Kicken v. Kicken

• Decision Date: 14 November 2003
• Docket Number: No. 78A01-0301-CV-22.,78A01-0301-CV-22.
• Citation: 798 N.E.2d 529
• Parties: Gary KICKEN, Appellant-Petitioner, v. Michelle KICKEN, Appellee-Respondent.
• Court: Indiana Appellate Court

798 N.E.2d 529

Gary KICKEN, Appellant-Petitioner, v. Michelle KICKEN, Appellee-Respondent.

No. 78A01-0301-CV-22.

Court of Appeals of Indiana.

November 14, 2003.

Alison T. Frazier, Eckert Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.

Luther T. Garcia, Esq., Indianapolis, IN, Attorney for Appellee.

OPINION

FRIEDLANDER, Judge.

Gary Kicken (Father) challenges the trial court's December 18, 2002 order (the December Order) regarding his visitation of his two minor children, K.R.K. and K.C.K. The sole issue on review is, did the trial court demonstrate actual bias towards Father and abuse its discretion by not finding Michelle Kicken (Mother) in contempt of a previous court order?

We affirm.

The facts most favorable to the December Order demonstrate that Father and Mother's marriage was dissolved in February 2000. The trial court awarded Mother and Father joint custody of the children, with Mother having primary physical custody.¹ Pursuant to the settlement agreement incorporated into the dissolution decree, Father was to have liberal and reasonable visitation. If a disagreement arose, however, visitation automatically reverted to the Switzerland County Visitation Guidelines (Switzerland Guidelines), Switzerland County being the Indiana County where Mother lived at the time of the dissolution. At some point after the dissolution's entry, the parties reverted to the Switzerland Guidelines.

Mother subsequently moved to Dayton, Ohio, approximately 110 miles from Father's home. On Father's motion, the trial court reviewed the current visitation provision, and on February 23, 2001, issued a revised visitation order finding the geographic change in Mother's residence combined with Father's work schedule as a pilot made the Switzerland Guidelines impractical. The trial court ordered the Indiana Parenting Time Guidelines (Indiana Guidelines) be followed, with the exception that Father could select one seventy-two-hour period every fourteen days to visit with his daughters, in lieu of one evening per week and alternating weekends as provided in the Indiana Guidelines. The seventy-two hour visitation schedule was possible because at the time of the revised order, Mother homeschooled both children.

On January 28, 2002, Father filed an Affidavit for Contempt alleging Mother had violated terms of the February 23, 2001 order by denying Father visitation. At the hearing on Father's contempt citation, Mother and Father presented detailed accounts of the other's alleged noncompliance with the Indiana Guidelines and violation of visitation orders.² Thereafter, the trial court issued a June 13, 2002 order, finding Mother in contempt. The order allowed Mother to purge her contempt by permitting Father an additional ten days of visitation over the children's summer break in 2002. Additionally, Mother was ordered to pay attorney fees of $500.

Shortly thereafter, Mother filed a Motion to Correct Error, a Petition to Modify, and a Motion for Change of Judge. Judge Hoying was selected as special judge and a hearing was set on the pending motions. Before the hearing, Father filed three Affidavits for Contempt Citations and a Motion for Emergency Hearing, and Mother filed two Affidavits for Contempt Citations and a Motion for Emergency Order.

A hearing on all pending matters occurred December 11, 2002. The trial court interviewed both minor children in camera and then heard testimony from Mother and Father. Before the conclusion of Father's testimony, the trial court informed the parties:

Well I hate to tell you people this, but I already know what I'm going to do so you either, can either keep plugging away here but I know what I am going to do and I don't see where much is going to change my mind.

Transcript at 42. The trial court then lectured both parents on its disapproval of their past practices, and admonished them to adjust their attitudes and refocus on their children. The trial court also informed the parties that even though previous orders by the trial court (Judge Todd) had not worked, "That history changes today." Transcript at 60. The trial court spent the remainder of the hearing attempting to craft a workable visitation schedule for Mother and Father and to impress upon them the necessity to put aside their differences for the benefit of their children. Father did not object to the trial court's limitation of his testimony.

The December Order resulting from the hearing stated that the Indiana Guidelines would continue to govern visitation with the exception that Father could select two weekends out of every four for visitation, regardless of whether they were consecutive, in order to accommodate his work schedule. In addition, the trial court ordered that visitation exchanges were to occur at the homes of the parties, that Father should have phone contact with the children each mid-week at approximately 7 p.m., that communication between Mother and Father should be by phone and not by letter, and that Mother was to provide copies of family photographs and videos to Father at his expense. The trial court found neither party in contempt.

Father appeals the trial court's December Order. Specifically, Father contends that the trial court demonstrated actual bias towards him and deprived him of his due process rights when it limited the presentation of his contempt case against Mother.

First, we stress that our review of visitation and custody modifications is for an abuse of discretion, with a "preference for granting latitude and deference to our trial judges in family law matters." In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind.1993). We set aside judgments only when they are clearly erroneous, and will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment. Id. at 179 (citing Ind. Trial Rule 52(A)).

The reason for this deference to trial courts was explained in Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965) (footnote omitted):

While we are not able to say the trial judge could not have found otherwise than he did upon the evidence introduced below, this Court as a court of review has heretofore held by a long line of decisions that we are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence, or that he should have found its preponderance or the inferences therefrom to be different from what he did.

Id. Therefore, "[o]n appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal." Id. (citations omitted). Further, the law presumes that a judge is not biased or prejudiced in the matters that come before the court. Flowers v. State, 738 N.E.2d 1051 (Ind.2000), reh'g denied. A court's judgment will not be reversed unless the record shows actual bias and prejudice against the petitioner. Id. To succeed on a bias claim the petitioner must establish that the judge's actions crossed the bounds of impartiality and actually prejudiced the petitioner's case. Id.

Finally, a determination of whether a party is in contempt of court is a matter committed to the trial court's sound discretion and we will reverse a trial court's decision in that regard only for an abuse of discretion. Piercey v. Piercey, 727 N.E.2d 26 (Ind.Ct.App.2000). An abuse of discretion occurs when the decision is against the logic and effect of the facts and circumstances before the court or is contrary to law. Id. When reviewing a trial court's contempt determination, we will neither reweigh evidence nor judge witness credibility. Id. "`Our review is limited to considering the evidence and reasonable inferences drawn therefrom that support the trial court's judgment. Unless after a review of the entire record we have a firm and definite belief a mistake has been made by the trial court, the trial court's judgment will be affirmed.'" Id. at 31-32 (quoting In re Marriage of Glendenning, 684 N.E.2d 1175, 1179 (Ind. Ct.App.1997)). To hold a party in contempt for violating a court order, the trial court must find that the party acted with "willful disobedience." Piercey v. Piercey, 727 N.E.2d at 32.

In the instant case, Father contends that the trial court demonstrated actual bias towards him through its statement, "Well I hate to tell you people this. . . ." Transcript at 42. Our review of the record, however, does not reveal bias against Father on the part of the judge that presided over this hearing. Father attempts to...