant's Br. pp. 34-37. This is a request for us to reweigh the evidence and judge the credibility of witnesses, which we won't do. See Steele-Giri, 51 N.E.3d at 124. Furthermore, Mother's claim that her violations weren't willful is belied by the fact that she failed to consult with Father about H.T.'s optometrist even after the GAL advised her that she needed to include Father in such decisions. The trial court didn't abuse its discretion by finding Mother in contempt.
[¶15] In the alternative, Mother argues that the award of attorney's fees is excessive. She notes that an award of damages for contempt is limited to the actual damages that resulted from the contemptuous conduct, see Evans v. Evans, 766 N.E.2d 1240, 1245 (Ind.Ct.App. 2002), and asserts that "[a] good portion of Father's fees were for issues totally unrelated to alleged contemptuous action/inaction by Mother," Appellant's Br. pp. 38-39. We disagree. Father testified that the fees he requested were not all the fees he incurred and that they were "pretty specific in regard to [his] Petition to Modify Parenting Time to get the extra parenting time when the kids were at childcare as well as the rule to show cause[.]" Tr. pp. 66-67. Because Mother's refusal to allow Father additional parenting time during her work hours was part of the contempt petition, Father's testimony, which Mother didn't challenge on crossexamination, supports the conclusion that the fees awarded were related to Mother's contempt. We therefore affirm the award of attorney's fees.
[¶16] Affirmed.
Altice, C.J., and Crone, Sr. J., concur.