Todd Houghton, Appellant-Petitioner v. Andrea L. Houghton, Appellee-Respondent (2024)

MEMORANDUM DECISION

Case Summary

[1] Todd Houghton (Father) appeals the parenting time determination within a partial decree of dissolution. Finding no abuse of discretion, we affirm.

Facts and Procedural History

[2] Father married Andrea Houghton (Mother) in May 2001. A daughter, Susan, and a son, C.H., were born to the marriage. In 2017, the parties separated, and Mother filed a dissolution petition, which was soon dismissed. Father filed a petition to dissolve the marriage in April 2020, at which time Susan was sixteen years old, and C.H. was eight years old. Susan was homeschooled until eighth grade, when she transitioned to public school. C.H. was homeschooled by both parents, who utilized different approaches. In addition to having differing views regarding education, the parties disagreed about communication, scheduling, religion, discipline, exposure to unrelated persons, and other issues.

[3] In January 2022, the parties filed an agreed order appointing Mary Raatz as guardian ad litem (GAL). At that time, per the parties’ parenting time schedule, C.H. stayed with Father on Mondays, Tuesdays, and most of Wednesdays, and with Mother on Wednesday nights, Thursdays, and Fridays, with alternating weekends. Appellant's App. Vol. 2 at 20. In a March 2022 report, the GAL recommended that the parenting time schedule continue, that C.H. participate in standardized academic testing, that he receive remediation if necessary, and that homeschooling be continued if he performs at grade level. Id. at 24-25.

[4] In a September 2022 petition requesting modification of custody and parenting time, Father alleged that Mother was using illegal substances and was involved with “individuals which [Father believed] pose an emotional and physical danger” to C.H. Id. at 26. Via an October 2022 order, the parties agreed to maintain their parenting time schedule if Mother submitted to drug screens and her substance levels decreased, that C.H. would begin attending a public school, and that Mother would ensure that C.H. would not be exposed to her significant other(s). Id. at 29. Upon request, the GAL filed a November 2022 report regarding C.H.’s future schooling. Her recommendations included that C.H. attend an elementary school near Father's home and that Father ensure that Mother have “full and complete access to” school-related matters. Id. at 33.

[5] In June 2023, Father filed another petition to modify custody and parenting time. He alleged that Mother “participated in activities” and was again involved with individuals that Father believed posed “an emotional and physical danger to the parties’ minor children” and that C.H. was being exposed to “a certain ‘lifestyle’ which is not in [C.H.’s] best interests.” Id. at 37. Father also alleged inconsistent drop offs, transportation issues, exposure of C.H. to arguments in Mother's home, parenting time problems, untimely communications, and Mother's lack of involvement in C.H.’s school and activities. In July 2023, the trial court ordered the GAL to prepare an updated report. Later that month, Mother filed a protective order petition against Father under cause number 22D02-2307-PO-640.

[6] In August 2023, Father filed another petition to modify custody and parenting time plus a request for an expedited GAL report. Father claimed ongoing issues with drop-offs, suicidal comments by C.H. related to being with Mother, poor coordination and follow-up regarding C.H.’s comments, and disputes about the protective order allegations. The trial court met with both Mother's counsel and Father's counsel, who then met with the parties. All agreed that the GAL would submit an expedited and updated report and that Dr. Gerald Wingard would perform a psychological evaluation concerning C.H.’s suicide potential. Later that month, Mother requested and was granted dismissal of her protective order petition.

[7] In September 2023, Dr. Wingard issued his report, which noted that C.H. has a “significant history of behavioral conflicts with [Mother] including tantrums, calling her degrading names, threats to hurt her, and saying to [Mother] that he wanted her to die, and he would die if he has to spend more time with her.” Id. at 53. Dr. Wingard opined as follows:

While I did not find evidence of suicide or self-harm behavior, [C.H.’s] family situation is potentially volatile and under the present circumstances, a blowup is likely to occur again. The divorce and child custody/visitation plan needs to be completed as soon as possible.

[C.H.] clearly and definitely needs to be in a therapy process with a therapist who is able to deal with parents who are in a high conflict divorce.

Id.

[8] The GAL's September report included recommendations that Father be granted primary physical and sole legal custody of C.H. and that Mother's parenting time be limited to daytime visits of no more than ten hours on alternate weekends and a three-hour mid-week visit, plus two electronic contacts per week. Id at 59. In addition, the GAL recommended that Mother have no unrelated males in her home when C.H. was there, that C.H. be allowed to “cool down” at the paternal grandparents’ home when needed, that the parties should communicate via Our Family Wizard, and that Father should provide Mother with timely information regarding C.H.’s educational, health, and extracurricular activities. Id. at 59-60.

[9] In October 2023, the trial court issued an order temporarily modifying Mother's parenting time in keeping with the GAL's recommendations. Id. at 61. The trial court conducted a hearing on November 7 and 8, 2023, “to address custody and parenting time.” Appealed Order at 1. Other dissolution matters were to be resolved via mediation. Though represented by counsel throughout much of the case, Mother no longer had legal representation by the time of the two-day evidentiary hearing.

[10] In March 2024, the trial court issued a detailed ten-page partial dissolution decree, which granted Father “primary physical and sole legal custody of” C.H. Id. at 8. The trial court deviated from the GAL's recommendation regarding parenting time, ordering that C.H. “reside with Father on Mondays, Tuesdays, Wednesdays and alternate weekends” and “reside with Mother from 6:00 p.m. Wednesday through 8:00 p.m. Thursday and on alternate weekends.” Id. at 9. The Indiana Parenting Time Guidelines would guide summer school break, holidays, and other special days. The trial court ordered that C.H. be allowed to “cool down” at paternal grandparents’ home, encouraged Mother to continue counseling, recommended therapy for C.H., ordered the parties to utilize Our Family Wizard in a timely fashion, and admonished the parties not to use C.H. to convey messages between his parents. Id. at 8, 9. The trial court further ordered that Father keep Mother apprised of educational, medical, mental health, and extracurricular activities, so that she could attend or participate, and that Father share with Mother information regarding directly contacting C.H.’s school and providers. The trial court specified that each party could take C.H. to the parent's place of worship when C.H. was in the parent's care. In addition, the trial court required that each party keep the other informed of C.H.’s whereabouts and contact information when taking him out of the state or country for more than four hours. Child support, property division, and postsecondary education issues were handled separately.

[11] Father appeals.

Discussion and Decision

[12] As an initial matter, we note that Mother has not filed an appellee's brief. When an appellee fails to submit a brief, we will not develop an argument for the appellee but instead will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error. Salyer v. Wash. Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020). Prima facie error is error “at first sight, on first appearance, or on the face of it.” Solms v. Solms, 982 N.E.2d 1, 2 (Ind. Ct. App. 2012).

[13] Father contends that “the trial court abused its discretion in awarding parenting time to [Mother] in excess of the Indiana Parenting Time Guidelines” and “failed to properly consider all of the statutory factors” when rendering its decision. Appellant's Br. at 14, 19. Where, as here, the trial court enters specific findings of fact to support its decision, “the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). Findings are clearly erroneous “when the record contains no facts to support them either directly or by inference.” Hamilton v. Hamilton, 103 N.E.3d 690, 694 (Ind. Ct. App. 2018), trans. denied. “A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts.” Campbell v. Campbell, 993 N.E.2d 205, 209 (Ind. Ct. App. 2013), trans. denied. “To determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made.” Id. “We accept unchallenged findings as true.” Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind. Ct. App. 2019).

[14] “Indiana recognizes that the right of a noncustodial parent to visit his or her children is a precious privilege” and that a child “has the correlative right to receive parenting time from the noncustodial parent because it is presumed to be in the child's best interest.” S.M. v. A.A., 136 N.E.3d 227, 230 (Ind. Ct. App. 2019) (internal quotation marks omitted). On review, we are mindful that “there is a well-established preference in Indiana ‘for granting latitude and deference to our trial judges in family law matters.’ ” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). Our supreme court has explained,

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.

Id. (citations and quotation marks omitted).

[15] Accordingly, when reviewing a trial court's determination of a parenting time issue, “we will reverse only when the trial court abuses its discretion.” In re Paternity of C.H., 936 N.E.2d 1270, 1273 (Ind. Ct. App. 2010), trans. denied (2011). “An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or if the court misinterpreted the law.” Hazelett v. Hazelett, 119 N.E.3d 153, 161 (Ind. Ct. App. 2019). “If there is a rational basis for the trial court's determination, then no abuse of discretion will be found.” C.H., 936 N.E.2d at 1273. In all parenting time controversies, courts are required to give foremost consideration to the child's best interests. Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App. 1998), trans. denied (1999).

[16] In making an initial custody determination, the trial court shall “enter a custody order in accordance with the best interests of the child.” Ind. Code § 31-17-2-8. In determining the child's best interests, “[t]here is no presumption favoring either parent.” Id. The court must consider all relevant factors, including the following:

(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.․

Id.

[17] Father maintains that Mother's “usage of illegal substances and exposure of significant other to C.H. is contrary to his best interests.” Appellant's Br. at 15. Father introduced two photos of Mother smoking marijuana while dressed in lingerie, and the trial court admitted them “for the limited purpose of indicating” that she “may have used marijuana.” Tr. Vol. 2 at 154. No evidence was introduced that Mother used marijuana in the presence of C.H. The trial court also heard Father testify that he had smoked marijuana but never brought it into the home while children were present. Id. at 189-90. We do not dispute that evidence of parental drug use may be one of several facts relevant to a parent's health and a child's best interests. See, e.g., Nelson v. Nelson, 10 N.E.3d 1283, 1288 (Ind. Ct. App. 2014). However, given the limited evidence presented regarding each parent's marijuana use, i.e., at some point outside of C.H.’s presence, the trial court did not abuse its discretion by focusing on issues other than drug use when making its parenting time decision.

[18] As for the exposure to unrelated individuals, the trial court explained:

This Court has repeatedly directed parents not to expose minor children to “significant others” during the pendency of the dissolution of marriage action. In the experience of the Court, such relationships are often confusing to children and a source of conflict between the parties. Such relationships may also be a source of embarrassment to a child, and Father indicates that that is true in the case of [C.H.]. But this Court does not believe that it is appropriate for a court to dictate private morality once the marriage of the parties has been dissolved. In this case, the parties have been separated for a significant period. Mother should exercise prudent judgment in introducing [C.H.] to her friends, as should Father.

Appealed Order at 5. The trial court recognized Mother's prior behavior, indicated why it might be confusing and drive conflict, but also pointed out the lengthy separation and the post-divorce reality that parents may very well have new persons in their lives. We see no abuse of discretion in the trial court's explanation or in its recommendation that prudent judgment should be the rule moving forward following the dissolution after a six-year separation.

[19] Father also asserts that Mother's “conduct and home atmosphere resulted in at least one physical altercation” between Mother and C.H. and “caused C.H. to appear to be possibly suicidal.” Appellant's Br. at 17, 23. Father strongly disagrees with how Mother managed the mental health situation. Father argues that C.H. told the GAL that Father's house is more structured, that he can talk to Father about his feelings, and that he would like to spend more time in Father's house. The altercation referenced by Father appears to be an instance when C.H. shoved Mother and briefly placed her in a choke hold, which Mother “knew” would not hurt her. Tr. Vol. 3 at 40. Despite the conflicts and other concerns, the GAL testified that she “would like to see [C.H.] have more time with [Mother]. Um, I think he needs his mother. It's a very important relationship.” Tr. Vol. 2 at 102-03.

[20] The trial court acknowledged C.H.’s negative behaviors in relation to Mother and that C.H. “does not appear to experience such conflicts with Father.” Appealed Order at 2, 3. The trial court also noted Dr. Wingard's report that C.H. “[did] not appear to be at risk for self-harm,” needs a therapist able to deal with a high conflict divorce, and “wants to see [Mother] regularly” with the possibility of being taken to paternal grandparents to “cool down” if he becomes upset. Id. at 3; Appellant's App. Vol. 2 at 53. Accordingly, the trial court took great pains to outline therapy requirements for C.H., ensure cool-down opportunities, and provide several specific communication rules for the parties moving forward. In addition, the trial court recommended therapy for Mother. Clearly, there was a rational basis for the trial court's resolution.

[21] In a related argument, Father questions the trial court's treatment of C.H.’s age, anxiety, frustrations, and mental health. However, the trial court was well aware of C.H.’s age, mental health, and behaviors and explicitly noted them more than once in its order. Appealed Order at 2, 3, 6, 8. Rather than ignoring or downplaying those considerations, the trial court simply weighed them differently than Father would have preferred. Its decision in this regard was not clearly against the logic and effect of the facts and circumstances before it.

[22] Father also faults the trial court for not mentioning homework issues. Father introduced dozens of electronic messages, some of which concerned C.H.’s failure to complete homework. The trial court also heard testimony from both parties regarding their differing approaches to homework. Father indicated that his approach is very structured, while Mother places more responsibility upon twelve-year-old C.H. Tr. Vol. 2 at 165, 201. The trial court found that the parties “have sharp disagreements about appropriate education” for C.H., with Mother preferring a flexible curriculum, a focus on the child's interest, and hands-on education. Appealed Order at 3.

[23] Ultimately, the trial court granted Father sole legal custody, and thus Father now determines major educational decisions. See Ind. Code § 31-17-2-17(a). Such decisions would include C.H. attending a nearby traditional public school and would encompass requiring C.H. to complete his homework regardless of where C.H. sleeps. According to the parenting time plan crafted by the trial court, C.H. will be at Father's home all of Mondays, all of Tuesdays, most of Wednesdays, Thursday evenings (except on the eve of a weekend with Mother), and every other weekend. Recalling the latitude and deference afforded trial courts in family law matters, we see no abuse of discretion in this parenting time arrangement, which will result in C.H. spending significantly more time with Father than with Mother. Father has failed to establish prima facie error. Although we hope that the parties keep C.H.’s best interests foremost as they co-parent, options exist should issues arise despite the trial court's thoughtful determination.

[24] Affirmed.

Crone, Judge.

Judges Bradford and Tavitas concur. Bradford, J., and Tavitas, J., concur.