Duncan v. Duncan

• Decision Date: 16 March 2006
• Docket Number: No. 53A04-0507-CV-383.,53A04-0507-CV-383.
• Citation: 843 N.E.2d 966
• Parties: Bradley W. DUNCAN, Appellant-Petitioner, v. Rhonda S. DUNCAN, Appellee-Respondent.
• Court: Indiana Appellate Court

843 N.E.2d 966

Bradley W. DUNCAN, Appellant-Petitioner, v. Rhonda S. DUNCAN, Appellee-Respondent.

No. 53A04-0507-CV-383.

Court of Appeals of Indiana.

March 16, 2006.

Earl Singleton, Bret Kleefuss, Indiana University Community Legal Clinic, Bloomington, for Appellant.

Teresa D. Harper, Bloomington, for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Petitioner, Bradley W. Duncan (Father), appeals the trial court's findings of fact and conclusions of law denying Father's Motion to Establish Parenting Time in favor of Appellee-Respondent, Rhonda S. Duncan (Mother).

We affirm.

ISSUE

Father raises two issues on appeal, which we consolidate and restate as the following issue: Whether the trial court abused its discretion by denying Father's Motion to Establish Parenting Time.

FACTS AND PROCEDURAL HISTORY¹

Father and Mother were married on October 23, 1993. Mother had two children from a previous relationship: H.D., born on November 26, 1987 and R.D., born on January 17, 1990. During the marriage, S.D. was born on December 4, 1997. Father adopted H.D. and R.D. on February 2, 2001. While Mother worked, Father supervised the children during the time they were not in daycare.

When H.D. was five years old, Father began molesting her by having her touch his penis and by forcing her to perform oral sex on him. Incidents of molestation occurred regularly throughout H.D.'s childhood. When H.D. turned eleven, Father started to have sexual intercourse with her. In 1999, when she was thirteen, H.D. told a neighbor that Father had been molesting her sexually since she was five years old. However, before representatives of the Office of Family and Children arrived, Father located H.D. at the neighbor's home and insisted he take her home. Upon arriving home, Father informed H.D. that he had a loaded gun but did not indicate what he would do with it. Because she was afraid, she recanted when later interviewed by a case worker.

By the time H.D. was fifteen, the molestation increased in frequency. On August 11, 2003, H.D. ran away from home and walked to a store where she called her maternal grandmother. Only after about two weeks did she inform her grandmother about the sexual abuse. After learning what her daughter had endured, Mother called the police and left Father, taking the two younger boys with her. Father has since not had any contact with the children.

In January of 2004, Father was arrested and charged with child molestation, as a Class A felony and child molestation, as a Class B felony. While incarcerated, Father suffered a severe stroke, and as a result, the State dismissed the charges against him without prejudice in June of 2004. Earlier that year, on March 24, 2004, the trial court entered a Dissolution Decree, dissolving the marriage between Father and Mother. The Decree awarded Mother sole custody of the three children, providing in pertinent part that "[Mother] shall have sole custody of the minor children, and [Father] shall have no visitation with the minor children at this time." (Appellant's App. p. 9).

On February 18, 2005, Father filed his Motion to Establish Parenting Time with R.D. and S.D. On May 17, 2005, the trial court conducted a hearing on Father's motion. Thereafter, on June 10, 2005, the trial court issued its Order denying Father's motion and concluding in pertinent part:

As set forth in the Findings of Fact, [Father] molested H.D. over a period of 10 years. When she tried to report the abuse, he threatened her. [Father] exhibits no remorse for his actions. There is no evidence that he is willing to undergo sex offender treatment.

At the hearing, [Father] was adamant in demanding unsupervised visitation with the children. In his Motion to Establish Parenting Time, [Father] suggests that visitation be initiated through the counseling process.

Visitation, whether supervised or unsupervised, is not in the best interests of the children. [R.D.] is aware that [Father] has harmed his sister. He does not wish to visit with [Father]. [S.D.] has suffered from behavioral problems in the past. He is seeing a therapist to help with these problems. His behavior has improved. Clearly, visitation with [Father] would pose a danger to the physical health and safety of the children and might significantly impair their emotional development.

(Appellant's App. p. 10).

Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Father contends that the trial court abused its discretion by denying his Motion to Establish Parenting Time. Specifically, Father's argument is two-fold, asserting that: (1) the trial court's Order should be reversed because it misapplied the statutory standard for modification of visitation, and (2) the Order failed to enter separate conclusions to deny visitation with R.D. and S.D.

Upon review of a trial court's determination of a visitation issue, we will grant latitude and deference to our trial courts, reversing only when the trial court manifestly abuses its discretion. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002); Lasater v. Lasater, 809 N.E.2d 380, 400 (Ind. Ct.App.2004). No abuse of discretion occurs if there is a rational basis in the record supporting the trial court's determination. Lasater, 809 N.E.2d at 400. Therefore, 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. Kirk, 770 N.E.2d at 307. We will neither reweigh evidence nor judge the credibility of witnesses. Lasater, 809 N.E.2d at 400. In all visitation issues, courts are required to give foremost consideration to the best interests of the child. Id.

Indiana has long recognized that the rights of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents. Id. at 400-01. As a result a noncustodial parent is generally entitled to reasonable visitation rights. Ind.Code § 31-17-4-1. A court may modify an order granting or denying visitation rights whenever this modification would serve the best interests of the child. I.C. § 31-17-4-2. However, a parent's visitation rights shall not be restricted unless the court finds that "the visitation might endanger the child's physical health or significantly impair the child's emotional development." Id. Even though the statute uses the term "might," we have previously interpreted the language to mean that a court may not restrict visitation unless that visitation would endanger the child's physical health or emotional development. See Stewart v. Stewart, 521 N.E.2d 956, 960 n. 3 (Ind.Ct.App.1988), reh'g denied, trans. denied.

Initially, we need to address Father's overarching argument that the trial court abused its discretion by denying Father's visitation with R.D. and S.D. based on unproven molestation charges stemming from before the divorce. Generally, even though testimony of Father's conduct prior to the original divorce decree is inadmissible, here, the error is not reversible. See K.B. v. S.B., 415 N.E.2d 749, 754 (Ind. Ct.App.1981). The principle that testimony regarding conduct prior to the divorce decree is inadmissible is a necessary corollary to the requirement of change of conditions for the modification of visitation rights because it prevents the relitigation of issues decided at the original dissolution hearing. Id. However, the record shows that not only did Father fail to object to the introduction of this evidence, he requested the trial court to take judicial notice of the dissolution decree and did not object to Mother's request for the trial court to also take judicial notice of the actual transcript and proceedings of the dissolution hearing. Accordingly, we conclude that Father's action or failure thereof, in essence, placed before the trial court all the evidence of the parties' conduct before the dissolution decree and was equally an invitation to the trial court to reopen issues previously litigated. See id.

Turning to the merits of Father's argument, we are confronted with a case that illustrates the tension between protecting children from heinous sexual abuse and protecting parents from the interruption and loss of parental rights, which almost inevitably accompanies a charge of sexual abuse. See, e.g., Farrell v. Littell, 790 N.E.2d 612 (Ind.Ct.App.2003). Reviewing the trial court's Order, we are left with the impression that the trial court used H.D.'s underlying molestation charges against Father to largely justify the denial of a modification in his visitation rights with H.D.'s two younger brothers. In the instant case, H.D. testified in camera about the abuse endured while growing up in the Duncan household. Even though H.D.'s claims were substantiated by the Monroe County Division of Family and Children and formal charges were filed, the State dismissed the case after Father suffered a severe stroke while incarcerated leaving him permanently disabled. The trial court noted that Father not only adamantly denied any wrongdoing but also insisted on unsupervised visitation with the children.

In denying parenting time with R.D. and S.D., the trial court concluded that, based on the evidence before it, visitation with Father would not be in the children's best interest as it would pose a danger to the physical health and safety of the children and might significantly impair their emotional development. Our review of the record establishes that Father and R.D. "bumped heads a lot" to the point where R.D. ran away. (Transcript p. 173). When Mother arranged for counseling sessions for R.D., Father only allowed him to go to one therapy session before pressuring him to stop. Moreover, H.D. testified that she told R.D. about the molestation. The trial court, conducting an in camera interview with R.D., stated that the child does not want to visit with Father.

S.D., now eight years old, has...