Meisberger v. Bishop

• Decision Date: 26 August 2014
• Docket Number: No. 39A01–1402–DR–76.,39A01–1402–DR–76.
• Parties: In re the Marriage of Wade R. MEISBERGER, Appellant–Respondent, v. Margaret BISHOP f/k/a Margaret Meisberger, Appellee–Petitioner.
• Court: Indiana Appellate Court

15 N.E.3d 653

In re the Marriage of Wade R. MEISBERGER, Appellant–Respondent

v.Margaret BISHOP f/k/a Margaret Meisberger, Appellee–Petitioner.

No. 39A01–1402–DR–76.

Court of Appeals of Indiana.

Aug. 26, 2014.

Wade R. Meisberger, Carlisle, IN, Appellant Pro Se.

OPINION

BROWN

, Judge.

Wade Meisberger (“Father”), pro se, appeals, the trial court's Order on All Pending Issues denying his Motion to Modify Parenting Time, as well as his motion to correct error. Father raises one issue which we revise and restate as whether the court erred in denying his Motion to Modify Parenting Time and motion to correct error. We remand.

FACTS AND PROCEDURAL HISTORY¹

In the early 1990s, Father was sentenced to forty-eight years in the Department of Correction (“DOC”) for convictions of murder and theft occurring in Bloomington, Indiana.² See Meisberger v. State, 640 N.E.2d 716, 719 (Ind.Ct.App.1994)

, trans. denied. He was placed on probation on September 7, 2007, and shortly thereafter fathered E.M., born on July 31, 2008, to Margaret (Meisberger) Bishop (“Mother”), who he at one point married. On April 21, 2009, Bishop filed a petition for dissolution of her marriage to Father.

On November 30, 2009, the court issued a summary decree of dissolution of marriage. On August 4, 2010, the court entered an Order on Agreed Entry for Modification of Custody and Visitation which had been filed by Father. Following a Notice of Intent to Move filed by Bishop, an Objection filed by Father, and a hearing, the court issued an Agreed Order on October 3, 2011, which gave Father parenting time pursuant to the Indiana Parenting Time Guidelines.

On May 20, 2012, the State field a Petition to Revoke Suspended Sentence against Father alleging that he had violated the terms of his probation by failing to appear for a scheduled meeting with probation officers and to notify the probation department of a change of residence, and on August 6, 2012, the court revoked his probation and ordered that he serve the remainder of his term executed in the DOC. See Meisberger v. State, No. 53A05–1208–CR–452, slip op. at 3–5, 2013 WL 3148995 (Ind. Ct.App. June 19, 2013)

, trans. denied. Father's earliest possible release date is July 16, 2021.

The chronological case summary (“CCS”), in an entry dated August 1, 2013, indicates that Father sent a letter to the court, requested an order for transport and filed a “Motion to Set Hearing,” and an entry dated August 13, 2013 notes that the court received a second letter from Father. Appellant's Appendix at 8. In an entry dated August 15, 2013, the CCS indicates that the court issued an Order Denying Request for Order of Visitation and Request for Transport, and on August 30, 2013, Father filed a pro se motion to correct error and memorandum of law in support of the motion. The court, on October 3, 2013, denied Father's motion to correct error, and on October 9, 2013, Father filed a pro se Motion to Modify Parenting Time and Set Hearing and a memorandum of law in support. The court issued an order setting a hearing on Father's motion and scheduled transport, and a hearing was held on December 10, 2013, in which both parties appeared pro se.³ On January 9, 2014, the court issued its Order on All Pending Issues (the “Order”) which contained findings consistent with the foregoing and further stated as follows:

[Mother] and [Father] both appear in person, but without counsel, for hearing on December 10, 2013 (in Vernon) on the following pending issues:

• Notice of Change of Circumstances and Request for Order of Visitation filed by [Father] on or about July 25, 2013;⁴ and

• Motion to Modify Parenting Time and Set hearing filed by [Father] on October 9, 2013

and this Court, having heard and seen evidence, now finds as follows:

* * * * *

3. After [E.M.'s] birth on July 31, 2008, [Father] and [Mother] lived together as husband and wife until the Verified Petition for Dissolution of Marriage was filed on August 21, 2009. For approximately the next year, [Father] was in and out of [E.M.'s] young life.

4. [Mother] is now living in Hanover. She is the custodial parent.

5. [Mother] allows [Father's] parents to exercise grandparent time with [E.M.] and they have a good relationship with him and her.

* * * * *

7. [Mother] is opposed to parenting time at [the DOC], is opposed to transporting [E.M.] there, and indicates [Father's] parents do not want to transport the child either. His parents were present for this hearing.

* * * * *

9. Of [E.M.'s] five (5) years of life, [Father] has been a consistent part of it for only one (1) year and, thus, it is not in his best interest to have in person parenting time within the confines of a prison facility.

10. However, [Father] may send mail to his son via his parents who are authorized to “screen” it before turning it over to [Mother]....

11. [Father] may also telephone his son, at his expense, while [E.M.] is visiting his paternal grandparents, but the grandparents must screen and monitor the calls.... Calls made by [Father] shall be limited to seven (7) minutes.

12. [Mother] shall provide a yearly school picture to [Father].

Id. at 37–39. Father filed a motion to correct error which was denied on January 24, 2014.

DISCUSSION

Before addressing Father's arguments, we note that although he is proceeding pro se, such litigants are held to the same standard as trained counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App.2004)

, trans. denied. This court will not “indulge in any benevolent presumptions on [his] behalf, or waive any rule for the orderly and proper conduct of [his] appeal.” Ankeny v. Governor of State of Ind., 916 N.E.2d 678, 689 (Ind.Ct.App.2009) (citation omitted), reh'g denied, trans. denied.

We also note that Mother did not file an appellee's brief. When an appellee fails to submit a brief, 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. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind.Ct.App.2006)

. This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct.App.2002). Questions of law are still reviewed de novo, however. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008).

The issue is whether the court erred in denying Father's Motion to Modify Parenting Time and motion to correct error. A decision about parenting time requires us to give foremost consideration to the best interests of the child. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.2013)

. Generally, parenting time decisions are reviewed for an abuse of discretion. Id. If the record reveals a rational basis for the trial court's determination, there is no abuse of discretion. In re Paternity of G.R.G., 829 N.E.2d 114, 122 (Ind.Ct.App.2005). We will not reweigh evidence or reassess the credibility of witnesses. Id. We review a trial court's denial of a motion to correct error for an abuse of discretion, reversing only where the trial court's judgment is clearly against the logic and effect of the facts and circumstances before it or where the trial court errs as a matter of law. Perkinson, 989 N.E.2d at 761.

Father argues that “the right of non-custodial parents to visit with their children is a ‘sacred and precious privilege’ ” and is “statutorily protected.” Appellant's Brief at 16. He argues that here he had been granted visitation rights pursuant to the Guidelines, was precluded from exercising those rights by incarceration, and the court in ruling on his motion did not consider the relevant factors in Ind.Code § 31–17–4–2

, instead “only writing, ‘... it is not in his best interest to have in person parenting time within the confines of a prison facility. ’ ” Id. at 15. He argues that “[b]ecause there was no evidence that from the date of the divorce [Father] posed a threat of any kind to either [the] child's physical or emotional health, the ruling terminating visitation was an abuse of discretion....” Id. at 18. Father asserts that the court's determination that he may speak with E.M. by telephone for seven minutes under the supervision of grandparents, that he may write E.M. but that such letters must be screened by grandparents, and that Mother shall send Father a school picture of E.M. annually, “border[s] on controlling intervention of the state” and “is not supported by any evidence whatsoever for the trial court to support these orders and restrictions....” Id. at 21. Father maintains that the court further abused its discretion “when it ‘calculated’ the amount of time that [he] was ‘a part of young [E.M.'s] life.’ ” Id. He further argues that “[i]t was only [Mother's] self-serving testimony that [he] was not a fit parent, never providing any evidence to the trial court when requested,” that Mother admitted “hearsay statements” from Father's mother, and further that the court “asked several questions of both [grandparents] while they were in the courtroom gallery” in which “[t]hey were not sworn....” Id. at 21–22.

As noted above, we do not have a transcript of the hearing because Father did not pay to have the hearing transcribed or otherwise provide a record of the proceedings below. Accordingly, we have no specific information regarding the evidence presented to support the court's findings in its Order. Father's failure to submit a transcript of the hearing is in contravention of Indiana Appellate Rule 9(F)(5)

, which provides that an appellant's Notice of Appeal shall designate “all portions of the Transcript necessary to present fairly and decide the issues on appeal.” Appellate Rule 9(F)(5) further provides that, “[i]f the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the...