In re Marriage of Toney, 06A05-1503-DR-121

Case DateMarch 09, 2016
CourtCourt of Appeals of Indiana

In Re: The Marriage of: Christine Toney, Appellant-Petitioner,

Edward Thomas, Appellee-Respondent.

No. 06A05-1503-DR-121

Court of Appeals of Indiana

March 9, 2016


Appeal from the Boone Superior Court The Honorable Matthew C. Kincaid, Judge Cause No. 06D01-0910-DR-724

Attorney for Appellant Kimberly A. Jackson Indianapolis, Indiana

Attorney for Appellee Julie A. Camden Camden & Meridew, P.C. Fishers, Indiana




[1] Appellant-Petitioner, C.T. (Mother), appeals the trial court's Order modifying physical custody of her minor child, G.T., (Child), in favor of Appellee-Respondent, E.T. (Father).

[2] We affirm.


[3] Mother raises four issues on appeal, which we restate as follows:

(1)Whether the trial court abused its discretion in denying Mother's motion for continuance; (2)Whether the trial court abused its discretion in admitting certain evidence (3)Whether the trial court abused its discretion in admitting hearsay evidence; and (4)Whether the trial court abused its discretion by modifying Mother's physical custody of the Child


[4] Mother and Father were married on September 29, 2006. On September 24, 2007, the couple welcomed the Child. Subsequently, the parties divorced in January 2010, and on January 19, 2010, pursuant to a property and child settlement agreement (Agreement), the parties agreed that Father and Mother would share joint legal custody of the Child, with Mother having primary physical custody. Father would exercise parenting time from 6:00 p.m. Wednesday until 6:00 p.m. Thursday, and every other Saturday from 6:00 p.m. until 6:00 p.m. Sunday. Holiday parenting time was governed by the Indiana Parenting Time Guidelines (Guidelines). Additionally, parties were required to comply with the provisions of Indiana Code section 31-1.7-2.2-1 requiring notice prior to any intended move.

[5] Both parties remarried - in September 2010, Mother married M.T., and in April 2014, Father married E.T. In July 2011, M.T. was arrested and charged with domestic battery, a Class A misdemeanor, for hitting Mother. The probable cause affidavit indicated that the domestic violence was not an isolated incident and that M.T. had battered Mother on at least five prior occasions. On January 4, 2012, M.T.'s case was dismissed but was reopened on January 27, 2012, under a different cause number. On October 3, 2012, the trial court conducted M.T.'s bench trial, finding M.T. guilty as charged. M.T. was sentenced to 180 days in Boone County Jail, with 176 days suspended to probation. On April 11, 2014, Mother and M.T. divorced.

[6] On July 31, 2014, Father filed a Verified Petition to Modify Custody and Child Support. On February 12, 2015, the trial court held the modification hearing. Father introduced evidence that after the divorce was finalized, Mother moved five times causing the Child to be enrolled in six different schools in a span of five years. Father also stated that Mother had failed to consult him in the school changes. Additionally, each time Mother moved, Father relocated to be closer to the Child. Father noted that he incurred great expense with Mother's relocations. With regard to parenting time, Father stated that Mother had significantly increased his parenting time in 2013 and 2014; however, following a disagreement in May 2014 regarding the Child's summertime activities, Father voluntarily reduced his parenting time to that set forth in the Agreement. During the course of the hearing, Father requested primary physical and sole legal custody of the Child or, in the alternative, to re-affirmed joint physical and legal custody with the exception that the Child be enrolled in the Avon School District where he resided. In turn, Mother requested re-affirmance of the current custody arrangement with the Child remaining in the Zionsville School District.

[7] Father stated that he and wife, E.T., were expecting a child and that the Child was excited about having a younger sister. Father indicated that unpleasant interactions between Mother and E.T. occurred in front of the Child, thus, causing distress to the Child and E.T. Additionally, Father claimed that Mother often sent profanity-filled texts and emails to E.T. Additionally, Father claimed that he was troubled by the Child wetting the bed, and expressing fear at night while visiting with them. The Child was not exhibiting such behavior at Mother's home. Father claimed that he had approached Mother multiple times about enrolling the Child in counseling, but Mother was not in favor of it. Despite Mother's delays, Father placed the Child in counseling sessions. Father stated that the counselor treated the Child for anxiety as a result of numerous changes occurring in Father's life, including his marriage to E.T. and the birth of his second child due in May 2015.

[8] Father also claimed that Mother abused alcohol. Specifically, Father stated that on one occasion, he had to make an unplanned trip to the airport to pick up the Child since Mother was too intoxicated to drive. In addition, Father sought to impeach Mother's credibility by introducing testimony of M.W., Mother's college friend, to testify that Mother had confided in her about the domestic violence that Mother suffered during her marriage to M.T. According to M.W., Mother had indicated that domestic violence included M.T. hitting her, throwing her up against walls like a ragdoll, and sodomizing her with a sex toy. M.W. testified that on at least two occasions, Mother had fled to her house after being battered by M.T. M.W. also claimed that M.T. called the Child, who is biracial, derogatory racial names.

[9] In response to Father's allegations, Mother denied that there were multiple incidents of abuse by M.T. Mother admitted that she had sent foul messages to E.T.; however, she had apologized to E.T. for her behavior. With regard to the Child's counseling, Mother indicated that she had not participated in any of the sessions, but had discussed the sessions with the Child. With regard to being intoxicated on her flight back to Indianapolis, Mother stated that she only drank a glass of wine on her flight, and the reason she called Father to pick up the Child from the airport was because she was headed home to argue with M.T. about getting a divorce. Mother asked the court to maintain the current custody arrangement with the Child remaining in the Zionsville School District.

[10] At the close of the evidence, the trial court took the matter under advisement. On February 18, 2015, the trial court issued its findings of fact and conclusions thereon granting Father sole legal and physical custody of the Child with Mother to have parenting time according to the Indiana Parenting Time Guidelines. [11] Mother now appeals. Additional information will be provided as necessary.


I. Motion to Continue

[12] Mother first argues that the trial court abused its discretion in denying her motion to continue. Specifically, Mother contends that the trial court's denial of her continuance request was based on Father's non-compliance with the discovery of Exhibits on which he relied at the modification hearing. As such, Mother claims that she was subjected to unfair surprises at trial.

[13] In resolving this issue, we initially note that the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court. Litherland v. McDonnell, 796 N.E.2d 1237, 1240 (Ind.Ct.App. 2003), trans. denied. We will reverse the trial court only for an abuse of that discretion. Id. "An abuse of discretion may be found on the denial of a motion for a continuance when the moving party has shown good cause for granting the motion." Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 619 (Ind.Ct.App. 2006), trans. denied; see Trial Rule 53.5. A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect of the facts or the reasonable and probable deductions which may be drawn therefrom. Hess v. Hess, 679 N.E.2d 153, 154 (Ind.Ct.App. 1997). If good cause is shown for granting the motion, denial of a continuance will be deemed to be an abuse of discretion. Id. No abuse of discretion will be found when the moving party has not shown that he was prejudiced by the denial. Litherland, 796 N.E.2d at 1240.

[14] "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request was denied." J.P. v. G. M., 14 N.E.3d 786, 790 (Ind.Ct.App. 2014).

[15] The record shows that on January 2, 2015, Mother submitted her first set of interrogatories and requests for production. On January 21, 2015, Father served his first interrogatories and requests for production on Mother. On February 3, 2015, Father made some responses to Mother's requests, but failed to submit any exhibits that he would present at trial. On the same day, Father filed a motion to reduce the time Mother had to respond to his discovery requests. On February 6, 2015, the trial court denied Father's motion. Because Father had failed to submit any exhibits, on February 10, 2015, Mother filed a motion to continue the modification hearing set for February 12, 2015. Mother's request was denied and the matter proceeded to trial. At the modification hearing, Father introduced eight Exhibits, A through H[1] (A-H). Mother maintains that she "endured one unfair surprise after another when Father introduced eight trial exhibits which he never bothered to show Mother prior to trial . . . ." (Appellant's Br. p. 17). Mother argues that Father's submission of Exhibits A-H was in bad faith,...

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