Hanson v. Spolnik

• Decision Date: 29 August 1997
• Docket Number: No. 32A01-9703-CV-79,32A01-9703-CV-79
• Parties: Marianne Lawrence HANSON, Appellant-Respondent, v. Edward Joseph SPOLNIK, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 71

685 N.E.2d 71

Marianne Lawrence HANSON, Appellant-Respondent, v. Edward Joseph SPOLNIK, Appellee-Petitioner.

No. 32A01-9703-CV-79.

Court of Appeals of Indiana.

Aug. 29, 1997.

Transfer Denied Dec. 17, 1997.

Karl L. Mulvaney, Nana Quay-Smith, Bingham Summers Welsh & Spilman, Indianapolis, Jon D. Krahulik, Yosha Krahulik & Levy, Indianapolis, for Appellant-Respondent.

Robert E. Saint, Saint & Courter, Indianapolis, Henry C. Karlson, ¹ Indianapolis, for Appellee-Petitioner.

OPINION

BAKER, Judge.

In this highly contentious appeal, we consider whether one parent's animosity and conduct towards another may justify the modification of a joint child custody arrangement. Specifically, appellant-respondent Marianne Lawrence Hanson challenges the trial court's modification of its joint custody decree to award sole custody of the parties' minor child to appellee-petitioner Edward Joseph Spolnik, Jr. and its finding that she was in contempt for violating the court's restraining order. Marianne presents several issues for our review, which we consolidate and restate as follows: (1) whether the evidence was sufficient to support the trial court's finding that a substantial change of circumstances had occurred which justified a modification of custody; (2) whether the trial court unfairly restricted visitation with her child; (3) whether the trial court erred in awarding Edward attorney's fees; (4) whether she was erroneously held in contempt for violating the court's mutual restraining order.

FACTS ²

On March 16, 1995, Marianne's and Edward's marriage was dissolved. Pursuant to the parties' dissolution agreement, the trial court awarded them joint legal and physical custody of their four-year-old daughter, M.S. Under the terms of the agreement, Edward retained custody of M.S. for three days per week and Marianne had custody for four days per week. Additionally, all major decisions regarding M.S.'s care, including education, extracurricular activities and medical treatment, were to be made by both parents.

In June of 1995, Marianne started taking M.S. to Michelle Crane, a child psychologist with the Family Counseling Center, because she believed M.S. was anxious and confused about the divorce and the visitation schedule. During the sessions with Crane, Marianne repeatedly indicated that she desired a modification in the child custody arrangement, stating that she suspected Edward of sexually abusing M.S. and that he had a long history of "psych" treatment. After interviewing M.S., however, Crane determined that M.S. was not unduly upset by the visitation schedule and that a modification in the custody arrangement was not necessary at the present time. She did indicate that modification of the visitation schedule might be appropriate once the school year began and that she wanted to talk with Edward about his alleged inappropriate behavior. However, Edward and Crane never met.

Thereafter, on October 13, 1995, Marianne filed a petition to modify custody, claiming that Edward had violated several agreements with her regarding M.S.'s education and attendance at church, that he was completely disabled due to stress and that he improperly allowed M.S. to sleep in his bed. While the petition was pending, Marianne informed Crane that Edward had exposed himself to a boy in the bathroom at M.S.'s school and had inappropriately rubbed a medical creme on M.S.'s vagina. She also stated that M.S. had told her that Edward had allowed her to shake his penis. Record at 2677-78. As a result, Crane filed a report with the Boone County Child Protective Services. Marianne also filed a similar report with regard to the same incident. However, Child Protective Services did not substantiate the allegations and subsequently closed its file on Edward.

Tensions between the parties continued to grow throughout the pendency of the modification proceedings. For example, Marianne, in the presence of M.S., accused Edward of disrupting her class and making her cry, told him to go to Hell, indicated that he was going to get AIDS and informed M.S. that she would have to be decontaminated after Edward placed his stocking cap on her head. According to Edward, M.S. also heard Marianne repeatedly call him "Satan" and accuse him of being homosexual. Thereafter, on February 6, 1996, Edward filed a petition for a mutual restraining order, claiming that Marianne had made numerous harassing telephone calls to him with regard to the modification proceedings and requesting that the parties' communication with one another be restricted to visitation issues. The trial court granted the petition for the restraining order the next day.

Nevertheless, Edward and Marianne continued to experience difficulties in their limited communications and with the custody arrangement. In April of 1996, Edward hired a private investigator, Norman Borders, to accompany him as a witness when he exchanged M.S. at Marianne's residence because he believed Marianne "would attempt to fabricate allegations against him." R. at 227. After Edward and Borders arrived to pick-up M.S. on April 12, 1996, Marianne followed them to a local truck stop where Edward drove Borders to his car. Marianne then proceeded to photograph Borders and obtain his license plate number. Later that evening, she left the following message on Edward's answering machine:

You can play this for the Judge because I would gladly be in contempt with you. You know what, buddy? You've got big time problems. You are traumatizing that little girl, and you're going to court this week, and you'll see what's going to happen to you. And I hope you play this for Bob Saint and all your other goons, because you are in big time trouble.

R. at 2185. Over the next few days, Marianne left several other messages on Edward's answering machine, informing him that future exchanges of M.S. would occur at the truck stop. She also stated that she had contacted the police and that he and Borders would be arrested if they came on her property.

Several days later, Marianne, Edward and Borders met at the truck stop to exchange M.S. Shortly after the exchange, Marianne returned to the truck stop, saw Borders and began to follow his vehicle. In response, Borders began backing his vehicle towards Marianne's car. After blocking Marianne's car and "glaring" at her, Borders drove away. Shortly thereafter, Marianne reported the incident to the police, stating that Borders looked like the unibomber and he could have been a hit man. R. at 2295. She was subsequently informed that Borders was a private investigator.

Following the truck stop incident, Edward and Marianne exchanged M.S. in the parking lot of a local church. At the exchanges, Edward was accompanied by Borders and, pursuant to her request, Marianne was accompanied by officers from the Zionsville Police Department. During one exchange, three police officers arrived at the church shortly before Marianne. When Marianne drove into the parking lot, she stopped approximately 150 yards away, honked her horn and flashed her lights. The officers then physically removed M.S. from Edward's vehicle and placed her in Marianne's car.

On April 17, 1996, Edward filed a petition for contempt against Marianne, alleging that she violated the court's restraining order when she left the messages on his answering machine. At this time, as a result of numerous continuances requested by the parties and several changes of judge, the trial court had still not ruled on Marianne's petition to modify custody. However, the trial court proceeded with the contempt hearing on July 5, 1996, after which it found Marianne in contempt and ordered her to complete eight hours of community service, apologize to Edward and pay his attorney's fees.

Thereafter, on July 27, 1996, Edward filed an emergency petition for modification of custody and supervised visitation. Four days later, Marianne moved for reconsideration of the contempt finding. A hearing was conducted on both Edward's and Marianne's petitions for modification of custody in November, 1996. During the hearing, Edward presented evidence that, prior to the parties' divorce, Marianne's twelve-year-old daughter from a previous marriage, A.L., had inappropriately touched M.S. He then argued that Marianne had not provided adequate counseling for A.L. and had failed to ensure that M.S. was protected from any further incidents with A.L. Additionally, Edward argued that Marianne had engaged in a pattern of parental alienation with M.S. that was affecting her long-term emotional and psychological needs. In support of these arguments, Edward presented the testimony of Dr. Richard Lawlor, a child psychologist, who, after reviewing records and reports from Child Protective Services, Michelle Crane and several other counselors, indicated that Marianne had not taken appropriate action in resolving the incident between M.S. and A.L. He also indicated that Marianne's comments and allegations against Edward were directed at alienating M.S. from Edward and that Marianne's behavior endangered M.S.'s emotional and psychological development.

In response, Marianne argued that the allegations and statements she made about Edward were either true, not made in the presence of M.S., made in the heat of the moment or never occurred. She also indicated that she had obtained counseling for A.L., which A.L. had completed.

Following the hearing, the trial court entered findings of fact and conclusions of law, determining that there had been a substantial change in circumstances which justified a modification in custody. Specifically, the court determined that Marianne had engaged in a concerted effort to destroy M.S.'s relationship with Edward since the divorce. As a result, the court awarded sole physical and legal custody of M.S. to Edward. Additionally, the court denied Marianne visitation for a period of sixty days, followed by two hours of supervised visitation with M.S. every...