Francies v. Francies

• Court: Indiana Appellate Court
• Writing for the Court: SULLIVAN.
• Citation: Francies v. Francies, 759 N.E.2d 1106 (Ind. App. 2001)
• Decision Date: 11 December 2001
• Docket Number: No. 49A02-0103-CV-175.,49A02-0103-CV-175.
• Parties: Vicky D. FRANCIES, Appellant-Petitioner, v. Joan C. FRANCIES, Appellee-Intervenor.

759 N.E.2d 1106

Vicky D. FRANCIES, Appellant-Petitioner, v. Joan C. FRANCIES, Appellee-Intervenor.

No. 49A02-0103-CV-175.

Court of Appeals of Indiana.

December 11, 2001.

Rehearing Denied January 29, 2002.

Robert E. Saint, Emswiller, Williams, Noland & Clarke, Indianapolis, IN, Attorney for Appellant.

Monty K. Woolsey, Nancy L. Cross, Miroff, Cross & Klineman, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Vicky Francies (Mother), challenges the trial court's order granting custody of her son, S.F., to Joan Francies, the child's paternal grandmother.¹ Mother presents several issues upon appeal, which we restate as:

(1) whether the trial court abused its discretion by failing to timely hold a final custody hearing following an ex parte custody order;

(2) whether the trial court abused its discretion by imposing conditions upon Mother's regaining of custody of her son;

(3) whether the trial court applied the correct standard of law in determining that Grandmother had rebutted Mother's presumptively superior right to custody of her son;

(4) whether the evidence was sufficient to rebut Mother's presumptively superior right to custody of her son;

(5) whether the trial court abused its discretion by finding Mother in contempt of court for failing to obey court orders to return several of her son's personal items.

We affirm with respect to all issues except at to the contempt determination and remand with instructions.

The facts favoring the trial court's judgment reveal that S.F. was born on December 14, 1984, to Vicky Francies and Harvey Francies, Joan's son. Vicky and Harvey lived with Joan in California until S.F. was six years old. Eventually, Vicky and Harvey moved to Indianapolis. In April 1996, Vicky and Harvey separated, and Vicky became ill and required hospitalization. At this time, Joan visited Indianapolis for three weeks to help care for Vicky and S.F. Later in 1996, Joan moved to Indianapolis. Harvey and Vicky were divorced in September 1996 and custody was granted to Vicky. In 1997, Vicky began to pay mortgage payments on the family home using funds given to her by Joan, and, in October of that year, Joan purchased the home and made payments directly. Also during 1997, Joan took over direct payment of the utility expenses. After her move to Indianapolis, Joan also became a caregiver to S.F. In the middle of 1997, Joan noticed that Vicky's relationship with S.F. became more estranged, with Vicky frequently criticizing S.F. By 1998, Vicky and S.F. had virtually no interaction except for arguing. Also in 1998, Vicky abdicated many of her parental responsibilities to Joan. Joan became S.F.'s primary caregiver, enrolling him in school, getting him ready for school in the morning, preparing meals, and taking him to doctor appointments.

During this period, Vicky began to spend more time away from home, staying out until late at night—often not returning until the next morning after S.F. had left for school. Joan knew where Vicky was going only half of the time. When Vicky was home, she spent long periods of time in her room using the internet. Sometimes Vicky was on the internet until "four and five o'clock in the morning, three or four nights a week." Transcript at 163. In 1998, Vicky also made several out-of-town trips, some of which lasted several days, without telling Joan where she was going. As a result of Vicky's behavior, her relationship with Joan began to deteriorate. By 1998, Joan was financially supporting the household.

In September 1998, Vicky met Dr. Seamus McMillan on the internet. Dr. McMillan lived near Minneapolis St. Paul, Minnesota. From November 1998 until the new year, Vicky spent much of her time in Minnesota with Dr. McMillan. On January 11, 1999, Dr. McMillan arrived in Indianapolis to help move Vicky and S.F. to Minnesota. Although Joan presented a court order restraining S.F. from being removed from Indiana, Dr. McMillan ignored it upon the reasoning that it was not binding because it had not been served on Vicky. S.F. did not want to leave with his mother, and Vicky summoned the police, who, apparently unaware of the restraining order, informed S.F. that he was required to leave with his mother. On January 14, 1999, Joan filed an emergency petition to require the return of S.F. to Indiana and for temporary custody, which the trial court granted that day. A few days later, S.F. was returned to Indianapolis.

On January 27, 1999, the trial court held an emergency custody hearing. At the conclusion of this hearing, the trial court awarded temporary custody of S.F. to Joan and set the final custody determination for hearing on April 16, 1999. After several continuances, the trial court held hearings upon the issue of final custody on June 29, October 25, November 2 and 3, and December 20, 2000. On January 18, 2001, the trial court entered findings of fact and conclusions of law awarding permanent custody of S.F. to Joan (Grandmother). Vicky (Mother) filed a Notice of Appeal on February 8, 2001.

I Emergency Custody Hearing

Mother claims several errors in the trial court's determination at the emergency hearing.² However, the trial court has since made a final custody determination, rendering Grandmother's custody of S.F. during the interim period a fait accompli. Therefore, inasmuch as Mother is attacking the validity of the trial court's emergency custody determination, we are unable to render effective relief, and the issue is moot. See Bartholomew County Hosp. v. Ryan, 440 N.E.2d 754, 757 (Ind. Ct.App.1982) (noting that this court will not reverse a lower court's determination where absolutely no change in the status quo will result), abrogated on other grounds by In the Matter of Lawrance, 579 N.E.2d 32 (Ind.1991).

Nevertheless, Mother claims that the trial court abused its discretion by failing to make a final custody determination for over two years after the emergency order granting custody of S.F. to Grandmother. Specifically, Mother claims that the delay between the emergency order and the final custody determination deprived her of due process, requiring reversal of the final custody determination. In support of her proposition, Mother cites Brown v. Brown, 463 N.E.2d 310 (Ind.Ct.App.1984), and Wilcox v. Wilcox, 635 N.E.2d 1131 (Ind.Ct. App.1994). In Brown, the trial court entered an ex parte order granting emergency custody of the children to their mother. The trial court in Brown failed to hold any hearing on the matter for over two months after the emergency order was entered. Upon appeal, this court stated that it was unreasonable for the custody hearing to follow the ex parte transfer of custody by two months. 463 N.E.2d at 313. The Brown court held that this delay, combined with other procedural irregularities,³ could well have prejudiced the father's ability to retain custody of his children, thus constituting an abuse of discretion. Id. at 314.

Similarly, in Wilcox, the trial court granted the father custody via an ex parte custody order. The trial court failed to set any hearing on the matter until the father requested that a hearing date be set. The trial court then set a hearing date that was fifteen months after the ex parte order was entered, and refused the mother's subsequent efforts to accelerate the hearing date. The mother in Wilcox was permitted only limited, supervised visitation with her children. Although recognizing that the reversal in Brown was due to the cumulative effect of three procedural errors, the Wilcox court held that the delay of fifteen months severely prejudiced the mother's right to a hearing on custody and reversed. 635 N.E.2d at 1137.

The Wilcox court noted that an ex parte order is an extreme remedy which is intended to be temporary in nature. Id. Although a trial court may enter an ex parte order for the protection of a child's welfare, the court is "required by statute to hold a prompt hearing—with notice and an opportunity to be heard—on the custody issue" in order to protect the relationship between the parent and a child. Wilcox, 635 N.E.2d at 1137; Ind.Code § 31-17-2-6 (Burns Code Ed. Repl. 1997).

In the case before us, the very day the emergency order was entered, the trial court set a hearing which was held only thirteen days later. At this hearing, where Mother was represented by counsel, the trial court heard testimony and determined that S.F. should remain in Grandmother's custody. Immediately before the hearing, the trial court also conducted an in-depth in camera interview of S.F. Thus, the present case is clearly distinguishable from the situations in Brown and Wilcox, where there was a considerable delay between the ex parte order and a hearing of any kind. More importantly, part of the delay about which Mother now complains is attributable to her own request for a continuance and request for further hearing. See Spencer v. Spencer, 684 N.E.2d 500, 502 (Ind.Ct.App.1997) (mother's request for continuance caused part of the delay in final custody determination, supporting court's holding that mother was not denied due process by delay); Wilcox, 635 N.E.2d at 1137 (noting that delay in final custody determination was attributable to the trial court alone).

Nevertheless, Mother claims that, as in Brown, the combination of the delay and other procedural irregularities amount to an abuse of the trial court's discretion. In support of her contention, Mother refers us to several instances in which Grandmother hampered Mother's attempts to visit S.F. These instances, however, have little to do with procedural errors by the trial court.⁴ In fact, the only reference Mother makes to the actions of the trial court is that the court apparently failed to address one of her petitions for visitation. Moreover, the trial court, in its findings of fact, noted that Mother voluntarily cancelled all six weeks of her summer visitation with S.F. in 1999, and this finding is...