Feiock v. Ricciardi
| Decision Date | 16 February 2016 |
| Docket Number | No. 49A02–1506–JP–611.,49A02–1506–JP–611. |
| Parties | Christina FEIOCK, Appellant–Respondent, v. Korey RICCIARDI, Appellee–Petitioner. |
| Court | Indiana Appellate Court |
Erik H. Carter, Carter Legal Services LLC, Noblesville, IN, Attorney for Appellant.
Donna Jameson, Greenwood, IN, Attorney for Appellee.
[1] Christina Feiock (“Mother”) appeals the trial court's order granting Korey Ricciardi's (“Father”) motion to modify physical and legal custody of the couple's eight-year-old son. Here, when the son was three years old, Father established paternity of him and was awarded parenting time. Mother, however, did not comply with the trial court's orders regarding parenting time. She was later found to be in contempt on more than one occasion; nevertheless, she continued to deny parenting time to Father. During the custody modification hearing underlying this appeal, the trial court offered a modified cross-examination procedure to Mother, who appeared pro se. She did not object to the suggested procedure and engaged in a process where she discussed and refined her cross-examination questions with the trial court before they were posed to Father.
[2] On appeal, Mother raises multiple arguments, which we have consolidated and restate as the following: (1) the trial court violated her right to due process during the custody modification hearing by denying her right to cross-examine Father; and (2) the trial court abused its discretion by granting Father's petition to modify physical and legal custody. Concluding that Mother waived her due process argument by failing to object to the trial court's suggested cross-examination procedure and that Mother's arguments challenging the trial order modifying custody are nothing more than a request to reweigh the evidence and reassess the credibility of witnesses, we affirm the trial court's order.
[3] We affirm.
[4] Mother and Father are the parents of C.R., who was born in October 2006. Mother and Father were not married but lived together after C.R.'s birth until 2010.
[5] In March 2010, Father filed a petition to establish paternity of C.R. Thereafter, on June 16, 2010, Father and Mother filed an “Agreed Entry and Order Establishing Paternity” (“Agreed Order”), which the trial court accepted. (App.27). In this Agreed Order, the parties agreed that Mother would have sole physical custody of C.R. and that they would share joint legal custody. They also agreed that Father would have parenting time pursuant to the Indiana Parenting Time Guidelines, with the initial four months of Father's overnight parenting time supervised by paternal grandparents followed by unsupervised overnight parenting time.
[6] Approximately six months later, in December 2010, Father filed a petition for a contempt citation and rule to show cause (“petition for contempt”), seeking for the trial court to find Mother in contempt for failing to let Father have his parenting time.
[7] On February 4, 2011, Father filed a petition to modify custody. Father also filed another petition for contempt regarding Mother's denial of his parenting time, as well as, a petition for a Domestic Relations Counseling Bureau (“DRCB”) investigation and report. In April 2011, the DRCB met with the parents and then filed a report with the trial court in May 2011.1
[8] On September 14, 2011, the trial court issued an order, finding that there had not been a substantial change in one of the statutory custody modification factors and denying Father's petition to modify custody. The trial court, however, found Mother in contempt for failing to comply with the trial court's June 2010 Agreed Order regarding Father's parenting time. The trial court ruled that sanctions against Mother were to be held under advisement pending her compliance with the trial court's current order. Additionally, the trial court ruled that Father was entitled to make up the missed parenting time, and it modified Father's parenting time so that he would “have parenting time in excess of the Indiana Parenting Time Guidelines.” (App.34). Finally, the trial court ordered Mother and Father to complete parenting classes and to refrain from making any “disparaging remarks regarding the other parent or otherwise show disrespect for the other [p]arent in the presence of [C.R.].” (App.35).
[9] A few weeks later, on September, 29, 2011, the trial court held a hearing and determined that Father was entitled to fourteen overnight parenting time visits. The trial court again ruled that sanctions against Mother were to be held under advisement pending her compliance with the trial court's current order. Additionally, the trial court directed Father to ensure that C.R. was given his medication as directed by the child's doctor.2
[10] One month later, on October 28, 2011, Father filed an emergency petition for contempt and a request for sanctions. On November 17, 2011, the trial court held a hearing on Father's contempt petition. On November 22, 2011, the trial court issued an order, finding Mother “in contempt of the Court's orders on parenting time as entered on June 16, 2010, and September 14, 2011” for denying Father his parenting time on October 21–24, 2011. (Appellee's App. 2). The trial court ruled that Father was entitled to make up the denied parenting time. The trial court also determined that “[a]s sanctions against Mother for her contempt,” she was required to pay $600.00 of Father's attorney fees. (Appellee's App. 3). Additionally, the trial court ordered Mother to consult with a counselor to assist her with scheduling parenting time.
[11] On August 16, 2012, Father filed a second petition to modify custody, seeking to modify both legal and physical custody. It is this petition that is the subject of this appeal. In his petition, Father alternatively sought to modify his parenting time to obtain additional time. Additionally, Father filed a motion for a change of judge, and the case was transferred to the Honorable David Dreyer in September 2012.
[12] On November 1, 2012, Mother filed a pro se petition for contempt, alleging that Father had not completed his parenting classes and had failed to give C.R. his prescribed medication. That same day, Mother also filed a pro se “emergency” petition to modify custody. (App.39). In her petition, Mother asserted that she was concerned for C.R.'s health and well-being while with Father, and she sought to have his overnight parenting time temporarily withheld.
[13] On November 5, 2012, Father filed a petition for contempt and a motion for a DRCB evaluation. The trial court approved the evaluation motion and ordered the parties to participate in the DRCB evaluation.
[14] On December 14, 2012, Father filed another petition for contempt, asserting that Mother had refused to allow Father to have his holiday parenting time.
[15] On January 28, 2013, Mother filed another pro se “emergency” petition to modify custody. (App.43). Mother again asserted that she was concerned for C.R.'s health and well-being while with Father, and she sought to have Father's overnight parenting time temporarily withheld.
[16] In February 2013, Diane Elliott (“Elliott”) of the DRCB met with the parents for an evaluation. She filed an updated DRCB report with the trial court in March 2013.3
[17] On March 5, 2013, Father filed an additional petition for contempt, asserting that Mother had defied the trial court's orders regarding parenting time by refusing to allow Father to have his parenting time and refusing to allow him to make up his missed parenting time.
[18] On April 22, 2013, Father sought an expedited hearing on his contempt petitions because Mother was still denying parenting time to him. The trial court then held a hearing on May 23, 2013. On June 10, 2013, the trial court issued an order, finding Mother “in contempt for unjustified and unexplained denial of parenting time on repeated occasions, totaling at least 38 overnight visits and 58 evening hours.” (App.50). The trial court also sanctioned Mother by ordering her to spend ten days in jail but held that commitment in abeyance pending the next hearing on October 4, 2013.
[19] Thereafter, on June 19, 2013, Mother filed a motion for the appointment of a guardian ad litem, which the trial court denied.
[20] On August 8, 2013, Father filed yet another petition for contempt, asserting that Mother had continued to defy the trial court's orders regarding parenting time. Father asserted that Mother had interfered with his parenting time, including “[m]aking unsubstantiated allegations of neglect to CPS [.]” (App.61). Father also requested that the trial court grant him sole legal and physical custody because “Mother's interference with Father's parenting time [wa]s a substantial change in custody as it interfere[d] and [wa]s a detriment to the Father-child relationship[ .]” (App.61) (citing In re Paternity of J. T., 988 N.E.2d 398 (Ind.Ct.App.2013) ).
[21] On October 4, 2013, the trial court held a hearing and issued an order on the pending contempt petitions and on Mother's compliance with the trial court's June 10, 2013 order regarding parenting time. The trial court determined that Father was entitled to make up parenting time for two overnight visits. The trial court also took Father's custody modification request and any contempt sanctions under advisement. Additionally, the trial court, by separate order, ordered the parties to go back to DRCB on December 1, 2013, so that the DRCB report on custody and parenting time could be updated. Father attended the scheduled DRCB evaluation, but Mother did not.
[22] On December 18, 2013, Mother, by counsel, filed a petition for contempt, alleging that Father had failed to return C.R.'s...
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