Rickman v. Rickman

• Decision Date: 10 September 2013
• Docket Number: No. 27A02–1211–DR–950.,27A02–1211–DR–950.
• Citation: 993 N.E.2d 1166
• Parties: Myron Jay RICKMAN, Appellant–Respondent, v. Sheila Rena RICKMAN, Appellee–Petitioner.
• Court: Indiana Appellate Court

993 N.E.2d 1166

Myron Jay RICKMAN, Appellant–Respondent,

v.Sheila Rena RICKMAN, Appellee–Petitioner.

No. 27A02–1211–DR–950.

Court of Appeals of Indiana.

Sept. 10, 2013.

Myron Jay Rickman, Bunker Hill, IN, appellant pro se.

OPINION

BROWN, Judge.

Myron Jay Rickman, pro se, appeals the trial court's denial of his petition for modification of visitation order and denial of his motion to correct error. Rickman raises one issue which we revise and restate as whether the court erred in denying Rickman's petition for modification of visitation order and motion to correct error. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On May 4, 1996, Rickman and Sheila Rickman were married and had one child, M.R., who was born on November 26, 1996.¹ On June 5, 1997, Sheila filed a petition for dissolution of marriage and petition for joint preliminary injunction and temporary restraining order. In February 1998, the court appointed a special advocate (a “CASA”) for M.R. On March 25, 1998, the court terminated restricted visitation.

On November 23, 1998, the court entered a custody and visitation decree which stated that the CASA recommended that Sheila have sole legal custody of M.R. and that Rickman “be granted supervised visitation on the basis of the CASA's investigation into three (3) alleged child molestation reports brought against” Rickman. Appellant's Appendix at 33. The court granted Sheila sole legal and physical custody of M.R. and gave Rickman supervised visitation.

On July 16, 1999, the CASA filed an emergency request for modification of visitation between M.R. and Rickman. On July 19, 1999, the court granted the CASA's request and terminated visitation between M.R. and Rickman pending a hearing on August 23, 1999. Following the hearing, on August 26, 1999, the court suspended Rickman's visitation rights.

In 2000, Rickman was sentenced to an aggregate term of fifty years for eight counts of child molesting as class A felonies, child molesting as a class C felony, and criminal confinement as a class C felony.²See Rickman v. State, No. 27A04–1002–CR–80, slip op. at 3, 2010 WL 3050048 (Ind.Ct.App. August 5, 2010).

On September 20, 2012, Rickman, pro se, filed a verified petition for modification of visitation order. He requested that the court grant him telephone access with M.R. and communication via mail. Rickman also suggested that “any/all determination of his modification (of visitation) request be conveyed directly to [M.R.] by the court, in camera, so as to preclude parental pressure.” Appellant's Appendix at 41. On September 27, 2012, the court denied Rickman's petition without a hearing. The chronological case summary (“CCS”) contains an entry which states: “The Court, having reviewed [Rickman's] Verified Petition for Modification of Visitation Order, now denies such petition without hearing. [Rickman] is incarcerated at the Indiana Department of Corrections on Child Molesting charges.” Id. at 17.

On October 24, 2012, Rickman filed a motion to correct error. He alleged that the court erred in utilizing his incarceration “as a premise for denying his visitation right(s), in toto, ... via the Indiana Parenting Time Guidelines” and that the trial court did not find nor did the State assert “that the [child molesting] charge[s were] in any way associated with his own child.” Id. at 44. On October 30, 2012, the court denied Rickman's motion to correct error.

DISCUSSION

Before addressing Rickman's arguments, we note that Sheila 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). However, questions of law are still reviewed de novo. McClure v. Cooper, 893 N.E.2d 337, 339 (Ind.Ct.App.2008).

The issue is whether the court erred in denying Rickman's petition for modification of visitation order 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 on a matter of law. Perkinson, 989 N.E.2d at 761.

Rickman argues that the Indiana Parenting Time Guidelines encourage communication with a child by telephone and mail and that “[t]his is exactly what [he] is requesting if ... [M.R.] is receptive.” Appellant's Brief at 8. He contends that “the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.” Id. (citing Ind.Code § 31–17–4–2). He requests that we remand this case to the trial court with instructions that the court conduct an in camera interview and notify the parties of M.R.'s decision as to his desire to have communication with him.

To the extent that Rickman suggests that the trial court did not make the requisite finding under Ind.Code § 31–17–4–2, we observe that the statute governs the modification, denial, and restriction of parenting time rights and provides:

The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.

Ind.Code § 31–17–4–2. The trial court did not make any finding that a restriction on Rickman's parenting time consisting of telephone and mail contact might endanger M.R.'s physical health or significantly impair his emotional development, as required by Ind.Code § 31–17–4–2.

To the extent that Rickman cites the Indiana Parenting Time Guidelines, we observe that the Guidelines provide that “[b]oth parents shall have reasonable phone access to their child” and “[a] parent and a child shall have a right to communicate privately by ... cards, letters, and packages, without interference by the other parent.” Ind. Parenting Time Guideline I(A). At the time that Rickman filed his petition, Part C of the Preamble of the Parenting Time Guidelines provided:

These Guidelines are applicable to all child custody situations, including paternity cases and cases involving joint legal custody where one person has primary physical custody. However, they are not applicable to situations involving family violence, substance abuse, risk of flight with a child, or any other circumstances the court reasonably believes endanger the child's physical health or safety, or significantly impair the child's emotional development. In such cases one or both...