Jennings v. Johnson (In re D.L.J.)
| Decision Date | 17 May 2021 |
| Docket Number | Court of Appeals Case No. 19A-JP-3045 |
| Citation | 171 N.E.3d 650 (Table) |
| Court | Indiana Appellate Court |
| Parties | In the MATTER OF the PATERNITY OF D.L.J. (Minor Child): Desiree L. Jennings, Appellant-Petitioner, v. LeeWayne Johnson, Appellee-Respondent. |
Attorney for Appellant: Jared Michel Thomas, JMT Law, LLC d/b/a Thomas Law, Evansville, Indiana
[1] Desiree Jennings ("Mother") appeals the trial court order denying her motion for unsupervised parenting time1 and finding her in contempt for failure to pay her child support obligation.
[2] We affirm in part, reverse in part, and remand with instructions.
[3] Mother raises two issues which we restate as follows:
[4] Mother and LeeWayne Johnson ("Father") are the parents of D.J. ("Child"), born April 8, 2010. Father's paternity of Child was established in 2010. Mother originally had primary physical, and sole legal, custody of Child, and Father had parenting time and was ordered to pay child support per State guidelines. In 2015, the parties were awarded joint legal and physical custody of Child.
[5] On May 19, 2016, following a hearing on Father's motion to modify custody, Father was awarded sole legal, and primary physical, custody of Child. Mother was ordered to have reduced supervised parenting time with Child due to her anger issues and inability to care for Child's general hygiene, among other reasons. Mother was also ordered to pay child support.
[6] On June 8, 2016, Mother filed a pro se motion to modify the child support order. On June 20, 2016, Mother's notice of her appeal of the May 19 custody order2 was filed in the trial court. On July 8, 2016, the trial court held a hearing on Mother's motion to modify child support; however, because Mother failed to appear at that hearing, the trial court dismissed her motion.
[7] In In re Paternity of D.J. , No. 82A01-1606-JP-1406, 2017 WL 1386197, at *3 (Ind. Ct. App. Apr. 17, 2017), a panel of this Court affirmed the trial court's custody order but held that the reduction in Mother's supervised parenting time was unsupported by the record. On June 2, 2017, on remand, the trial court increased Mother's parenting time to three one-hour supervised visits per week at the Parenting Time Center, at Mother's expense. On September 27, 2017, Mother filed a motion for temporary modification of parenting time. Following a hearing, the court took the motion under advisement and, in an order dated March 22, 2018, denied the motion.
[8] On October 4, 2018, the court conducted a hearing on, among other things, Mother's petition to modify parenting time.3 In an order dated October 9, 2018, the court denied Mother's petition and stated:
The Court will not consider relaxation of the requirement of supervised parenting time at the Parenting Time Center until such time as the Mother establishes regular visits with the child at the Parenting Time Center of at least twenty additional visits and provides written proof to the Court that she has attended no less than fifteen Dialectical Behavior Therapy
[("DBT")] group sessions.
App. at 83. In an order dated January 24, 2019, the court noted that the Parenting Time Center could apparently only accommodate one one-hour supervised visit per week for Mother. Therefore, the trial court granted a motion by Mother to change supervised parenting time to one one-hour visit per week at the Parenting Time Center and two weekly one-hour visits during Child's lunch time at Child's school.
[9] On April 18, 2019, Mother filed a Motion to Modify Visitation in which she noted that she had met all the requirements of the court's October 9, 2018, order and sought unsupervised parenting time. Mother noted that her parenting time with Child was taking place at Child's school during Child's lunch time, but the school year was soon ending. On August 19, 2019, Mother filed a petition to modify child support, and the trial court conducted a hearing on that petition, Mother's pending motion to modify parenting time, and Father's pending petition for contempt regarding child support. The hearing continued and concluded on September 9, 2019. On September 27, 2019, the trial court issued its order finding Mother in contempt for failure to pay child support, ordering Mother to pay child support arrearage, granting Mother's petition to modify child support by reducing it, and denying Mother's motion to modify parenting time. In reaching the latter decision, the trial court stated, in relevant part:
[T]he Mother has complied with the Court's Order of the 9th day of October, 2018, requiring that she have at least twenty (20) parenting time visits with the parties’ minor child at The Parenting Time Center and attend no less than fifteen (15) Dialectical Behavior Therapy
group sessions. The Mother has not utilized The Parenting Time Center since approximately December, 2018[,] and with the exception of one (l) visit with the parties’ minor child during the summer of 2019, she has not exercised parenting time with the child since her last school lunch visit with the child at the conclusion of school in May, 2019. The Mother testified that she terminated her parenting time visits at The Parenting Time Center because of the increased costs due to her being accompanied by her other children. The Mother shall resume her parenting time with the parties’ minor child at The Parenting Time Center and she shall attend such visits alone. The Mother shall resume her three (3) weekly school lunch visits with the parties’ minor child. The Mother shall have reasonable telephone contact with the parties’ minor child every other day at 7:00 p.m. or at such other time as may be agreed upon by the parties.
[10] On October 28, 2019, Mother filed a Motion to Correct Error in which she asserted that the trial court erred in continuing the supervised parenting time because: Mother had complied with the court's prior orders; Father had failed to present evidence that Child would be harmed if Mother had unsupervised visitation; and the trial court did not find that unsupervised visitation would harm Child. Mother also argued the trial court erred by finding her in contempt for failure to pay child support when she had no ability to purge herself of said contempt, citing Indiana Code Section "24-47-3-5."4 On November 25, 2019, the trial court held a hearing on Mother's motion to correct error and denied the same. This appeal ensued.
[11] First, we note that Father did not file an appellee's brief. Therefore, "we do not undertake the burden of developing appellee's arguments, and we apply a less stringent standard of review[;] that is, we may reverse if the appellant establishes prima facie error." Meisberger v. Bishop , 15 N.E.3d 653, 656 (Ind. Ct. App. 2014). Prima facie error is "error at first sight, on first appearance, or on the face of it." Universal Auto, LLC v. Murray , 149 N.E.3d 639, 642 (Ind. Ct. App. 2020) (quotation and citation omitted). However, we review questions of law de novo. Meisberger , 15 N.E.3d at 656.
[12] Mother appeals the trial court's denial of her Motion to Modify Visitation and her Motion to Correct Error.
Modification of Parenting Time
[13] Because parenting time rights are a "precious privilege that should be enjoyed by noncustodial parents," a noncustodial parent in a paternity action is generally entitled to "reasonable parenting time rights." In re Paternity of W.C. , 952 N.E.2d 810, 816 (Ind. Ct. App. 2011). However, the right of parenting time is "subordinate to the best interests of the child." Id.
[14] Indiana Code Section 31-14-14-1 outlines the parenting time rights of a noncustodial parent in a paternity action.
A trial court may modify a parenting time order "whenever modification would serve the best interests of the child." Ind. Code § 31-14-14-2. Thus, a court modifying parenting time "must make a specific finding of physical endangerment or emotional impairment before placing a restriction on the noncustodial parent's parenting time." W.C. , 952 N.E.2d at 816.
[15] In her April 18, 2019, Motion to Modify Visitation, Mother alleged there was a "substantial and continuing change in circumstances since the last order[,]" i.e., October 9, 2018. In the Matter of the Paternity of [D.L.J. ], No. 82D07-1004-JP-245 (April 18, 2019, Petitioner's Verified Motion to Modify Visitation).6 Specifically, Mother alleged that she had met all the requirements of the October 9, 2018, order regarding her parenting time, that the school year was ending so she would not be able to visit Child at school during lunch over the summer, and that continued...
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