GAICH v. FULTON (2024)

MEMORANDUM DECISION

[1] Erin Gaich (“Mother”) appeals the trial court's order modifying legal custody of J.F. and parenting time with M.F., who are her children with Steve Fulton (“Father”). She presents two arguments, which we restate as:

1. Whether the trial court abused its discretion when it granted Father's request to have sole legal custody of J.F.; and

2. Whether the trial court abused its discretion when it reinstated Father's unsupervised parenting time with M.F.

We affirm.

Facts and Procedural History

[2] Mother and Father were married on August 23, 2006. They are the parents of M.F., born October 18, 2006, and J.F., born May 27, 2009. On February 25, 2020, Father filed for divorce. On July 27, 2020, the trial court issued its order of dissolution in which, as is relevant here, Mother and Father shared physical and legal custody of M.F. and J.F. (collectively, “Children”).

[3] Since then, Mother and Father have each filed multiple motions for modification of custody and for contempt. In February 2022, M.F. “began to exhibit a desire to not visit with [Father].” (Appellant's App. Vol. II at 37) (trial court order of May 27, 2022). Father subsequently filed a motion for contempt against Mother for denying him parenting time. On May 22, 2022, the trial court held a hearing and found that “Mother was unable to articulate to any persuasive degree a justifiable reason for [M.F.’s] wishes” and “did not introduce medical or professional testimony to support a safety or best interest reason why [Father's] parenting time should not occur as previously ordered.” (Id.) The trial court ordered the joint physical and legal custody of M.F. to remain in place and Mother was found in contempt for “her failure to follow the Court's order by failing to take all reasonable steps to effectuate parenting time.” (Id. at 38.)

[4] On February 21, 2023, Mother filed a petition for an emergency expedited hearing. Therein she alleged “Father physically assaulted [M.F.]” and M.F.’s school “called the police and Department of Child Services to report as such.” (Id. at 44.) On February 27, 2023, Father filed a petition for contempt citation that alleged Mother denied Father's parenting time with M.F., including parenting time during Thanksgiving and Christmas, and did not timely and accurately inform Father about the Children's appointments. On the same day, Father filed a petition to modify custody of and child support for Children.

[5] On March 8, 2023, the trial court held a hearing on Mother's petition for emergency expedited hearing. It issued an order on March 9, 2023, that suspended parenting time between Father and M.F. “until further evidence or further order[.]” (Id. at 53.) The trial court also ordered family counseling to commence immediately. On November 17, 2023, the trial court held a hearing on all pending matters, including the two before us – legal custody of J.F. and modification of parenting time with M.F.

[6] Regarding Father's request for sole legal custody of J.F., Father recounted a pattern of behavior in which Mother would not tell him of doctor's appointments or would tell him just before appointments, which precluded Father from attending. Father also testified Mother would not tell Father when she removed J.F. from school for appointments. He also indicated Mother unilaterally made school-related decisions for Children.

[7] At that hearing, the parties entered an agreement regarding Father's parenting time with M.F. The trial court approved that agreement and ordered Father to have supervised parenting time visits “twice weekly, for one-hour” beginning the week of December 4, 2023. (Id. at 21.) The trial ordered Mother to supervise the visits but “keep a respectful distance and allow Father and [M.F.] the privacy to interact one on one.” (Id.) The trial court took the other matters before it under advisement.

[8] On February 2, 2024, the trial court issued an order on Father's petition to modify custody and child support and Father's petition for contempt citation. Therein, the trial court found Mother and Father's relationship was “strained, making coordination, communication and decision-making difficult.” (Id. at 26.) Based thereon, the trial court did “not find a reasonable probability that the parties will be able to communicate effectively and make joint decisions in [Children's] best interests going forward.” (Id.)

[9] Regarding modification of Children's custody, the trial court indicated it had “considered the statutory custody factors in I.C. 31-17-2-8, including [Children's] age as teenagers, the wishes of [Children] and the parents, [Children's] sibling relationship, and [Children's] adjustment to each parent's household.” (Id.) Based thereon, the trial court awarded full physical and legal custody of M.F. to Mother. It found “[t]he relationship between [M.F.] and Father has been very strained since [M.F.] accused Father of physically abusing her. Father has denied this accusation.” (Id. at 25.) The court further noted “Father and [M.F.’s] relationship has been seriously damaged and will take time to repair.” (Id. at 26.) Regarding Father's parenting time with M.F., the trial court ordered Father to have unsupervised parenting time pursuant to the Indiana Parenting Time Guidelines effective Friday, February 9, 2024. The parenting time would “not initially include overnights.” (Id.) After March 1, 2024, Father was to exercise “unsupervised parenting time ․ according to the Indiana Parenting Time Guidelines ․ giv[ing] due consideration to [M.F.’s] input regarding reasonable modifications to scheduled parenting time.” (Id. at 26-7.) Overall, Father's “parenting time shall be in the amount granted by the Indiana Parenting Time Guidelines, including overnights.” (Id. at 27.)

[10] The trial court granted sole legal custody of J.F. to Father and ordered Mother and Father to “continue to share parenting time with [J.F.] equally.” (Id.) The trial court encouraged Mother and Father to “schedule [Children's] time so that they are in the same household as much as possible to foster their sibling relationship.” (Id.) The trial court further required Mother and Father to “continue to use Our Family Wizard for parenting communications, and for coordinating [Children's] schedules” and to “negotiate mutually agreeable changes from the parenting time schedule in this order.” (Id. at 29.)

Discussion and Decision

[11] Mother argues the trial court abused its discretion when it granted Father sole legal custody of J.F. and when it instituted a phase-in of parenting time between Father and M.F. to ultimately restore parenting time in accordance with the Indiana Parenting Time Guidelines.

[T]here is a well-established preference in Indiana “for granting latitude and deference to our trial judges in family law matters.” In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993). 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.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). “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.” Id. “Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted).

Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).

[12] When, as here, the trial court makes findings and conclusions sua sponte, we apply a two-tiered analysis whereby we first analyze whether the evidence supports the findings and then whether the findings support the trial court's conclusions regarding the issues covered in the findings. McDaniel v. McDaniel, 150 N.E.3d 282, 289 (Ind. Ct. App. 2020), trans. denied. We review issues not addressed by the trial court with a general judgment standard, under which “the judgment will be affirmed if it can be sustained on any legal theory consistent with the evidence.” Id. “It is not necessary that each and every finding be correct, and even if one or more findings are clearly erroneous, we may affirm the judgment if it is supported by other findings or is otherwise supported by the record.” Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013), aff'd on reh'g by Stone v. Stone, 4 N.E.3d 666 (Ind. Ct. App. 2013). The trial court's order is clearly erroneous “when the appellate court's review of the evidence most favorable to the trial court's judgment leaves us firmly convinced that a mistake has been made.” McDaniel, 150 N.E.3d at 289.

1. Modification of Legal Custody of J.F.

[13] Mother first argues the trial court abused its discretion when it modified legal custody of J.F. When considering a modification of legal custody of a child from joint legal custody to sole legal custody, we must determine if there has been a substantial change in circumstances under Indiana Code section 31-17-2-15, which requires the trial court to consider:

(1) the fitness and suitability of each of the persons awarded joint custody;

(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare;

(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) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;

(5) whether the persons awarded joint custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so; and

(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

In addition, the trial court should consider any substantial changes to the factors for modification of child custody found in Indiana Code section 31-17-2-8.¹ With regard to the Section 15 factors for modification of joint legal custody:

Our courts have reiterated that factor (2), whether the parents are willing and able to cooperate in advancing the child's welfare, is of particular importance in making legal custody determinations. Julie C. [v. Andrew C.], 924 N.E.2d [1249,] 1260 [(Ind. Ct. App. 2010)]; see also Carmichael [v. Siegel], 754 N.E.2d [619,] 635 [(Ind. Ct. App. 2001)] (“One of the key factors to consider when determining whether joint legal custody is appropriate is whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare.”). Where “the parties have made child-rearing a battleground, then joint custody is not appropriate.” Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind. Ct. App. 1995). “Indeed, to award joint legal custody to individually capable parents who cannot work together is tantamount to the proverbial folly of cutting the baby in half in order to effect a fair distribution of the child to competing parents.” Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct. App. 2008) (quotation omitted).

Milcherska v. Hoerstman, 56 N.E.3d 634, 641-2 (Ind. Ct. App. 2016).

[14] Neither party requested findings pursuant to Indiana Trial Rule 52, as noted above, and thus any findings by the trial court were entered sua sponte. In such a case, we review those issues not addressed by the trial court under a general judgment standard, McDaniel, 150 N.E.3d at 289, and we may affirm the judgment if it is supported by the record. Stone, 991 N.E.20 at 998.

[15] At the time of their dissolution of marriage, Mother and Father shared joint legal custody of Children. In its order on February 2, 2024, the trial court awarded sole legal custody of J.F. to Father and found, in relevant part, “[t]he relationship between the parents has also been strained, making coordination and decision-making difficult. The Court does not find a reasonable probability that the parties will be able to communicate effectively and make joint decisions in [Children's] best interests going forward.” (Appellant's App. Vol. II at 26.) Mother argues the trial court abused its discretion when it awarded Father sole legal custody of J.F. because there was insufficient evidence of a substantial change in circumstances as required to modify custody.

[16] During the trial court's November 17, 2023, hearing regarding various child-related issues, Father presented evidence that Mother denied him nine days of parenting time from February to May 2022. In addition, Father testified Mother had “a history of preventing me from going to any of [J.F.’s] medical appointments[,]” (Tr. Vol. II at 27), including not telling Father of a doctor's appointment or telling Father of a scheduled doctor's appointment the day of the appointment. Mother refused to provide Father with J.F.’s medication. Mother also scheduled appointments with out-of-network providers, which caused Father to incur $10,000.00 in medical bills, as he was the responsible party for such costs. (Id. at 27.) Finally, when Father called to inquire regarding the outcome of one of J.F.’s medical appointments, he was unable to obtain information. Father testified Mother had “taken to, um, remove me from the daily lives of [Children] because she doesn't allow me to play a role when it comes to important things like their medical care.” (Id. at 30.)

[17] In addition, Father presented evidence that Mother told Father she had enrolled Children in Hamilton Southeastern schools but she actually had not enrolled them there. She instead made a unilateral decision to enroll Children in a private school, and Father was required to pay half of the tuition without input into the decision. Finally, Father testified he believed Mother had alienated him from Children by “preventing [him] from spending time with [Children] ․ [and] making [him] look poorly in front of [his] Children.” (Id. at 12.)

[18] We conclude there was a substantial change in circumstances based on the parties’ continued inability to communicate. See Ind. Code § 31-17-2-15(2). Mother was making unilateral healthcare and schooling decisions and denying Father the opportunity to be at J.F.’s medical appointments by giving Father very little notice of the appointments. Regarding the relationship between Father and J.F., which is a factor to consider pursuant to Indiana Code section 31-17-2-8(4)(A), Father testified Mother was not allowing him to spend time with J.F. and she made him look bad in front of his Children. As such, the trial court's decision was supported by the evidence Father presented, and Mother's argument is an invitation for us to reweigh the evidence, which we cannot do. See Steele-Giri, 51 N.E.3d at 124 (appellate court cannot reweigh evidence or judge credibility of witnesses). Accordingly, we hold the trial court did not abuse its discretion when it modified joint legal custody of J.F. to sole legal custody to be exercised by Father. See Hecht v. Hecht, 142 N.E.3d 1022, 1025-6 (Ind. Ct. App. 2020) (parents’ inability to communicate regarding medical decision warranted a modification of joint legal custody to sole legal custody).

2. Modification of Parenting Time of M.F.

[19] On March 9, 2023, the trial court issued an emergency order suspending parenting time between Father and M.F. based on M.F.’s allegation that Father physically abused her. On November 17, 2023, the trial court entered an order based on an agreement of the parties to allow Father supervised visitation with M.F. In its February 2, 2024, order, the trial court ordered a phase-in schedule for parenting time between Father and M.F. that ultimately would result in Father exercising parenting time with M.F. pursuant to the Indiana Parenting Time Guidelines.

[20] Mother argues the trial court abused its discretion when it allowed Father to exercise a phase-in parenting time schedule of Father's parenting time ² with M.F. Pursuant to Indiana Code section 31-17-4-2, in a dissolution matter, the trial court may modify an order regarding parenting time “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.” A party who seeks to restrict a parent's visitation bears the burden of presenting evidence to support that request. D.B. v. M.B.V., 913 N.E.2d 1271, 1275 (Ind. Ct. App. 2009), reh'g denied. Parenting time decisions are reviewed for an abuse of discretion. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).

[21] At the November 17, 2023, hearing, Father acknowledged the difficult relationship he had with M.F., specifically that M.F. did not want to talk to him and that Father's “presence [on a Zoom call] upset [her.]” (Tr. Vol. II at 25.) Father testified that, based on M.F.’s reluctance to communicate and spend time with him, he “just tried to give her has much space as possible, uh, to work through her challenges.” (Id.) Father testified he believed “with the – the proper steps ․ that [Father and M.F.] cold [sic] rectify [sic] and get ․ back to a healthy relationship.” (Id. at 11.)

[22] Father and M.F. had engaged in therapy with Dr. Phillip Scott Parker. Dr. Parker testified he had one or two therapy sessions with Father and had been seeing M.F. since May 2022. Dr. Parker indicated those sessions had not been joint because M.F. “had some discomfort about having joint sessions.” (Id. at 105.) Instead, Dr. Parker would see Father for half of the appointment and M.F. for the other half.

[23] Regarding his sessions with M.F., Dr. Parker testified he had “been kind of been [sic] working on helping [M.F.], um, and [Father], uh, have a more benign working relationship, because that's his ultimate goal.” (Id.) He told the court that “she obviously had some anxiety with regards to her relationship with [Father] that we've been working on.” (Id. at 106.) Regarding his sessions with Father, Dr. Parker testified he had been helping Father “to resolve [disputes with M.F.] in a benign way.” (Id.) Dr. Parker stated Father “cares about” M.F. and there is a possibility that the therapy could “restore their relationship and help them be close to each other. And have an enjoyable parent-child relationship.” (Id. at 107.) Regarding whether in-person visits between M.F. and Father would be detrimental to M.F., Dr. Parker stated, “[Father] is committed to expressing to her how much he loves her and he wants to improve his relationship with her and not be estranged ․ And I don't think that he's going to be (indiscernible), inappropriate, or harsh, or psychologically detrimental. I don't see that in him.” (Id. at 111.)

[24] At the end of the hearing on November 17, 2023, the trial court summarized its initial assessment of the parenting time issue. The trial court stated it believed some sort of parenting time arrangement should be ordered because “the longer that [suspension of Father's parenting time] goes on without there being any meaningful contact between [Father] and [M.F.], it's going to become harder and harder to build that relationship.” (Id. at 187.) The trial court noted Mother's earlier testimony that she did not “have an objection to supervised parenting time beginning, um, soon.” (Id.) After a discussion with the trial court, the parties agreed Father would have supervised parenting time with M.F. twice a week for an hour to begin December 4, 2023. Mother would supervise Father's parenting time at a distance so “M.F. knows that she has someone she could turn to if she's concern [sic], needs an out, she has that there.” (Id. at 191.)

[25] On February 2, 2024, the trial court issued its final order on the November 17, 2023, hearing. The trial court found, regarding M.F.’s physical abuse allegation, that “Father has denied this accusation” and

[a] record has not been developed sufficiently for the court to make an independent determination whether the allegation of abuse is true or not. If true, the abuse allegations on their own, while very serious, are not so extreme as to justify a legal termination of the parent/child relationship. However, it is clear that Father and M.F.’s relationship has been seriously damaged and will take time to repair.

(Appellant's App. Vol. II at 25-6.) The trial court noted that Father and M.F. had been engaging in supervised parenting time as ordered by the trial court and “[t]here has been no indication to the Court of any problems with such parenting time.” (Id. at 26.) Based thereon, the trial court reinstated Father's unsupervised parenting time, in a phase-in fashion:

8. Beginning Friday, February 9, 2024, [M.F.] will begin unsupervised parenting time with Father according to the Indiana Parenting Time Guidelines, except that scheduled weekend parenting time shall not initially include overnights. When a February overnight is scheduled for Father under the Guidelines, [M.F.] is to be returned to Mother's care by 10:00 p.m., and be back with Father by 10:00 a.m.

9. Beginning March 1, 2024, Father will exercise parenting time according to the Indiana Parenting Time Guidelines. Given her age, the parties shall give due consideration to [M.F.’s] input regarding reasonable modifications to scheduled parenting time. However, the total amount of Father's parenting time shall be in the amount granted by the Indiana Parenting Time Guidelines, including overnights. Midweek visits for [M.F.] shall take place on Wednesdays from after school until 7:00 p.m., or as otherwise agreed by the parties.

(Id. at 26-7.) The trial court also ordered M.F. and Father to continue with family therapy.

[26] Mother argues the evidence does not support the trial court's parenting time order. She asserts it is not in M.F.’s best interest because M.F.’s “mental health was significantly at risk while attending a Zoom meeting with Father [and] [r]equiring [M.F] to attend in-person parenting time visits further endangers [M.F.’s] mental health[.]” (Mother's App. at 10-11.) Father testified he wanted to have a relationship with M.F. and was willing to work with her to repair their relationship. Dr. Parker testified he had met with M.F. and Father on multiple occasions and did not have concerns about Father causing harm to M.F. Accordingly, Mother's argument is an invitation for us to reweigh the evidence, which we cannot do. See Steele-Giri, 51 N.E.3d at 124 (appellate court cannot reweigh evidence or judge credibility of witnesses). The evidence in the record demonstrates the trial court did not abuse its discretion when it ordered Father to engage in a phase-in schedule for parenting time with M.F., which ultimately would result in Father having unsupervised parenting time with M.F. pursuant to the Indiana Parenting Time Guidelines. See, e.g., D.B., 913 N.E.2d at 1275 (trial court abused its discretion when it restricted father's parenting time with child who alleged physical abuse, stating “our parenting time statute does not provide for the elimination of parenting time because reunification counseling has proved unusually challenging or because teenagers do not wish to interact with a parent”).

Conclusion

[27] The evidence before the trial court supported its decision to award sole legal custody of J.F. to Father because Mother had engaged in a pattern of behavior that included not telling Father of Children's medical appointments and removing J.F. from school without notifying Father. Additionally, the trial court did not abuse its discretion when it ordered Father and M.F. to phase-in parenting time pursuant to the Indiana Parenting Time Guidelines. Accordingly, we affirm.

[28] Affirmed.

FOOTNOTES

1.   Those factors are:(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.(8) Evidence that the child has been cared for by a de facto custodian[.]Ind. Code § 31-17-2-8.

2.   The trial court's February 2, 2024, order also modified custody of M.F. from joint legal custody to sole legal custody of Mother, but the parties do not challenge that determination.

May, Judge.

Brown, J., and Pyle, J., concur.