Moell v. Moell

• Citation: 84 N.E.3d 741
• Decision Date: 13 October 2017
• Docket Number: Court of Appeals Case No. 45A05-1704-DR-784.
• Parties: Ginger MOELL, Appellant–Respondent, v. Stephen R. MOELL, Appellee–Petitioner
• Court: Court of Appeals of Indiana

84 N.E.3d 741

Ginger MOELL, Appellant–Respondent,

v.Stephen R. MOELL, Appellee–Petitioner

Court of Appeals Case No. 45A05-1704-DR-784.

Court of Appeals of Indiana.

October 13, 2017

Attorney for Appellant: Debra Lynch Dubovich, Levy & Dubovich, Merrillville, Indiana

Attorneys for Appellee: Sandra Moreno–Garcia, Hobart, Indiana

May, Judge.

[1] Ginger Moell ("Mother") appeals the trial court's order regarding custody of N.M. and W.M. (collectively, "Children"). She presents several arguments for our review, which we restate as:

1. Whether the trial court had authority to modify the parties' settlement agreements;

2. Whether the trial court abused its discretion when it modified the parties' mediated custody agreement regarding W.M.; and

3. Whether the trial court abused its discretion when it sua sponte granted N.M. authority over decisions regarding his exercise of parenting time; health care; and participation in school, extracurricular, and religious activities.

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

Facts and Procedural History

[2] Mother and Stephen Moell ("Father") (collectively, "Parents") divorced on October 2, 2012. The dissolution proceedings resulted in three detailed, mediated settlement agreements regarding the custody and care of N.M. and W.M., born November 18, 1999, and October 17, 2003, respectively. Parents used a Parenting Time Coordinator to assist with co-parenting Children.

[3] In 2013, Father remarried and moved approximately forty-five minutes away from Mother's residence. Children lived in Mother's residence the majority of the time. Children were heavily involved in extracurricular and religious activities, and many of those activities interfered with parenting time arrangements. On March 24, 2015, Father filed a petition to modify parenting time. Father filed an amended petition to modify parenting time on June 3, 2015.

[4] With the assistance of the Parenting Time Coordinator, the parties entered into a Partial Agreed Order regarding Father's petition to modify parenting time, and agreed to use Dr. Marguerite Rebesco to "conduct counseling and therapy to help the parties communicate, cooperate and parent their children." (App. Vol. II at 72.) On February 22, 2017, Mother filed a motion for contempt based on Father's cancellation of one of Dr. Rebesco's appointments.

[5] On March 10, 2017, the trial court held a hearing on Father's petition to modify parenting time and Mother's motion for contempt. The trial court interviewed Children in camera . On March 30, 2017, the trial court entered an order modifying parenting time:

1. Pursuant to the mediation agreements, entered as orders by the Court, [Mother] and [Father] maintain joint legal custody. All other provisions of all three mediation agreements pertaining to custody and parenting time, including those pertaining to right of first refusal, are vacated.

2. [N.W.] shall exercise parenting time, participation in school, extracurricular and religious activities as he shall determine is in his own best interests. [N.W.] shall also make all final decisions pertaining to his health care.

3. [Father] and [Mother] shall continue to exercise joint legal custody over [W.M.], with [Mother] making all final decisions pertaining to education and religious upbringing, including extracurricular activities associated with each, and [Father] making all final decisions over health care.

4. All issues pertaining to parenting time shall be governed by the Indiana Parenting Time Guidelines, including the provisions pertaining to Opportunity for Additional Parenting Time, except that [Father] shall have parenting time with [W.M.] each week from Thursday at 5:00 p.m. through Sunday at 7:00 a.m. For purposes of calculating summer and holiday parenting time only, [Mother] shall be designated as the custodial parent.

* * * * *

7. Kim Harmon is discharged of all duties as Parenting Time Coordinator and Dr. Marguerite Rebesco is discharged of all duties as counselor with the sincere thanks of the Court for jobs well done.

(Id. at 14–5.)

Discussion and Decision

Court's Authority to Modify Terms of Settlement Agreement

[6] Mother argues the trial court did not have authority to vacate the terms of the three mediated settlements ratified as part of their dissolution decree.¹ She contends the mediated settlement agreements were binding contracts and thus the trial court did not have authority to modify them. In support of her argument, she cites multiple family law cases that hold settlement agreements are binding contracts. However, those cases are distinguishable because they deal with property settlements, not settlements involving the care of children. See Pohl v. Pohl , 15 N.E.3d 1006 (Ind. 2014) (interpreting spousal maintenance agreement); Myers v. Myers , 560 N.E.2d 39 (Ind. 1990) (involving modification of maintenance agreement and interpretation of property settlement agreement); White v. White , 819 N.E.2d 68 (Ind. Ct. App. 2004) (interpreting trial court's classification of a lien in the parties' settlement agreement); Roth s child v. Devos , 757 N.E.2d 219 (Ind. Ct. App. 2001) (involving the validity of a property settlement agreement).

[7] Mother cites no case law involving the modification of a settlement agreement involving child-related matters. To treat a settlement agreement regarding the care of children the same as a settlement agreement involving property is contrary to the court's paramount concern of ruling in the best interests of the children. See , e.g., Joe v. Lebow , 670 N.E.2d 9, 22 (Ind. Ct. App. 1996) ("in deciding whether to modify custody, the paramount concern is the best interests of the child"); Wible v. Wible , 245 Ind. 235, 237, 196 N.E.2d 571, 572 (1964) ("It is the children's welfare—not the parents'—that must control the actions of the court."), reh'g denied ; Ind. Code § 31–14–14–2 ("The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.").

[8] Specifically regarding modification of a settlement agreement involving children, our Indiana Supreme Court stated in Meehan v. Meehan , 425 N.E.2d 157 (Ind. 1981), superseded by statute as stated in Reinhart v. Reinhart , 938 N.E.2d 788, 793 n.2 (Ind. Ct. App. 2010), "the fact that a child support order has been entered pursuant to the terms of a settlement agreement, even where, as here, it is intended as forever determinative by the parties, is of no consequence to the question whether the order should be subsequently modified." Id. at 160. Thus, the trial court had authority to consider Father's motion for modification of parenting time.

Modification of Parenting Time

[9] Our standard of review in cases involving requests to modify parenting time² is well-settled:

Upon review of a trial court's determination of a visitation issue, we will grant latitude and deference to our trial courts, reversing only when the trial court manifestly abuses its discretion. Kirk v. Kirk , 770 N.E.2d 304, 307 (Ind. 2002) ; Lasater v. Lasater , 809 N.E.2d 380, 400 (Ind. Ct. App. 2004). No abuse of discretion occurs if there is a rational basis in the record supporting the trial court's determination. Lasater , 809 N.E.2d at 400. Therefore, on 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. Kirk , 770 N.E.2d at 307. We will neither reweigh evidence nor judge the credibility of witnesses. Lasater , 809 N.E.2d at 400. In all visitation issues, courts are required to give foremost consideration to the best interests of the child. Id.

Duncan v. Duncan , 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied .

Father's Parenting Time with W.M.

[10] Regarding W.M., the trial court observed:

[W.M.], a young teenager, still needs the guidance of his parents, and is used to which parent makes which ultimate decisions pertaining to his upbringing, but needs to have more certainty and less travel time in his life: [Father] and [Mother] live at least a 45–minute drive from each other, resulting in [W.M.] spending large chunks of time being transported rather than participating in the multitude of activities he enjoys, being able to get his homework done, or just plain hanging out with mom or dad in a venue other than an automobile. The distance between [Father] and [Mother] also makes their agreement regarding what they called the Right of First Refusal impractical: a 45–minute drive each way puts a great deal of stress not only on [W.M.], but also his parents. It is simply too great a distance to travel for the exercise of three hours of parenting time.

(App. Vol. II at 14.) Based thereon, the trial court ordered:

3. [Father] and [Mother] shall continue to exercise joint legal custody over [W.M.], with [Mother] making all final decisions pertaining to education and religious upbringing, including extracurricular activities associated with each, and [Father] making all final decisions over health care.³

4. All issues pertaining to parenting time shall be governed by the Indiana Parenting Time Guidelines, including the provisions pertaining to Opportunity for Additional Parenting Time, except that [Father] shall have parenting time with [W.M.] each week from Thursday at 5:00 p.m. through Sunday at 7:00 a.m. For purposes of calculating summer and holiday parenting only, [Mother] shall be designated as the custodial parent.

(Id. at 15) (footnote added).

[11] Mother argues modification of Father's parenting time with W.M. is not in W.M.'s best interests because the trial court noted Children were "happy, healthy, and well-adjusted." (Id. at 12.) However, the trial court also noted the current arrangements "have brought contention, confusion and stress upon all of them" and it was in Children's "best interests to modify the current custodial and parenting time arrangements to bring some modicum of stability,...