Perkinson v. Perkinson

• Decision Date: 25 June 2013
• Docket Number: No. 36S05–1206–DR–371.,36S05–1206–DR–371.
• Citation: 989 N.E.2d 758
• Parties: Michael D. PERKINSON, Jr., Appellant (Petitioner below), v. Kay Char PERKINSON, Appellee (Respondent below).
• Court: Indiana Supreme Court

989 N.E.2d 758

Michael D. PERKINSON, Jr., Appellant (Petitioner below),

v.Kay Char PERKINSON, Appellee (Respondent below).

No. 36S05–1206–DR–371.

Supreme Court of Indiana.

June 25, 2013.

Amy O. Carson, Indianapolis, IN, Attorney for Appellant.

Thomas J. Lantz, Seymour, IN, Attorney for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 36A05–1106–DR–322

DAVID, Justice.

The concept of parents negotiating away parenting time as a means to eliminate the obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. Here, an agreement to forego parenting time in exchange for relief from child support is declared void against public policy.

In addition, under the circumstances of this case, the trial court's prohibition against parenting time is not supported by the record. Trial courts are equipped with a plethora of options and a broad range of discretion to tailor each decision to the particular circumstances. However, their discretion is not absolute. We reverse the decision of the trial court which prohibited the father from exercising any parenting time with his child and provided no means by which he could earn parenting time.

Facts and Procedural History

Michael D. Perkinson (Father) married Kay Char Perkinson (Mother) in October 2004. [Appellant's App. 56.] In August 2005, Mother gave birth to L.P. In September 2005, Father filed a petition for dissolution of the marriage. Father exercised parenting time with L.P. during the dissolution proceeding. Father also exercised parenting time with A.P., his child from a previous relationship.

A dissolution decree was entered in February 2006. It distributed marital assets and debts between Father and Mother and set out child support payments for L.P. Father and Mother entered into an agreement in which Father agreed to waive his parenting time rights in exchange for Mother assuming sole financial responsibility and waiving enforcement of Father's child support arrearage.

The agreement also set out that if Father sought parenting time in the future, “he shall be obligated to pay any support arrearage through the date of the approval”of the agreement by the trial court. The agreement was approved by the court in March 2006.

In February 2008, Father filed a verified petition for modification of parenting time, seeking to reestablish visitation with L.P. The trial court denied that petition in April 2008. Father filed a motion to correct error in May 2008, which was denied by the trial court in July 2008. In December 2010, Father filed a second verified petition for modification of parenting time. In March 2011, a hearing was conducted on the petition and the trial court again denied his petition. Father submitted a motion to correct error in March 2011 and in June 2011, the trial court denied the motion to correct error. The Court of Appeals reversed and remanded. We granted transfer.

Discussion

Father appeals from the trial court's denial of his motion to correct error. We review a trial court's denial of 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 on a matter of law. Hawkins v. Cannon, 826 N.E.2d 658, 663 (Ind.Ct.App.2005), trans. denied.

When the trial court enters findings sua sponte, the specific findings will not be set aside unless clearly erroneous. Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind.Ct.App.1997), trans. denied. “A finding is clearly erroneous when there are no facts or inferences drawn therefrom which support it.” Id. at 76–77. We neither reweigh the evidence nor judge the credibility of the witnesses. Id. at 77. We consider only the evidence and reasonable inferences drawn therefrom that support the findings. Id. We review the trial court's legal conclusions de novo. Mansfield v. McShurley, 911 N.E.2d 581, 589 (Ind.Ct.App.2009).

This is ultimately a decision about parenting time, which requires us to “give foremost consideration to the best interests of the child.” Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind.Ct.App.1998), trans. denied. Parenting time decisions are reviewed for an abuse of discretion. Id. Judgments in custody matters typically turn on the facts and will be set aside only when they are clearly erroneous. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind.2008). “We will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment.” Id. 1257–58.

The landmark Supreme Court case Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), did an extensive historical analysis of parental rights in this country. “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id. at 65, 120 S.Ct. 2054. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944). “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).

A. Parenting Time Rights Cannot Be ContractedAway

It is incomprehensible to this Court to imagine that either parent would ever stipulate to give up parenting time in lieu of not paying child support. It has long been established by this Court that “[a]ny agreement purporting to contract away these [child support] rights is directly contrary to this State's public policy of protecting the welfare of children.” Straub v. B.M.T., 645 N.E.2d 597, 600 (Ind.1994). See also Trent v. Trent, 829 N.E.2d 81, 86 (Ind.Ct.App.2005). In Halum v. Halum, 492 N.E.2d 30, 33 (Ind.Ct.App.1986), the Court of Appeals held that a “custodial parent may not bargain away the children's right to support.” Such agreements between parents are void as a matter of public policy and our trial courts should be very careful not to allow the results which occurred in this case.

Even if it is not in a child's best interest to visit with a parent, it is still in that child's best interest to be financially supported by that parent. “It is well established that the right to child support lies exclusively with the child and that a custodial parent holds the support payments in trust for the benefit of the child.” Sickels v. State, 982 N.E.2d 1010, 1013 (Ind.2013)citing In re Hambright, 762 N.E.2d 98, 101 (Ind.2002); Hicks v. Smith, 919 N.E.2d 1169, 1171 (Ind.Ct.App.2010), trans. denied. Custodial parents who receive child support funds act as a trustee, and, “as a constructive trustee, [the custodial parent] may not contract away the benefits of the trust.” Nill v. Martin, 686 N.E.2d 116, 118 (Ind.1997). To do so would violate the fiduciary duty the custodial parent owes the child in relation to any child support funds.

Furthermore, the clause of the agreement purporting to obligate the Father to pay any support arrearage if he sought parenting time in the future acts to discourage the Father's future involvement with his child. As our Court of Appeals previously held, “[v]isitation rights and child support are separate issues, not to be comingled. A court cannot condition visitation upon the payment of child support if a custodial parent is not entitled to do so.” Farmer v. Farmer, 735 N.E.2d 285, 288 (Ind.Ct.App.2000).

“Indiana has long recognized that the right of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents,” and thus a noncustodial parent is “generally entitled to reasonable visitation rights.” Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind.Ct.App.2006) ( citing, inter alia,Ind.Code § 31–17–4–1), trans. denied.Indiana Code section 31–17–4–2 states that parenting time rights shall not be restricted unless there is a finding “that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.” A trial court is empowered to specify and enforce the visitation rights of the non-custodial parent pursuant to Indiana Code.

The Court of Appeals first addressed the appropriate standard for denying parenting time to a noncustodial parent in Stewart v. Stewart, 521 N.E.2d 956 (Ind.Ct.App.1988). In Stewart, the Court of Appeals reviewed the statutory language with respect to eliminating or restricting parenting time by a non-custodial parent.¹ The Court of Appeals wrote:

Neither party suggests that the word “might” in the statute (“visitation by the parent might endanger the child's physical health or significantly impair his emotional development”) requires only a mere possibility that the physical or mental health of the child would be endangered or impaired. In view of the nature of the parental right being cut off, such a construction would be an absurd one. Why would the legislature acknowledge the basic right of visitation of a noncustodial parent and then effectively abolish that right by permitting terminations supported only by speculative, possibility-type evidence. Thus, we have no hesitation in concluding that statute requires evidence establishing that visitation “would” (not “might”) endanger or impair the physical or mental health of the child.

Stewart, 521 N.E.2d at 960, n. 3,trans. denied. This has been the test utilized by the trial courts since Stewart. One of the fundamental rules...