MONNETT v. MONNETT (2024)

MEMORANDUM DECISION

[1] Jesse Monnett (“Father”) appeals the Putnam Circuit Court's denial of his petition to modify custody of his minor child (“Child”) with Melissa Monnett (“Mother”). Father raises one issue for our review, namely, whether the trial court abused its discretion when it denied his petition.

[2] We affirm.

Facts and Procedural History

[3] Father and Mother (collectively, “Parents”) were married and have one child together, who was born August 18, 2019. Parents divorced in March 2022, and they agreed that Mother would have primary physical custody of Child, with Parents sharing joint legal custody of him. Father exercised parenting time with Child, and Father's parents (“Paternal Grandparents”) provided part-time daycare for Child in their home.¹

[4] On April 25, 2023, Father filed an emergency petition for contempt and enforcement of parenting time. Father alleged that Mother had denied him parenting time on three occasions and that she was not taking Child to Paternal Grandparents’ house for daycare. Thereafter, between May and November, Father filed four more petitions for contempt and a petition to modify custody of Child. Mother also filed a petition to modify custody and parenting time.

[5] In November and December, the trial court held a hearing on all pending matters. On January 24, 2024, the trial court issued an order, in relevant part: denying Father's petition to modify custody; denying Mother's petition to modify parenting time; denying Mother's request for sole legal custody; vacating its prior order that Paternal Grandparents provide part-time daycare for Child; finding Mother in contempt for denying Father's parenting time; ordering Mother to serve forty-eight hours in jail for that contempt; and ordering Mother to pay $2,500 of Father's attorney's fees.

[6] In support of its order, the trial court issued extensive findings and conclusions in relevant part as follows:

6. Multiple reports were called into the Department of Child Services (DCS) alleging the child to be a victim of sexual abuse. The alleged perpetrator was the paternal grandfather. Reports were made in March 2023 and in August 2023.

7. The reports were made to DCS by a medical professional, Mother, and Mother's attorney. The medical professional made the report based upon allegations made by Mother to the medical professional. Each of the DCS reports [was] investigated and unsubstantiated.

8. Putnam County DCS felt that Mother was coaching the child and was transferring her past trauma onto the child. Morgan County DCS found that the child was very attached to the grandparents and turned to them for comfort. Morgan County DCS also felt that Mother was coaching the child.

9. The allegations were investigated by Indiana State Police Detective Brian Maudlin. Detective Maudlin turned his investigation over to the Putnam County Prosecutor's office, but did not recommend any charges be filed against the paternal grandfather. However, Detective Maudlin did recommend that Mother be charged with false informing due to inaccurate statements she gave during the investigation. As of the date of the hearings, no charges had been filed against the paternal grandfather or Mother.

10. Mother withheld parenting time from Father while the DCS reports were being investigated and even after the reports were unsubstantiated. Mother would only allow parenting time supervised by herself at a location she approved. Father would contact Mother about parenting time and would even go to her apartment to pick-up the child[ ] but was not able to see the child. Father did not start getting his regular parenting time back with the child until after a court hearing on August 17, 2023. Since that court hearing, Father has been able to exercise his regular parenting time.

11. Father is requesting make-up days for days that he missed during Fall Break. Father did not realize he was to have the child for Fall Break until the Wednesday of Fall Break. Father was able to start exercising his Fall Break parenting time starting on Wednesday when he learned it was his year for Fall Break.

12. Mother has two older children, a son and a daughter, with Douglas Denham. Allegations were made that Mr. Denham had molested both children. The allegations were made at different times. An extensive investigation was conducted and Mr. Denham was never charged with any crimes. Mother also withheld parenting time from Mr. Denham due to these allegations.

13. Mother's memory of her divorce proceedings with Mr. Denham was quite limited, to say the least. Mother couldn't remember if they went to court, but she thought that she may have hired an attorney. However, the filings in the divorce case show that the parties had multiple divorce hearings, including contempt hearings. Mother was found in contempt of court for denying parenting time to Mr. Denham and the Parke Circuit Court contemplated modifying custody of the children away from Mother due to the false allegations made against Mr. Denham.

14. The Court finds Mother's lack of memory with regard to the divorce case with Mr. Denham not credible. It is hard to believe that Mother could not recall attending multiple court hearings, being found in contempt, and a Court threatening to take custody of her two children away from her.

15. Any evidence that the child was molested by the paternal grandfather is speculative, at best.

16. The child suffers from developmental delays. The most prominent delay is a speech delay. He currently is enrolled in a developmental pre-school at Deer Meadow Elementary School. When he is not attending Deer Meadow, the child attends New Pathways daycare. The parents do not agree on the child's need to attend developmental pre-school and/or daycare.

17. The child is progressing well at Deer Meadow. He attends school on Mondays, Wednesdays, and Fridays from 8:00-10:30 a.m. He has an IEP. He is academically behind his peers[ ] but is making progress. He is also making progress in his speech therapy. The school provides speech therapy at no cost to the parents. He interacts well with his classmates. Mother has not listed a father on the main enrollment form or as an emergency contact.

18. When Father was exercising his makeup parenting time, Father did not take the child to Deer Meadow or New Pathways. The child missed over a month of schooling while with Father.

19. The child is exhibiting severe behavior issues. The child becomes physically violent; strikes and kicks individuals, walls, and furniture; makes sexual gestures; and curses. This behavior has been exhibited in front of medical professionals, service providers, Mother, and Mr. Denham. The behaviors started over a year ago.

20. Mother and the professionals involved with the child have concerns about his behavior. Father states he does not witness this type of behavior and if there are any behaviors, Father contributes it to the child being a boy.

21. Mother has enrolled the child in several services without consulting Father first. Once Mother has the child enrolled, she may then contact Father and let Father know about appointments the child has scheduled. Mother has also failed to notify Father about the services.

22. Father does not engage in the services that Mother has enrolled the child. Father's reasoning is that Mother goes behind his back, enrolls the child, and then tells him about it later instead of discussing it with him first.

23. The behaviors exhibited by the child are worrisome and not normal for a child of his age. However, no one has been able to present any clear reasoning as to why the child is exhibiting these behaviors.

24. Mother relocated to a new residence in Greencastle in December 2023. Mother resides at the residence with this minor child and it is believed one other child. Mother visits with her daughter she shares with Mr. Denham on an open basis (this is the same daughter that Mother alleges was molested by Mr. Denham who now resides with Mr. Denham).

25. Mother currently works at Moore's Bar in Greencastle on Friday nights. Mother has a full-time job she can return to as a home health-aid[e] earning $16 per hour at 40 hours per week. Mother's current financial situation puts her into the negative each month.

26. Father resides with the paternal grandparents. Father has resided there for 2 years.

27. Father is a union pipelayer. Father earns $28.50 per hour and works at least 40 hours per week.

28. Father is able to put the child on his union provided health insurance[ ] but testified that Mother will not provide him with the child's social security number or birth certificate because she fears he will sell it on the “black market[.”] He is unable to add the child until he obtains this information.

29. Father admits he has a history of substance abuse. As a result of the substance abuse, Father currently suffers from Hepatitis C for which he is undergoing treatment. Father has been on probation since November 2021 and has not had any positive drug screens. Father takes suboxone to help treat his substance abuse. Father submitted to a hair follicle drug screen, upon Mother's request, which returned negative.

30. Mother admits she has a history of substance abuse. Mother's drug of choice is marijuana. Mother is currently involved with therapy to address her substance abuse. Mother is progressing well in her treatment.

31. The Court finds that Mother has a history of making allegations of sexual molestation against male figures that are involved in her children's lives. Mother has made these allegations regarding her three youngest children. No evidence has been presented to show that the allegations made by Mother are true. In fact, investigators have accused Mother of coaching the children and even recommended Mother be charged with false informing due to making inaccurate accusations.

32. The Court finds that Mother violated this Court's Order in refusing Father his parenting time in May, June, July, and August 2023. Mother's refusal was willful and without justification. Mother shall be found in contempt of court for violating the Court's orders and shall be responsible for legal fees incurred by Father in bringing the contempt actions.

33. The Court finds that the child suffers from behavioral issues that are not typical of a child his age. These behaviors have been witnessed by medical professionals and service providers. Father does not want to put any credibility or concern into the behaviors of his son and denies that he ever sees these behaviors. It is more likely that Father is diminishing any behaviors exhibited by the child and wants to pass it off by saying the child is a boy and is acting like a boy. Father needs to recognize that the behaviors being exhibited by his son are not normal and need to be addressed to find the underlying cause. Father needs to be more involved with the behaviors being addressed and stop focusing on the logistics of how the services came to be put in place. The Court finds it is unlikely that Mother and Father would have ever agreed on having the child work with any professionals on his behaviors as the parents do not agree that the child is exhibiting behaviors.

34. The Court finds that Mother does enroll the child in services and tells Father about it later, which she should not be doing. Mother should be discussing these matters with Father prior to enrolling the child in the services and advising Father of any appointments immediately upon them being made.

35. The Court finds that the child needs to be involved in a developmental pre-school and daycare. The child has progressed well at Deer Meadow and New Pathways and should continue in this schooling. Focus needs to be put on the child continuing to make developmental strides that will benefit him throughout his lifetime and having him in the programs that will allow this to happen. The paternal grandparents are still able to see the child during Father's parenting time.

36. Although there is great concern about Mother making the allegations of sexual abuse and not allowing Father his parenting time, Mother has taken steps to provide for the child that Father has not. It is a great concern to the Court that, if Father were to receive custody, Father would not continue to have the child in developmental pre-school and would not continue with the services the child is currently enrolled in without a specific court order that he do so. It is also likely that Father would continue to not support the child being in developmental preschool and services which could lead to the child not progressing as he should.

37. Courts are, at times, left to pick between two less-than-ideal choices and this case fits into that category.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:

38. It is not in the best interest of the child that custody be modified at this time. Father's request to modify custody is denied.

39. It is not in the best interest of the child that Father's parenting time be modified. Mother's request to modify parenting time is denied.

40. It is not in the best interest of the child that Mother have sole legal custody of the child. Mother's request for sole legal custody is denied. The parties shall maintain joint-legal custody.

41. The child shall remain enrolled in developmental pre-school at Deer Meadow and shall continue to attend daycare at New Pathways. Both parents shall make sure that the child attends school and daycare on the scheduled days while in his or her care unless the child is sick or has a medical/service provider appointment that would prevent the child from attending school and/or daycare. The parents shall attempt to schedule appointments during a time that would not interfere with the child attending Deer Meadow.

42. The Court vacates the prior order that the paternal grandparents shall be allowed to provide daycare two days per week.

43. Mother shall continue to attend her substance abuse therapy and follow all recommendations until such time that she is released by the service provider.

44. The child shall continue to meet with a speech therapist until such time that he is released by the speech therapist. Both parents shall make sure that the child attends any appointments that may be made during his or her parenting time.

45. The child shall also continue to engage in therapy to [aid] in correcting his behavior issues until such time that the service providers release the child. Both parents shall make sure that the child attends any appointments that may be made during his or her parenting time.

46. Mother shall add Father's name to any and all education, medical, therapy, etc. records involving the child within thirty (30) days of the date of this Order.

47. Mother shall be found in contempt of Court for denying Father's parenting time. Mother has a history of violating court orders by denying parenting time without first obtaining any court orders.

48. In an attempt to coerce Mother to follow the Court's orders in the future, Mother shall serve forty-eight (48) hours in the Putnam County Jail. Mother's release after forty-eight hours is conditioned upon Mother complying with the Court's orders regarding parenting time in the future. Mother is admonished that if she were to deny parenting time like this again in the future it is likely the Court will order a change in custody.

49. Mother shall notify the Court no later than 4:00 p.m. on January 31, 2024[,] as to when she will report to serve the forty-eight hours. Mother shall serve the forty-eight hours no later than February 29, 2024.

50. Mother shall reimburse Father $2,500 in attorney fees incurred in Father bringing the contempt action. Mother shall pay this reimbursement directly to Father's counsel, Paul Hadley, no later than February 29, 2024.

Appellant's App. Vol. 2, pp. 31-37. This appeal ensued.

Discussion and Decision

[7] Father contends that the trial court abused its discretion when it denied his petition to modify custody of Child. Our standard of review is well settled.

We review custody modifications for an abuse of discretion “with a preference for granting latitude and deference to our trial judges in family law matters.” Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011), trans. denied. This is because it is the trial court that observes the parties’ conduct and demeanor and hears their testimony firsthand. In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012), trans. denied. We will not reweigh the evidence or judge the credibility of the witnesses. Id. Rather, we will reverse the trial court's custody determination only if the decision is “clearly against the logic and effect of the facts and circumstances or the reasonable inferences drawn therefrom.” Id. (citation omitted). “[I]t 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.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). It is not impossible to reverse a trial court's decision regarding child custody on appeal, but given our deferential standard of review, it is relatively rare. See Montgomery v. Montgomery, 59 N.E.3d 343, 350, 354 (Ind. Ct. App. 2016), trans. denied.

Hecht v. Hecht, 142 N.E.3d 1022, 1028-29 (Ind. Ct. App. 2020).

[8] Initially, we note that Mother has not filed an appellee's brief. In such circumstances,

we apply a less stringent standard of review. We are under no obligation to undertake the burden of developing an argument for the appellee. We may, therefore, reverse the trial court if the appellant establishes prima facie error. “Prima facie” is defined as “at first sight, on first appearance, or on the face of it.”

Deckard v. Deckard, 841 N.E.2d 194, 199 (Ind. Ct. App. 2006) (citations omitted).

[9] Indiana Code section 31-17-2-21 provides, in relevant part, that

(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.

[10] And Indiana Code section 31-17-2-8 provides, in relevant part, that the court shall 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.

[11] In his brief on appeal, Father does not challenge any of the trial court's findings. Rather, he argues that our opinion in Maddux v. Maddux, 40 N.E.3d 971 (Ind. Ct. App. 2015), requires reversal here. In Maddux, the mother engaged in an “egregious and ongoing pattern of disregarding [the father's] visitation rights and filing unsubstantiated allegations of abuse” against the father. Id. at 979. The trial court denied the father's petition to modify custody of his children.

[12] On appeal, we observed that the evidence and findings showed “a pervasive pattern of egregious behavior by the custodial parent adversely affecting the children's wellbeing.” Id. at 980. In reversing the trial court, we held:

In ruling on Father's petition for contempt, the trial court concluded that Mother had “irreparably harmed [the Children's] emotional wellbeing.” However, in assessing the Children's best interests, the court inexplicably concluded the opposite. The findings support the trial court's conclusion of Mother's irreparable harm to the Children; they do not support the trial court's determination concerning best interests. The trial court clearly erred in concluding that the Children's best interests do not warrant a change in custody.

Id. at 981 (citation omitted).

[13] Analogizing his case to Maddux, Father contends that, given the trial court's findings regarding Mother's bad behavior, including false allegations of abuse, the trial court abused its discretion when it denied his petition to modify custody. But in support of that argument, Father focuses solely on the court's findings regarding Mother's bad behavior. Father completely ignores the court's findings regarding Father's own failures, most significantly his refusal to recognize Child's special needs, which require multiple services, and his history of substance abuse. In other words, Father's argument on appeal amounts to a request that we reweigh the evidence, which we cannot do.

[14] As the trial court thoughtfully found, “Courts are, at times, left to pick between two less-than-ideal choices[,] and this case fits into that category.” Appellant's App. Vol. 2, p. 35. In other words, the trial court found that both Father and Mother have significant shortcomings, and the court, in its broad discretion, decided to continue the status quo of physical custody with Mother. Notably, as punishment for Mother's contempt, the court ordered her to serve forty-eight hours in jail. Moreover, the trial court made clear that Mother was on extremely thin ice and any future noncompliance with court orders might result in a change of custody.

[15] For all these reasons, we cannot say that the trial court abused its discretion when it denied Father's petition to modify custody.

[16] Affirmed.

FOOTNOTES

1.   At some point, the trial court ordered that Paternal Grandparents would provide part-time care for Child.

Mathias, Judge.

Brown, J., and Kenworthy, J., concur.