M.M. v. V.K.H. (In re C.C.M.)

• Decision Date: 26 December 2012
• Docket Number: No. 64A03-1205-JP-230,64A03-1205-JP-230
• Parties: IN RE THE PATERNITY OF C.C.M.: M.M., Appellant, v. V.K.H., Appellee.
• Court: Indiana Appellate Court

IN RE THE PATERNITY OF C.C.M.:

M.M., Appellant, v. V.K.H., Appellee.

No. 64A03-1205-JP-230

COURT OF APPEALS OF INDIANA

December 26, 2012

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

DEBRA LYNCH DUBOVICH

Levy & Dubovich

Highland, Indiana

APPEAL FROM THE PORTER SUPERIOR COURT

The Honorable Mary A. DeBoer, Special Judge

Cause No. 64C01-0602-JP-501

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge M.M. (Father) and V.K.H. (Mother) are the parents of a young daughter, C.M. Father appeals from the trial court's order concerning parenting time, as well as its ruling on Father's numerous petitions for rule to show cause and Mother's request for attorney fees. Father presents the following restated issues for our review:

1. Did the trial court improperly delegate the authority to modify the parenting-time schedule to a parenting-time coordinator?

2. Did the trial court abuse its discretion in declining to hold Mother in contempt?

3. Did the trial court abuse its discretion in ordering Father to pay a portion of Mother's attorney fees?

We affirm in part, reverse in part, and remand with instructions.

C.M. was born out of wedlock to Mother in September 2005. Pursuant to an agreed order entered on May 19, 2006, paternity was established in Father and Father was awarded parenting time and ordered to pay child support. Pursuant to another agreed order entered on February 22, 2007, Father's child support obligation was increased and Mother was ordered to provide Father with reasonable notice of C.M.'s medical appointments. Yet another agreed order was entered on May 12, 2009, pursuant to which Mother and Father agreed to share joint legal custody of C.M., with Mother having primary physical custody and Father receiving expanded parenting time as outlined in the order.

Despite the entry of three agreed orders, the record reveals that the relationship between Father and Mother has been highly contentious and combative throughout the entirety of the paternity proceedings. On December 15, 2009, Father filed a Petition for Modification seeking a decrease in his child support obligation and an order giving "Fatherand Mother equal decision making control concerning [C.M.'s] education, health care, religious, and extracurricular activities." Appellant's Appendix at 54. On the same date, Father filed a Petition for Rule to Show cause seeking to have Mother held in contempt for various alleged violations of the agreed orders, including denying and interfering with Father's parenting time, failing to consult Father concerning C.M.'s educational and extracurricular activities, failing to notify Father in advance of C.M.'s medical appointments, refusing to send changes of clothes with C.M. for her overnight visits with Father, and failing to return a baseball cap belonging to the child. Thereafter, Father filed six additional petitions for rule to show cause seeking to have Mother held in contempt. In these petitions, he cited many of the same issues set forth in the December 15 petition, as well as some new alleged violations.

On August 23, 2010, Mother filed a Verified Petition for Modification of Custody and Parenting Time and for Rule to Show Cause seeking sole legal custody of C.M. and requesting that Father's parenting time be reduced to that set forth in the Indiana Parenting Time Guidelines. Mother also sought to have Father held in contempt, alleging that Father had not paid child support as ordered, and that he "continue[d] to file frivolous pleadings in this case." Id. at 66. On September 14, 2010, Father filed another Petition for Modification, this time seeking "primary care" or, in the alternative, "sole custody." Id. at 69.

Due to the appointment of a custody evaluator and delays in receiving the evaluator's report, a hearing on these motions was not held until April 18, 2012. Thereafter, on April 26, 2012, the trial court issued a detailed, twenty-page order addressing issues of custody,parenting time, child support, and contempt. In the order, the trial court set a parenting-time schedule and appointed a parenting-time coordinator. The trial court's order gave the parenting-time coordinator the authority to revise the trial court's parenting-time schedule "to accommodate summer vacation, holidays, extended parenting time and extra-curricular activities." Id. at 34.

With respect to contempt matters, the trial court determined that Mother was in contempt for failing to notify Father of some of C.M.'s medical appointments and that Father was in contempt for failing to pay child support as ordered. The trial court did not impose sanctions on either contempt finding, although it did calculate Father's outstanding child support arrearage and order him to begin making payments thereon. The trial court declined to hold Mother in contempt for the other allegations set forth in Father's rules to show cause. The trial court also ordered Father to pay a portion of Mother's attorney fees. The trial court deferred ruling on Father's request to modify child support, however, because Father had not yet filed his business and personal income tax returns for 2010 and 2011, and the trial court concluded that this information was necessary to allow it to accurately calculate Father's income.¹ Father now appeals.

As an initial matter, we note that Mother did not file an appellee's brief. Accordingly, we apply a less stringent standard of review and may reverse if the appellant establishesprima facie error. Aiken v. Stanley, 816 N.E.2d 427 (Ind. Ct. App. 2004). Prima facie means "'at first sight, on first appearance, or on the face of it.'" Id. at 430 (quoting Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App. 2003)). However, this rule is not intended to benefit the appellant, but rather to relieve this court of the burden of developing arguments on the appellee's behalf. State v. Moriarty, 832 N.E.2d 555 (Ind. Ct. App. 2005). The burden of demonstrating trial error remains with the appellant. State v. Combs, 921 N.E.2d 846 (Ind. Ct. App. 2010).

Additionally, where, as here, the trial court enters findings of fact sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. Julie C. v. Andrew C., 924 N.E.2d 1249 (Ind. Ct. App. 2010). We will set aside the trial court's specific findings only if they are clearly erroneous, that is, when there are no facts or inferences drawn therefrom to support them. Id. In reviewing the trial court's findings, we consider only the evidence most favorable to the judgment and the reasonable inferences therefrom, and we will not reweigh the evidence or judge witness credibility. Id. We will affirm a general judgment on any legal theory supported by the evidence. Id.

1.

First, Father argues that the trial court erred by delegating authority to modify the parenting-time schedule to the parenting-time coordinator. "When reviewing a trial court's determination of a parenting time issue, we grant latitude and deference to the trial court and will reverse only when the trial court abuses its discretion." In re Paternity of C.H., 936N.E.2d 1270, 1273 (Ind. Ct. App. 2010), trans. denied. A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before it. Id.

Ind. Code Ann. § 31-14-14-2 (West, Westlaw current though 2012 2nd Reg. Sess.) provides that "[t]he court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child." (emphasis supplied). In Matter of Paternity of A.R.R., this court addressed a situation in which a trial court had delegated discretion over the frequency and supervision of a child's visits with her mother to a court-appointed family therapist. 634 N.E.2d 786 (Ind. Ct. App. 1994). This court reversed, concluding that

a modification of visitation may not be granted absent a determination by the court that the modification would serve the best interests of the child. No statute permits this determination to be delegated to a caseworker, probation officer, guardian, or other authority, and to do so would be to undermine the safeguards inherent in reserving to a detached and impartial court the task of weighing the many considerations relevant to visitation. By authorizing the [therapist] to determine when supervised visitation is no longer needed and when the frequency of visitation may be increased, the court impermissibly endowed that agency with judicial powers.

Id. at 789; see also Carmichael v. Siegel, 754 N.E.2d 619 (Ind. Ct. App. 2001) (holding that a court may not delegate decisions concerning the frequency and availability of visitation to other parties).

In this case, the trial court's order set forth a parenting-time schedule, but gave the parenting-time coordinator the authority to revise that schedule "to accommodate summer vacation, holidays, extended parenting time and extra-curricular activities." Appellant's Appendix at 34. The trial court's order also provided that "[i]t is not the intention of theCourt to bind [the parenting-time coordinator] to the parenting time guidelines in any way. He is free to construct a workable schedule that is best overall for [C.M.]." Id. at 35. The order also indicated that the trial court encouraged Mother and Father to attempt to reach agreements on parenting-time issues, but "if the parties are unable to reach an agreement on an issue, [the parenting-time coordinator] shall determine the outcome of the issue for purposes of acting as an Order of this Court." Id.

Based on this language, we conclude that the trial court impermissibly delegated decision-making authority with respect to the...