McClendon v. Triplett
| Decision Date | 03 March 2022 |
| Docket Number | Court of Appeals Case No. 21A-DR-1852 |
| Citation | 184 N.E.3d 1202 |
| Parties | In the Matter of the Marriage of: Kristi M. MCCLENDON, Appellant-Petitioner, v. Richard L. TRIPLETT, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Nicholas F. Wallace, Ft. Wayne, Indiana
Attorney for Appellee: Perry D. Shilts, Ft. Wayne, Indiana
[1] Kristi McClendon ("Mother") appeals the trial court's modification of custody of K.T. and D.T. ("Children") in favor of Richard Triplett ("Father"). The trial court granted Father primary physical and sole legal custody of the Children and granted Mother parenting time when distance is a major factor. Mother appeals and argues that the trial court erred by: (1) denying Mother's motion for a continuance; (2) allowing K.T. to testify outside the presence of Mother and Father; (3) denying Mother's motion to strike the testimony of three witnesses for an alleged violation of a separation of witnesses order; and (4) granting Father's petition for modification of custody. Mother's arguments fail, and we affirm the trial court's modification of custody.
[2] Mother raises five issues, which we consolidate and restate as:
[3] K.T. was born in May 2005 to Mother. Mother and Father married in February 2013, and D.T. was born the same month. Father then adopted K.T. Mother and Father later separated, and the parties’ marriage was dissolved in August 2016. The parties agreed to the following:
Appellant's App. Vol. II p. 14.
[4] Father lives in Bluffton, Indiana. Mother has moved repeatedly since the parties’ separation. In February 2016, shortly after the parties’ separation, Mother and the Children moved to South Carolina for six months to be near the father of her son, D.J.1 Mother and the Children then moved to Cameron, North Carolina, for a better job that Mother obtained. They moved into an apartment with Mike2 , Mother's new husband, while they were building a house. After the house was completed, Mother and the Children lived there with Mike for approximately one year until Mother and Mike divorced. Mother and the Children then moved into an apartment in Apex, North Carolina, where they lived for approximately one year until the apartment was flooded. They briefly lived with Justin McClendon, who Mother began dating in May 2019, at a house owned by McClendon's family. Mother and the Children later moved into a house with McClendon in Whitsett, North Carolina. Mother and McClendon married in December 2020.
[5] The moves required K.T. to attend at least six different schools and required D.T. to attend three different schools. For a time, the Children were enrolled in a public school with a year-round calendar, which allowed Father to exercise significant parenting time during school breaks. K.T. began an online homeschooling high school program. Mother enrolled D.T. in a private school in August 2020, and the private school's calendar precluded Father from exercising the same amount of parenting time as he did while D.T. was in public school.
[6] Although Father's relationship with K.T. was strained after the dissolution of his marriage with Mother, K.T. and Father have become much closer. For a few years, K.T. has expressed a desire to live with Father.
[7] In September 2020, K.T. and Mother were arguing, and McClendon walked in and grabbed K.T.’s phone out of her hand. K.T. alleges that McClendon scratched her arm when he took the phone. That same month, K.T. again asked to live with Father and asked if she could stay in North Carolina until after Halloween. Initially, Mother agreed, but later that day, Mother entered K.T.’s bedroom and directed K.T. to pack her bags and box up her room because Mother was sending K.T. to Indiana at 6:00 a.m. the next morning. Mother instructed K.T. to notify Father about the change in plans.
[8] The next morning, Mother took K.T. to the airport. According to K.T., when they arrived, Mother wheeled one of K.T.’s suitcases into the airport and left without saying goodbye. When K.T. arrived in Indiana, Father texted Mother to inform her that K.T. had arrived. Mother did not respond and did not contact Father or K.T. for approximately six weeks. Mother did not send K.T.’s boxes of belongings until a couple months after K.T. arrived in Indiana. While K.T. was living with Father, Mother blocked Father from calling or texting Mother's phone, and Father was unable to contact D.T. for four months.
[9] In October 2020, Father filed a petition for modification of custody and requested sole custody of the Children. Father alleged a substantial change in circumstances and that a modification was in the Children's best interest because:
The parties shared 50/50 parenting time of the children even though they lived in separate states. The minor children of the parties have been home schooled. At the beginning of this school year, [Mother] informed [Father] that they would no longer be doing a 50/50 parenting time split for their minor son. She enrolled their minor son in private school and effectively ended the 50/50 parenting time split. The minor daughter of the parties was sent on an airplane to come live with [Father] effective September 13, 2020. [Father] does want the minor daughter of the parties to reside with him and is willing to keep her with him. For those reasons, [Father] is requesting an order for custody of both minor children.
Appellant's App. Vol. II p. 25.
[10] In December 2020, Mother filed a petition for contempt and alleged that Father had failed to return K.T. to her care. The parties reached a temporary mediated agreement. The parties agreed that K.T. would return to Mother on April 12, 2021, and Father would have parenting time in Indiana with the Children from June 4, 2021, until August 1, 2021.
[11] On April 30, 2021, Father filed a motion for the appointment of a GAL, and on May 3, 2021, the trial court appointed Angelica Fuelling as the GAL. The trial court's order provided: "The Guardian Ad Litem shall have the right to present evidence and/or call witnesses at all hearings or proceedings scheduled in this cause." Id. at 42. Although the trial court did not order the GAL to submit a report, the GAL filed a report two days before the July 23, 2021 hearing. The GAL noted that sixteen-year-old K.T. wished to live with Father, and eight-year-old D.T. wished to live with Mother. The GAL, however, believed that D.T.’s wishes were based "primarily [on] baseball and his friends." Id. at 55. Ultimately, the GAL recommended that Father have primary physical custody of K.T. and D.T. and that Mother have parenting time pursuant to Section III of the Indiana Parenting Time Guidelines, where distance between parents is a major factor.
[12] On July 22, 2021, Mother filed a motion to continue the evidentiary hearing due to "the late filing of the Guardian Ad Litem Report." Tr. Vol. I. p. 5.3 Mother argued that the report was required to be filed ten days prior to the hearing. The trial court denied the motion for continuance and noted that school would be starting soon. The trial court found that, even if the GAL's report was "coming in a little late," having the report ten days before the hearing would not have "made anything different for [Mother] and being able to defend against it...." Id. at 10.
[13] At the evidentiary hearing, the trial court ordered a separation of witnesses at Mother's request. Father called Kristina Affolder, who babysat D.T. during his stays with Father. At the end of her testimony, Mother asked if Affolder spoke to K.T. while she was waiting to testify. Affolder responded that she was talking with K.T. and Shannon Camden, the mother of Father's seventeen-year-old daughter, A., in the hallway while waiting to testify, but no conversations about Father or the hearing took place.
[14] Father also called Camden as a witness. Camden was also questioned about her conversations with K.T. and Affolder while waiting to testify. Camden testified that she knew of the separation of witnesses order but that the conversations did not involve "talking about the case." Id. at 125.
[15] Mother called her husband, McClendon, as a witness, and he testified that he heard K.T., Affolder, and Camden talking in the hallway on the day of the hearing. According to McClendon, they discussed K.T.’s relationship with Father, the local high school K.T. might attend and whether K.T. had toured the high school yet, K.T.’s...
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