Katrina Matheis, Appellant-Respondent v. Sean McEvilly, Appellee-Petitioner (2025)

MEMORANDUM DECISION

[1] Katrina Matheis (“Mother”) appeals the Hendricks Superior Court's order resolving thirty pending petitions/motions, including the court's denial of Mother's petition to modify legal custody and motion for rule to show cause alleging that Sean McEvilly (“Father”) should be found in contempt of court for failure to pay child support.¹ Mother presents three issues for our review:

1. Whether the trial court abused its discretion when it denied h petition to modify legal custody.

2. Whether the trial court abused its discretion when it did not find Father in contempt for failure to pay child support.

3. Whether the trial court displayed bias against Mother.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] Father and Mother (collectively, “Parents”) were married and have two daughters together: Mac.M., born in 2012, and M.M., born in 2013 (collectively, “the Children”). In 2017, the trial court dissolved Parents’ marriage and awarded primary physical custody of the Children to Mother, with Parents sharing legal custody. The trial court awarded parenting time to Father and ordered him to pay child support of $176 per week.²

[4] As a result of the COVID-19 pandemic, Father was unemployed for ten months, and he stopped paying child support in September 2020. On February 10, 2021, Mother filed a verified motion for rule to show cause why Father should not be found in contempt for failure to pay child support. In response, on February 26, Father filed a petition to modify his child support obligation. While that petition was pending, Father did not resume child support payments—even after securing new employment in May—and his arrearage continued to grow. Mother filed a second verified motion for rule to show cause in August 2021.

[5] The Children have been involved in extracurricular activities, including year-round competitive cheerleading, which has taken up much of their free time over the years. Their after-school schedules have conflicted with Father's parenting time on several occasions.

[6] Since the dissolution of their marriage, Parents have been unable to communicate effectively, and, as a result, they have each filed numerous motions and petitions with the trial court. In 2021, the trial court appointed a Guardian ad Litem (“GAL”) to assess custody issues and a parenting coordinator to help with communication and parenting time issues.

[7] On June 19, 2024, Mother filed a third verified motion for rule to show cause why Father should not be held in contempt for his continued failure to pay child support. Mother alleged that Father's arrearage was more than $20,000, and she requested attorney's fees.

[8] In July 2024, the trial court held a hearing to consider thirty pending motions and petitions filed by Parents. The trial court denied most of Parents’ petitions and motions. Mother appeals only the court's denial of her petition to modify Parents’ joint legal custody and its denial of her three motions for rule to show cause why Father should not be found in contempt for his failure to pay child support. Notably, the court ordered each party to pay their own attorney's fees and explained that order as follows:

The Court finds that if the parties would conduct intelligent [and] respectful communication and be understanding of one another they would be less litigious. The Court finds that the vast majority of the 30 petitions and motions [it] has ruled on are directly the result of a lack of respect and communication. The parties are ordered to stop discussing court issues with the minor children. The parties’ continued lack of respect and lack of communication will directly cause damage to their children's emotional and mental health. In addition, it will cause resentment in their children. The parties shall stop ruining aspects of their children's childhood by their lack of communication and respect.

Appellant's App. Vol. 2, p. 77.

[9] The court's order continued:

36. The parties shall use the Our Family Wizard app for communication and shall use the shared calendar.

37. The parties shall be respectful and lenient regarding transportation for parenting time exchanges.

38. The parties have been previously ordered not to talk negatively about each other to or in front of the children. Clearly that order has been ignored by both parties. The parties are ordered to put some adult thought into the communication they have [with] and in front of the children. Nothing the parties do will erase the other parent from the children's world. It appears that is what each party wants to happen.

* * *

40. The Court orders the parents to co-parent and to stop conducting themselves in a petty, immature, whiny and disrespectful manner.

Id. at 78. This appeal ensued.

Discussion and Decision

Issue One: Joint Legal Custody

[10] Mother first contends that the trial court abused its discretion when it denied her petition to modify joint legal custody. Our standard of review is well settled.

There is a well-established preference in Indiana for granting significant latitude and deference to our trial judges in family law matters. Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). 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). Therefore, on appeal we will not “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). 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.” In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012), trans. denied. “[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, 770 N.E.2d at 307.

McDaniel v. McDaniel, 150 N.E.3d 282, 288 (Ind. Ct. App. 2020).

[11] Mother argues that, given the consistent problems Parents have had with communication, the trial court should have granted her petition to modify joint legal custody and awarded her sole legal custody of the Children. In support, Mother cites the GAL's testimony recommending that Mother have sole legal custody of the Children because “it's clear that co-parenting is a battleground between these parents and they simply cannot functionally communicate. [T]hey've tried parenting coordinators and it's ․ just a battleground and that's unfortunately the route we have to go.” Tr. Vol. 3, p. 12. In her final report, the parenting coordinator noted that Father's “failure to participate [in the process] in good faith has obviously hampered the [parenting coordinating] process.” Appellant's App. Vol. 2, p. 166. And Mother cites the trial court's own finding that Parents need to “stop conducting themselves in a petty, immature, whiny and disrespectful manner.” Id. at 78.

[12] In addition, the parties underwent an extensive custody evaluation with Dr. Bart Ferraro, who, in an eighty-plus-page ³ report, found that

these parties have proven beyond a reasonable doubt that they are currently incapable of sharing Legal Custody and carrying out the communication necessary to succeed in this effort. Both have contributed to the failure of this arrangement. The criteria established in Indiana Code [section] 31-17-2-15 have been considered in this regard. Even with the supportive intervention of a Parenting Coordinator, joint decisions could not be established or carried through on a reliable basis.

Appellant's App. Vol. 3, p. 84. Dr. Ferraro concluded that Mother should have sole legal custody of the Children. Dr. Ferraro repeated that opinion during the hearing.

[13] Given that evidence, Mother contends that the circumstances here warrant a modification of joint legal custody based on this Court's opinion in Aylward v. Aylward, 592 N.E.2d 1247 (Ind. Ct. App. 1992). In Aylward, the parties’ dissolution decree provided for joint legal custody of their children despite mother's allegations that father had sexually abused their minor daughters. On appeal, mother asked that we reverse the trial court and order that she be awarded sole legal custody of the children. On review, we “interpret[ed] the trial court's findings justifying its imposition of joint legal custody ․ as indicating that the trial court imposed joint legal custody precisely because the parents have made child rearing a battleground.” Id. at 1252 (emphasis in original). And we observed that “[w]e would be surprised if any member of this family c[ould] survive the hostilities.” Id. In reversing the trial court, we concluded that the “evidence overwhelmingly reveals a clear abuse of trial court discretion in that the joint custody award constitutes an imposition of an intolerable situation upon two persons who have made child rearing a battleground.” Id.

[14] While there are parallels between the facts in Aylward and this case, Aylward was an appeal from an initial custody determination in a dissolution decree. Here, however, Mother appeals from the trial court's denial of her petition to modify joint legal custody of the Children. Mother ignores the significant distinction between the applicable legal analyses. Indeed, in her argument, Mother cites only Indiana Code section 31-17-2-15, which applies to an initial custody determination, and she ignores Indiana Code section 31-17-2-21, which applies to modification of an existing custody order.

[15] Indiana Code section 31-17-2-21 provides in relevant part:

(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 and, if applicable, section 8.5 of this chapter.

(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.

[16] Mother makes no argument on appeal either that modification of legal custody is in the best interests of the Children or that there has been a substantial change in any of the relevant statutory factors. Thus, without any relevant cogent argument to support reversing the trial court's denial of her petition to modify legal custody, Mother has waived this issue for our review.

[17] Waiver notwithstanding, we cannot say that the trial court abused its broad discretion when it denied Mother's petition. Father testified that Mother had consistently excluded him from decisions regarding the Children, including the decision to enroll the Children in therapy. And while Dr. Ferraro testified that Mother should have legal custody of the Children, he also testified that “scaffolding will be needed to ensure that [Father]’s voice is heard and considered as is required.” Tr. Vol. 3, p. 104. Dr. Ferraro testified further that he recommended that Father be involved in choosing the Children's therapist and participate in discussions with M.M.’s doctor regarding appropriate medications to treat her ADHD.

[18] In support of its denial of Mother's petition, the trial court found that

the parties are intelligent individuals who love their children and want the best for them. At the time of the filing of this Petition (February of 2021), the parties had a continued failure to communicate largely regarding extra-curricular activities. There have been four summers, four spring breaks and three fall breaks following the filing of this petition. The Court finds no delay was caused by a Court and therefore the ruling now comes in 2024. There have been no significant issues regarding educational, religious, or medical/healthcare decisions[4] regarding the children. As intelligent, involved, and caring parents, the parties should be able to communicate and, frankly, need to grow up and do so. Petition to modify legal custody is denied. The Court “clarifies” prior orders and orders that if there [are] two weeks for the children's fall and or spring break, each party shall have one week with Father having the first week. If there is only one week of break, Father shall have parenting time during that week. The Court denies Mother's request for a week on/week off for summer parenting time. Summer parenting time shall be pursuant to the Indiana Parenting Time Guidelines. Father shall not discuss Court issues with the minor children.

Appellant's App. Vol. 2, pp. 72-73 (emphases added).

[19] As we have repeatedly stated, “[t]he value of the trial court's close proximity to the parties and the issues in child custody cases cannot be overstated, and we are mindful that the trial court was in a better position than we are to make a decision on the merits.” McDaniel v. McDaniel, 150 N.E.3d 282, 291 (Ind. Ct. App. 2020). Our review of the evidence most favorable to the trial court's judgment has not left us firmly convinced that a mistake has been made. We conclude that the trial court's modification order is neither clearly erroneous nor an abuse of discretion.

Issue Two: Contempt

[20] Next, Mother argues that the trial court abused its discretion when it denied her motions for rule to show cause why Father should not be held in contempt for his failure to pay child support. “It is soundly within the discretion of the trial court to determine whether a party is in contempt, and we review the judgment under an abuse of discretion standard.” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012)). “We will reverse a trial court's finding of contempt only if there is no evidence or inference therefrom to support the finding.” Id.

In general, contempt of court involves disobedience of a court which undermines the court's authority, justice, and dignity. Hopping v. State, 637 N.E.2d 1294, 1297 (Ind. 1994) ․ [A]mong the inherent powers of a court is that of maintaining its dignity, securing obedience to its process and rules, rebuking interference with the conduct of business, and punishing unseemly behavior. State v. Shumaker, 200 Ind. 623, 157 N.E. 769, 775 (1927).

City of Gary v. Major, 822 N.E.2d 165, 169 (Ind. 2005).

[21] As our Supreme Court explained in Witt,

[c]rucial to the determination of contempt is the evaluation of a person's state of mind, that is, whether the alleged contemptuous conduct was done willfully. [City of Gary, 822 N.E.2d] at 170 (“In order to be held in contempt for failure to follow the court's order, a party must have willfully disobeyed the court order.”); In re Perrello, 260 Ind. 26, 29, 291 N.E.2d 698, 700 (1973) (“The willful disobedience of a court order can constitute indirect ․ contempt. However, the act must be done willfully and with the intent to show disrespect or defiance.” (citations omitted)); Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999) (“When a person fails to abide by a court's order, that person bears the burden of showing that the violation was not willful.”). The determination of whether to find a party in contempt permits the trial court to consider matters which may not, in fact cannot, be reflected in the written record. The trial court possesses unique knowledge of the parties before it and is in the best position to determine how to maintain its “authority, justice, and dignity” and whether a party's disobedience of the order was done willfully.

964 N.E.2d 198, 202-03 (Ind. 2012).

[22] Here, as the trial court found, Father “has not made a child support payment since September 18, 2020.” Appellant's App. Vol. 2, p. 74. And the court found that Father is “currently more than financially capable of paying child support.” Id. But the court declined to grant Mother's motions, which had been filed in 2021 and 2024. In particular, with respect to her first motion in February 2021, the trial court found that

Father failed to pay child support as ordered. The Court finds that Father had an inability to pay the full weekly child support as ordered [due to] financial difficulties caused by [the] COVID[- 19] lay off. The Court finds that Father's failure to pay was not willful and wanton and therefore the Court does not find Father in contempt of Court and denies Mother's Verified Motion for Rule to Show Cause.

Id. at 72. The court addressed Mother's subsequent motions as follows:

10. 8-4-21: Mother's Verified Motion for Rule to Show Cause: The Court finds that Father has not paid his share of the medical expenses for the children. The Court denies the remaining allegations in this petition.

11. 8-4-21: Mother's Second Verified Motion for Rule to Show Cause: The Court finds that Father has not made a child support payment since September 18, 2020. Father is currently more than financially capable of paying child support. The Court finds that Father is not in contempt for failing to pay $101.00 in weekly child support as of August 2021.

* * *

27. 6-19-24: Mother's Verified Petition for Rule to Show Cause: The Court has ruled on Father's failure to pay child support as ordered above.

Id. at 74, 76.

[23] Mother argues that the trial court's finding that Father's failure to pay was not willful “is obviously in error.” Appellant's Br. at 20. She asserts that

Father was gainfully employed and[,] at least on May 10, 2021[, he] had the ability to pay something. While Father stated that he could not pay the full support obligation, he could have made some effort to pay instead of ignoring his obligation for nearly four (4) years. During that time period[,] the burden was solely on Mother to provide for the children.

Id.

[24] We agree with Mother that the trial court abused its discretion here. While the evidence supports the trial court's conclusion that Father's failure to pay any child support in the wake of the COVID-19 pandemic was not willful, the undisputed evidence shows that he subsequently resumed employment in May 2021. His failure to pay any child support for more than three years thereafter, despite having a job, was inexcusable, and the court should have held him in contempt of its child support order. Accordingly, we reverse the trial court's denial of Mother's verified motions for rule to show cause on this issue and remand with instructions to the trial court to order Father to pay Mother's reasonable attorney's fees associated with her August 2021 and June 2024 contempt motions.

Issue Three: Judicial Bias

[25] Finally, Mother alleges that, during a December 2023, hearing on an emergency petition to suspend Father's parenting time,⁵ the trial court exhibited bias against her. Specifically, Mother states that the trial court “made a statement seemingly criticizing [Mother] concerning how she intended to conduct her case,” “made a prejudicial statement without hearing all the evidence,” and made comments that appeared to blame Mother for Father's bad behavior. Appellant's Br. at 22. Mother suggests that, had the trial court not been biased against her, the court would have found Father to be in contempt of court for failure to pay child support.

[26] As our Supreme Court has explained,

[t]he law presumes that a judge is unbiased and unprejudiced in the matters that come before the judge. A judge has the discretionary power to disqualify himself or herself sua sponte whenever any semblance of judicial bias or impropriety comes to the judge's attention. In addition, where a judge harbors actual prejudice in a case, justice requires that a sua sponte judicial disqualification from the case be made. The record must show actual bias and prejudice against the defendant before a conviction will be reversed on the ground that the trial judge should have been so disqualified.

Flowers v. State, 738 N.E.2d 1051, 1060-61 (Ind. 2000), (abrogated on other grounds by Konkle v. State, 253 N.E.3d 1068 (Ind. 2025)) (citations omitted).

[27] Father contends that Mother has waived this issue for failure to make any objection to the trial court. Indeed, our Supreme Court has held that, “[w]here a [party claiming judicial bias] fails to object to comments a trial judge makes during trial, the issue is waived for review.” Id. at 1061. By her lack of objection, Mother deprived the trial court of any opportunity to cure any alleged bias. And, waiver notwithstanding, upon the record before us, we are not persuaded by Mother's argument that the trial court was biased against her.

Conclusion

[28] The trial court did not abuse its discretion when it denied Mother's petition to modify legal custody of the Children. But the trial court did err when it denied Mother's motions for rule to show cause. Accordingly, we reverse the trial court's contempt rulings and instruct the court to award Mother her reasonable attorney's fees associated with her August 2021 and June 2024 contempt motions. Finally, Mother has not shown that the trial court was biased against her.

[29] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   Our review of the chronological case summary shows that both parties are responsible for the delay in the court's resolution of their motions that had remained pending since 2021. The parties filed multiple motions to continue; Mother requested alternative dispute resolution; Father filed a motion to compel discovery; Mother filed a motion for a change of judge; Father filed a motion for a change of judge; Mother requested the appointment of a guardian ad litem; and multiple status hearings were continued.

2.   According to the trial court's order, it appears that, at some point, Father's child support obligation was reduced to $101 per week.

3.   The copy of Dr. Ferraro's report in the appendix is cut off at page eighty-six.

4.   Indiana Code section 31-9-2-67 defines “joint legal custody” to mean “that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training.”

5.   In Mother's presence, Father allegedly put a gun in his mouth and threatened to kill himself.

Mathias, Judge.

Judges Bradford and Kenworthy concur. Bradford, J., and Kenworthy, J., concur.