J.B. v. S.W. (In re G.G.B.W.), Court of Appeals Case No. 49A04-1611-JP-2474

• Decision Date: 26 July 2017
• Docket Number: Court of Appeals Case No. 49A04-1611-JP-2474
• Citation: 80 N.E.3d 264
• Parties: In Re the Paternity of: G.G.B.W. a Minor Child, J.B., Appellant-Petitioner, v. S.W., Appellee-Respondent.
• Court: Indiana Appellate Court

80 N.E.3d 264

In Re the Paternity of: G.G.B.W. a Minor Child, J.B., Appellant-Petitioner,

v.S.W., Appellee-Respondent.

Court of Appeals Case No. 49A04-1611-JP-2474

Court of Appeals of Indiana.

July 26, 2017

Attorneys for Appellant: John R. Maley, Leah L. Seigel, Barnes & Thornburg, LLP, Indianapolis, Indiana.

Attorneys for Appellee: Darryn L. Duchon, Indianapolis, Indiana, Monty K. Woolsey, Andrew R. Bloch, Cross, Pennamped, Woolsey & Glazier, P.C., Indianapolis, Indiana.

Bailey, Judge.

Case Summary

[1] J.B. ("Father") and S.W. ("Mother") are the parents of one daughter, G.G.B.W. ("Child"). In 2015, Father petitioned to modify legal custody of Child, and subsequently filed a contempt petition and motion for rule to show cause in which Father alleged that Mother was in violation of a paternity decree. The trial court denied Father's petitions and motion, and ordered Father to pay a portion of Mother's attorney fees. Father now appeals.

[2] We affirm in part, reverse in part, and remand.

Issues

[3] Father presents the following restated issues:

I. Whether the trial court articulated an erroneous interpretation of the Decree and thereby abused its discretion in failing to find Mother in contempt;

II. Whether the trial court abused its discretion in denying Father's petition to modify legal custody; and

III. Whether the trial court abused its discretion in ordering Father to pay a portion of Mother's attorney fees.

Facts and Procedural History

[4] Father and Mother had a brief relationship while married to other spouses, and Child was born in 2007. Mother remained married and Father subsequently remarried. In 2011, Father and Mother entered an Agreed Decree of Paternity concerning Child (the "Decree") that the trial court approved and incorporated into an order. The Decree contains the following provision relating to legal custody: "The parties shall share joint legal custody of [Child] ... which shall be defined as follows: Mother must seek Father's input prior to Mother making any major medical, religious, or educational decisions for [Child]." Appellant's App. Vol. II at 47-48. The Decree also includes the following provision relating to vaccinations

: "If the child attends a school that requires vaccinations for enrollment, and the child will be denied enrollment unless she receives the vaccinations, then the child will be given the required vaccinations for enrollment." Appellant's App. Vol. II at 51.

[5] Child was not vaccinated following her birth. At the time of the Decree, Child attended a Montessori school that did not require vaccinations

. The following year, upon Father's request, Child was to attend kindergarten at a public school. The school required that its students be vaccinated but, pursuant to Indiana Code section 20-34-3-2, the school allowed an unvaccinated student to attend if a parent executed a form claiming a religious objection to immunization. Mother sought Father's consent to sign the form, but Father did not consent. Mother then signed the form, and Child began attending the school unvaccinated. In subsequent years, Mother submitted the form without consulting Father, and Child has continued to attend the public school.

[6] In early 2015, when Father learned that Child would be traveling on an extended European Disney Cruise, Father expressed concern to Mother about Child remaining unvaccinated. On May 18, 2015, Father petitioned to modify legal custody of Child as to medical decisions only, alleging a substantial change in circumstances in that Child had not received any vaccinations

since birth. The next month, Father learned that his wife was pregnant, and on July 29, 2015, Father filed a contempt petition alleging that Mother was violating the Decree because she did not "vaccinat[e] [Child] pursuant to" the Decree and because she "falsely advised the school of a religious affiliation to avoid vaccinating the child." Appellant's App. Vol. II at 57.

[7] During the pendency of Father's motion and contempt petition, Father and his wife became the parents of twins, a boy and a girl. The daughter was born healthy and could receive vaccinations

on schedule, but the son could not be vaccinated due to a serious heart condition. Father was advised by a doctor that it was unsafe for the newborns to be around anyone unvaccinated, including Child. Acting on that advice, Father stopped exercising overnight parenting time and would not permit Child to physically meet the infants.

[8] On March 3, 2016, Father filed a motion for rule to show cause. In the motion, Father asserted generally the same grounds for contempt contained in his petition and alleged that Child's health was at risk due to being unvaccinated. Father also alleged that he was unable to exercise overnight parenting time with Child because Child was unvaccinated and posed a risk to his infants.

[9] The trial court held a hearing in May and June of 2016. At the hearing, Father called his son's doctor who testified in favor of vaccinations

, and he called an Episcopalian priest who testified that the Episcopalian faith—Mother's faith—has no tenet against vaccinations. Mother called two expert witnesses who testified about the risks of vaccination and the ineffectiveness of vaccines.

[10] On October 6, 2016, the trial court denied Father's petition to modify custody, leaving the Decree unchanged. The trial court also denied Father's contempt petition and related motion for rule to show cause, reasoning that Mother complied with the Decree when she claimed a religious objection to vaccinating Child. Finally, the trial court ordered Father to contribute $10,000 toward Mother's attorney fees.

[11] This appeal ensued.

Discussion and Decision

Standard of Review

[12] Upon Mother's timely written request, the trial court entered findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). In reviewing findings made pursuant to this rule, "we first determine whether the evidence supports the findings and then whether findings support the judgment." K.I. ex rel. J.I. v. J.H. , 903 N.E.2d 453, 457 (Ind. 2009). We will "not set aside the findings or judgment unless clearly erroneous" and we give "due regard" to "the opportunity of the trial court to judge the credibility of the witnesses." Ind. Trial Rule 52(A). Findings of fact are clearly erroneous when there is no support for them in the record, either directly or by inference. Steele-Giri v. Steele , 51 N.E.3d 119, 125 (Ind. 2016). A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment. In re Adoption of O.R. , 16 N.E.3d 965, 973 (Ind. 2014). A judgment is also clearly erroneous when the trial court applies the wrong legal standard to properly found facts. In re D.J. v. Indiana Dep't of Child Servs. , 68 N.E.3d 574, 578 (Ind. 2017).

Contempt

[13] Father challenges the trial court's contempt determination, arguing that the trial court misinterpreted the Decree when it failed to hold Mother in contempt.

[14] It is soundly within the discretion of the trial court to determine whether a party is in contempt, and we review the judgment under an abuse of discretion standard. Reynolds v. Reynolds , 64 N.E.3d 829, 832 (Ind. 2016). "We will reverse a trial court's contempt findings only if there is no evidence or inferences drawn therefrom to support them." Hamilton v. Hamilton , 914 N.E.2d 747, 755 (Ind. 2009). Additionally, because the trial court denied Father's petition and motion, Father appeals from a negative judgment. See Comm'r, Dep't of Envtl. Mgmt. v. RLG, Inc. , 755 N.E.2d 556, 559 (Ind. 2001). In such circumstances, we will reverse the judgment only if it is contrary to law—where the evidence leads to but one conclusion and the trial court reached the opposite conclusion. Id. Moreover, in conducting our review, we consider the evidence in the light most favorable to the appellee. Id.

[15] To be held in contempt, a party must have willfully disobeyed a court order. City of Gary v. Major , 822 N.E.2d 165, 170 (Ind. 2005). "The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated." Id.

[16] One of Father's arguments is that the plain language of the Decree "calls for vaccinations

based on the school's requirements." Appellant's Br. at 22. Father directs us to the vaccination provision in the Decree, which reads: "If the child attends a school that requires vaccinations for enrollment, and the child will be denied enrollment unless she receives the vaccinations, then the child will be given the required vaccinations for enrollment." Appellant's App. Vol. II at 51. Father contends that this provision provides no exception. Mother responsively argues that Child was not denied enrollment because Mother submitted the religious objection form, and so because Child was not denied enrollment, the vaccination provision does not require Child's vaccination.

[17] It is important to note that this is a case of the trial court interpreting an agreement of the parties rather than an order of its own creation. "In the usual case, freedom of contract will, it is hoped, produce mutually acceptable accords, to which parties will voluntarily adhere." Voigt v. Voigt , 670 N.E.2d 1271, 1278 (Ind. 1996). There may be nuances to and purposes underlying the parties' agreement to which the trial judge may not be privy. See id. ("[T]he actual purpose lying behind any particular provision of a settlement agreement may remain forever hidden from the trial judge. Indeed, it may be quite idiosyncratic."). Indiana Code section 31-14-10-1 provides that in a paternity action, the court shall conduct a hearing to determine the issues of child support, custody, and parenting time upon finding that a man is the child's biological father. However, the court may dispense with the hearing if the mother and father file a...