In Re The Marriage Of Julie C.

• Decision Date: 30 March 2010
• Docket Number: No. 49A05-0909-CV-523.,49A05-0909-CV-523.
• Citation: Julie C. v. Andrew C. (In re Marriage of Julie C.), 924 N.E.2d 1249 (Ind. App. 2010)
• Parties: In re The Marriage of JULIE C., Appellant-Respondent,v.ANDREW C., Appellee-Petitioner.
• Court: Indiana Appellate Court

924 N.E.2d 1249

In re The Marriage of JULIE C., Appellant-Respondent,v.ANDREW C., Appellee-Petitioner.

No. 49A05-0909-CV-523.

Court of Appeals of Indiana.

March 30, 2010.

COPYRIGHT MATERIAL OMITTED

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

OPINION

VAIDIK, Judge.

Case Summary

Julie C. (“Mother”) and Andrew C. (“Father”) had two children together before divorcing in 2006. The dissolution decree provided that the parties would share joint legal custody of the children with Mother having primary physical custody. In 2008 Father filed a motion to modify physical custody or, in the alternative, parenting time. Mother filed a response along with a cross-petition for modification of legal custody and child support and a request that the trial court find Father in contempt for failing to pay child support. Mother appeals the trial court's order entered following a hearing. We find that: (1) when modifying custody, the change in circumstances required by Indiana Code section 31-17-2-21 need not be so decisive in nature as to make a change in custody necessary for the welfare of the child and (2) when determining whether to modify joint legal custody, a trial court must consider whether there has been a substantial change in one or more of the factors listed in Indiana Code section 31-17-2-15 as well as Indiana Code section 31-17-2-8. Further finding that the trial court here did not abuse its discretion by making a de facto modification to joint physical custody, declining to modify joint legal custody to sole legal custody in Mother, declining to find Father in contempt for failing to pay child support, calculating Father's child support obligation, and declining to award partial or full attorney's fees to Mother, we affirm.

Facts and Procedural History

The evidence most favorable to the trial court's judgment reveals that Mother and Father married in 1995 and have two children together: J.C., born August 21, 2002, and C.C., born October 15, 2004. When Mother and Father later divorced in 2006, the dissolution decree, agreed to by the parties, provided that they would share joint legal custody of J.C. and C.C. with Mother having primary physical custody. The decree further provided that Father would exercise parenting time every Monday, Wednesday, and Friday from 4:30 p.m. to 7:15 p.m. and every other weekend. It also provided: “Once [C.C.] turns the age of three (3), the parties agree to parenting time for the Father of one night a week and every other weekend with the children pursuant to the Indiana Parenting Time Guidelines.” Appellant's App. p. 15. When C.C. turned three, Mother and Father did not change Father's parenting time because of Mother's work schedule and because Father did not want a span of six days at a time when he would not see J.C. and C.C.

In September 2008 Father filed a Verified Motion for Modification of Physical Custody or in the Alternative for Modification of Parenting Time, which requested increasing the amount of time he was permitted to spend with J.C. and C.C. Specifically, Father proposed having J.C. and C.C. each Monday through Wednesday morning and every other weekend, including Sunday nights. Mother then filed a response, a Cross-Petition for Modification of Legal ¹ Custody and Child Support, and a Verified Affidavit for Contempt for Father's failure to pay child support. In October 2008, when C.C. was just shy of her fourth birthday, Mother sent Father an email informing him that he was to begin exercising his parenting time one night a week and every other weekend, with the exception of the children attending church with Mother on Sunday mornings. Tr. p. 30-31.

Upon request of the trial court, Domestic Relations Counseling Bureau (“DRCB”) evaluator Robin Leffler-Pannell prepared a report. Regarding J.C.'s and C.C.'s interaction and interrelationship with Father's fiancée Nicole W., the DRCB report states, “[Father] opined the children both love [Nicole] and engage in activities and are affectionate with her.” Appellant's App. p. 47. It further states, “[J.C.] described [Nicole] as ‘nice,’ but complained that her son ... is ‘a bully to me,’ and described [Nicole's daughter] as ‘nice.’ [J.C.] said his father and [Nicole] talk to [Nicole's son] and put him in time-out.” Id. at 46. Regarding J.C.'s wishes, the report states, “[J.C.] expressed a desire to spend more time with his father because, ‘I am always with [M]om.’ ” Id. The DRCB report recommended that Mother and Father continue to share joint legal custody and that the children continue to reside in Mother's primary care. The DRCB report also recommended that Father have greater parenting time than that stipulated by the Indiana Parenting Time Guidelines.

Nicole has joint physical custody of her two children. She has them each Monday through Wednesday morning and every other weekend. At the hearing, Nicole testified, “I think it's going to be really important for us to have all four of our kids together so they can actually bond together more and be more of a family.” Tr. p. 23. Father testified, “The very most important thing is that I would like to have fifty percent of the time with my kids and with this building of a family I think they should be part of that so they don't have to feel like outsiders to the family.” Id. at 40. DRCB evaluator Leffler-Pannell was asked, “Is it beneficial in a blended family, as a general proposition, for the children to have the same nights together? ... [W]ould it make sense for [Father]'s children to be with them on ... Monday and Tuesday so they can spend time with their step-siblings?” Id. at 7. She responded that it depends on “the children's adjustment to everything,” id., that J.C. and C.C. appeared to be well-adjusted, and that “it's generally fine to help the kids get adjusted to the blended family by having them spend time together,” id. at 8.

Nicole was asked how the four children interacted with each other:

Q And have there been any, what you would consider problems in integrating these two families?

A With [my daughter] and [C.C.], they get along very well. [C.C.] is very enamored with [my daughter] and [my daughter] really thinks that's pretty great herself. So they do well together.

Q [Your daughter] is nine and [C.C.] is what, four?

A Four. So there's no competition there.

Q Okay.

A With [J.C.] and [my son], they're eight or nine months apart, so they are the same age and, um, they're boys, so there definitely, sometimes there's sharing issues and a little bit of competition over [Father]'s attention and over my attention and that has gone back and forth over the last several months. So, there are times when they get along really well and play really great together and there are times when they don't.

Q What do you do to help them when they're having a problem?

A Well, we both have talked to each of the kids individually as well as together, all four of us. Our consistent message with them is that they don't have to be best friends, they don't have to play together all the time; we don't expect that out of them. But when they want to play together and they want to have fun together, they do so. And if one of them wants to do something on their own then the other one needs to respect that. And since we've had those conversations it's gotten a lot better. And we let them know that above all else they have to respect one another and be nice to each other. But, that doesn't necessarily mean they have to do exactly what the other one does all the time.

Id. at 17-18.

Father testified about, among other things, the health insurance he provides for J.C. and C.C., his communication with Mother, and the payments he owed Mother. Father testified that he pays $54 in weekly health insurance premiums for the children. Id. at 47. Although Mother and Father agreed that communication between them is difficult, Father testified that they “communicate best through email” and are fairly prompt in responding to each other's email messages. Id. at 61.

Father testified that he filed for bankruptcy in January 2009 and agreed he owed Mother two child support payments totaling $560. However, regarding any other fees Mother claimed he owed, he either maintained that he paid them or disagreed that they were owed. Id. at 48. When asked why he failed to pay the $560 before the hearing, he responded, “I have been doing my best to get financially squared away.” Id. at 59. He also testified that he voluntarily paid the tuition for J.C. and C.C. although the dissolution decree did not require him to do so:

A When [J.C.] started preschool, [Mother] and I shared that expense. She came to me and said I know that you make more with your new job so rather than going back to Court and redoing child support, why don't you take on the expense of [J.C.]'s tuition. I didn't feel it was right for him to come out of school halfway through the year so I agreed to that and that has just been the supposition for the last three years.

Q And that's how you ended up paying for [C.C.]'s also?

A Correct.

Id. at 43-44. When asked whether he would have caught up on support if he had stopped paying for school, Father replied, “Indeed.” Id. at 63. Father further testified that he voluntarily pays other expenses of the children:

Q All right. Aside, from the children's school tuition that you have paid voluntarily, have there been other things that you've contributed to financially for the children?

A There have been off and on times where [Mother] will say [J.C.] needs a new coat or [J.C.] needs new shoes, or [C.C.] needs new shoes; can you take care of that. Also, [J.C.]'s- kind of the standard regimen has been that I'll take care of [J.C.]'s hair. So, every six weeks [J.C.] goes in for a hair cut and I take him to that and which I have been fine doing because it's stuff for the kids.

Id. at 48.

The trial court issued its Orders Regarding Custody, Parenting Time, Support, and Contempt. Upon Mother's petition for...