In re the Paternity of A.S.

• Decision Date: 24 May 2011
• Docket Number: No. 82A01–1006–JP–291.,82A01–1006–JP–291.
• Citation: 948 N.E.2d 380
• Parties: In re the PATERNITY OF A.S.,B.M.S., Appellant–Respondent,v.E.M., Appellee–Petitioner.
• Court: Indiana Appellate Court

948 N.E.2d 380

In re the PATERNITY OF A.S.,B.M.S., Appellant–Respondent,

v.E.M., Appellee–Petitioner.

No. 82A01–1006–JP–291.

Court of Appeals of Indiana.

May 24, 2011.

Craig Goedde, Goedde Law Office, P.C., Evansville, IN, Attorney for Appellant.Jean M. Blanton, Ziemer, Stayman, Weitzel & Shoulders, Evansville, IN, Attorney for Appellee.

OPINION

CRONE, Judge.

Case Summary

B.S. (“Father”) and E.M. (“Mother”) have one daughter, A.S. Father lives in Indiana, and Mother lives in Missouri. In December 2008, the parents agreed to divide parenting time equally, with A.S. alternating between her parents' homes on a weekly basis. After an exchange in April 2009, Mother noticed that A.S. had three bruises on her leg that Mother thought resembled a handprint. Thereafter, Mother refused to allow Father to exercise his parenting time. As a result, both parties petitioned the court for primary custody of A.S.

Several lengthy hearings were held. In addition to the issue of abuse allegations, the evidence outlined numerous disputes that the parents had had in regard to A.S.'s care. Several exchanges were contentious, as were communications between the parents. Father began recording telephone conversations in violation of the initial custody order. After the conversations were over, Father would rant about Mother and her family on the recordings. Two of these recordings were admitted over Father's objection that the parts that Mother did not hear were not relevant. Ultimately, the trial court gave primary custody to Mother and gave Father parenting time every other weekend.

On appeal, Father argues that the trial court abused its discretion by admitting the recordings, granting primary custody to Mother, and failing to sanction Mother for interfering with his parenting time. We conclude that the recordings, including the portions that Mother did not hear, were relevant to Father's attitude toward co-parenting. We also conclude that the trial court did not abuse its discretion by giving Mother primary custody because (1) there was overwhelming evidence that the parents cannot effectively co-parent; (2) the record supports the trial court's conclusion that Father was less willing to cooperate than Mother; and (3) the record supports the court's conclusion that A.S. would benefit from more time in Missouri because she could participate in educational programs on a consistent basis. Finally, we conclude that the trial court did not abuse its discretion by not finding Mother in contempt or ordering her to pay attorney fees because Father also violated court orders. However, Mother advances no reason why Father should not receive make-up parenting time. Therefore, we remand for the trial court to address the issue of make-up parenting time, but affirm in all other respects.

Facts and Procedural History

On June 18, 2008, Mother filed a petition to establish paternity of A.S., who was born on August 27, 2007. Father filed a cross-petition to establish paternity and custody. On July 31, 2008, Father admitted paternity of A.S. Mother was given temporary custody, and Father received parenting time every other weekend. On December 22, 2008, the parties agreed to joint legal custody, with A.S. staying in each parent's care for a week at a time. As Mother lived in Eureka, Missouri, and Father lived in Evansville, Indiana, the parties agreed to make the weekly exchanges at a McDonald's in Mount Vernon, Illinois. The trial court issued an order incorporating the agreement and also ordered the parties to refrain from recording conversations.

On April 26, 2009, Father brought A.S. to Mount Vernon for the exchange. After the exchange, Mother noticed that A.S. had three bruises on her leg. Mother thought that the bruises resembled a hand print, and she became concerned that A.S. had been abused. On April 27, 2009, Mother took A.S. to Dr. Ted Green for her regularly scheduled wellness check. Mother showed the bruises to Dr. Green, but he could not definitively say that they had resulted from abuse.

On April 28, 2009, Mother filed a petition for a protective order in the Family Court of St. Louis County, Missouri, and she obtained a temporary order. However, Father was never served, and the record does not reflect that a hearing was held. Nevertheless, Mother told Father that she would not bring A.S. to Mount Vernon for the next exchange. When Father asked for an explanation, Mother would tell him only that “Missouri has jurisdiction.” Tr. at 303. Mother offered to allow Father to visit A.S. in Missouri with her supervision; Father, who did not understand Mother's cryptic claim that Missouri had jurisdiction and was suspicious of her motives, declined to travel to Missouri.

On May 20, 2009, Father filed a motion titled “Emergency Petition for Custody or in the Alternative, Parenting Time and Order to Appear” in Vanderburgh Superior Court. Appellant's App. at 32. At a hearing on June 11, 2009, Mother filed a motion titled “Mother's Verified Petition to: (A) Modify Custody; (B) to Restrict Father's Parenting Time and Require Parenting Time to be Supervised; and (C) to Establish a Parenting Time Schedule for Father.” Id. at 36. At this hearing, Father learned for the first time that Mother had been withholding parenting time because she believed that Father had abused A.S. The court ordered Father's parenting time to resume on June 21, 2009, and to be supervised by his parents.

While Mother asserts that she made a report to Vanderburgh County Department of Child Services (“VCDCS”) prior to the June 11 hearing, VCDCS has no record of any contact with Mother until July 9, 2009. A caseworker interviewed Father, and a counterpart in Missouri interviewed Mother. The caseworker also reviewed Dr. Green's records and the photographs of bruises. The caseworker concluded that the bruises “appeared as though they were normal play injuries of a toddler” and classified Mother's allegations as unsubstantiated. Respondent's Ex. E. The caseworker completed her report on July 31, 2009.

A contested hearing on custody issues was set for January 22, 2010, and was continued on February 26, March 5, March 11, and March 12. The January 22 hearing was not recorded due to an equipment malfunction; therefore, the caseworker's testimony and a portion of Mother's testimony are not included in the record before us. The parties have different recollections of what was said at that hearing, and each party has filed a motion to certify a statement of evidence, but to our knowledge, the trial court has not ruled on those motions.

The remainder of the transcript makes it clear that the effort to co-parent A.S. was fraught with conflict. The parents sought co-parenting counseling after the December 2008 custody order was issued, but that did little to reduce the level of hostility between the parents. The parents had difficulty agreeing on a time to schedule the counseling sessions. In addition, Mother claimed that she had to beg Father to tell her where the counseling would take place. Father claimed that he had attempted to relay that information multiple times, but Mother had hung up on him. Ultimately, the parents attended only three sessions together. The counselor interrupted one of the sessions to tell Father privately to stop “nit-pick[ing]” Mother. Tr. at 420. Even after counseling, the parents were unable to agree on a large variety of issues relating to A.S.'s care, including whether she should be tested and take medication for allergies, whether she should go to a dentist in Missouri or Indiana, how warm it should be before she stops wearing a winter coat, how often her hair should be cut, and whether she should be allowed to take a backpack back and forth between the parents' houses.

Mother's refusal to allow Father to see A.S. and to provide an explanation for her behavior appears to have deeply undermined Father's trust. Father began to record telephone conversations in violation of the court's order. At the conclusion of the calls, Father would continue the recording as he ranted about Mother and her family members. Two of the recordings were admitted into evidence over Father's objection that the parts of the recordings that Mother did not hear were not relevant.

Mother wrote Father several detailed letters about A.S.'s progress and inviting his input on a variety of issues. Father rarely responded to these letters because he believed that Mother was not sincerely interested in his input, but merely wanted to emphasize that A.S. was with her instead of him; however, Father continued to ignore many of Mother's letters even after his parenting time resumed. Father began documenting any bruises, scrapes, or injuries that A.S. arrived with or sustained while in his care. This included taking partially clothed pictures of A.S. in the bathroom of the McDonald's where the exchanges were made.

Several exchanges were problematic. In April 2009, Mother wrote Father to tell him that she would not be able to be present for the exchange, and she asked him to make the exchange with her parents. However, she later called Father and told him that she would be present. When Father arrived at the McDonald's in Mount Vernon, he discovered that Mother had sent family members to pick up A.S. and they had contacted the Mount Vernon police. Father testified that he showed the officer the custody order, and the officer then decided that Father was not required to make the exchange. Mother then left work and came to Mount Vernon to pick up A.S. Father refused to believe that Mother had been at work because she arrived wearing sweat pants.

On April 19, 2009, Mother took A.S. to Mount Vernon at 2:00, which was the time that they usually exchanged A.S. Father arrived at 7:00 because he believed that they had agreed to that time and that time was also consistent with the Parenting Time Guidelines. As a result, both parties had to drive to Mount Vernon again the following...