Russell v. Russell

• Court: Indiana Appellate Court
• Writing for the Court: Tavitas, Judge.
• Citation: Russell v. Russell, 223 N.E.3d 708 (Ind. App. 2023)
• Docket Number: Court of Appeals Case No. 23A-DC-578
• Decision Date: 22 November 2023
• Parties: Jamie Marie RUSSELL, Appellant-Petitioner, v. Leonard Alan RUSSELL, Appellee-Respondent.

223 N.E.3d 708

Jamie Marie RUSSELL, Appellant-Petitioner,

v.Leonard Alan RUSSELL, Appellee-Respondent.

Court of Appeals Case No. 23A-DC-578

Court of Appeals of Indiana.

Filed November 22, 2023

Appeal from the Marion Superior Court, The Honorable Marie L. Kern, Magistrate, Trial Court Cause No. 49D14-2110-DC-9275

Attorneys for Appellant: Rachelle N. Ponist, Morgan B. Brading, Nicholas Andre, Harshman Ponist Smith & Rayl LLC, Indianapolis, Indiana

Attorney for Appellee: Betsy Sommers, Coots, Henke & Wheeler, P.C., Carmel, Indiana

Tavitas, Judge.

Case Summary

[1] In this dissolution-of-marriage case, Jamie Marie Russell ("Mother") and Leonard Alan Russell ("Father") entered into a partial mediated settlement agreement ("Partial Mediated Agreement") in which they agreed to share "joint physical custody" of the parties’ daughter, K.R. ("Daughter"). The trial court accepted and approved this agreement. The trial court, however, in both its subsequent provisional order and final dissolution decree, sua sponte addressed the issue of physical custody and awarded Mother less parenting time than that awarded to Father. Mother appeals and argues that, by granting unequal parenting time, the trial court violated the terms of the Partial Mediated Agreement. We agree with Mother that the Partial Mediated Agreement called for the parties to have equal parenting time and that the trial court’s custody order awarded Mother less than equal parenting time. Accordingly, we reverse and remand.

Issue

[2] Mother presents one issue for our review, which we expand and restate as the following two:

I. Whether the parties’ agreement to share "joint physical custody" means that the parties agreed to have equal parenting time with Daughter.

II. Whether trial court had authority to award Mother less parenting time than Father after the court accepted and approved of the Partial Mediated Agreement.

Facts

[3] Mother and Father married in July 2016. The marriage produced one child, Daughter, who was born in December 2017. Mother has an older daughter from a prior relationship. Mother and Father separated, and, on October 29, 2021, Mother filed a petition to dissolve the marriage. On January 27 and 31, 2022, the trial court held provisional hearings.¹ At this time, Mother indicated her intention to move from the Indianapolis area to somewhere closer to Lafayette, where Mother was employed.

[4] On March 15, 2022, the parties participated in mediation and signed the Partial Mediated Agreement. The Partial Mediated Agreement resolved all issues regarding the marital estate and some of the issues regarding child custody. Regarding other child custody issues, however, the Partial Mediated Agreement provided:

12. Parties agree to joint legal and physical custody of Minor Child. Parties are not in agreement with regards to the primary residence of Minor Child or the long[-]term parenting time schedule, such matters are reserved for a final hearing on this matter.

13. In the interim, parents agree that they will engage in a "nesting" parenting time arrangement with each parent occupying the residence for three days/overnights in an alternating pattern. Each parent agrees to be absent from the Marital Residence[ ] during the other parent’s parenting time.

Appellant’s App. Vol. II pp. 22-23 (emphasis added). On March 17, 2022, the trial court accepted and approved the Partial Mediated Agreement via an entry that stated the Agreement was "APPROVED AND SO ORDERED[.]’’ Appellant’s App. Vol. II p. 25. Nothing in the Partial Mediated Agreement suggests that it was intended to be a temporary agreement that was modifiable by the trial court.

[5] On March 21, 2022, the trial court entered an order after the provisional hearing ("Provisional Order"), which provides in pertinent part:

5. The Court finds it is in the child’s best interests to order Father to have primary physical custody of the minor child, subject to Mother’s parenting time. The Court believes Father is more likely to facilitate parenting time with the minor child. The Court is also concerned by some of Mother’s decisions as they reflect upon her judgment, such as discussing adult matters in front of the child, leaving the child in the care of a third party without communicating this information to Father and filming Father in front of the child.

6. Mother may exercise her parenting time in Clarks Hill, Indiana, or Lafayette, Indiana, should she so desire, If Mother exercises her Wednesday parenting time in Clarks Hill or Lafayette, the parties shall meet at an agreed upon halfway point at 8:00 p.m.

7. The parties shall divide holidays and special days per the Indiana Parenting Time Guidelines as amended January 1, 2022.

Appellant’s App. Vol. II pp. 26-27 (emphasis added). The Provisional Order did not mention the Partial Mediated Agreement the court had approved only five days before the entry of the Provisional Order. A final hearing date was set for May 10, 2022.

[6] On April 18, 2022, Mother moved to continue the final hearing. The trial court granted this motion over Father’s objection and set the final hearing for July 25, 2022. Before the final hearing, Mother moved to set aside the Provisional Order.

Three days before the final hearing, Father moved to modify legal custody, and on the day of the final healing, Mother also moved to modify legal custody.

[7] The trial court began the final hearing on July 25, 2022. At the hearing, Mother argued that the trial court should set aside the Provisional Order because the order was inconsistent with the provisions of the Partial Mediated Agreement regarding physical custody. The trial court was unable to complete the final hearing on that day and scheduled a second day of the hearing for September 26, 2022. On August 24, 2022, between the first and second day of the hearing, the trial court entered an Order on Interim Parenting Time. In this order, the trial court noted that Mother had not moved to Lafayette as previously indicated and, therefore, awarded Mother more parenting time than called for by the Guidelines. Specifically, the trial court ordered:

The Court now orders Mother to have parenting time pursuant to the [Indiana Parenting Time Guidelines], plus an additional overnight on Sundays of the weekends she exercises parenting time and a mid-week overnight every week. Mother shall be permitted to pick the child up from the childcare/daycare provider to begin her parenting time. The child shall be returned to a childcare provider at the conclusion of her parenting time.

Id. at 41. Following the September 26, 2022 continuation of the final hearing, the trial court took the matter under advisement.

[8] On February 13, 2023, the trial court issued the final dissolution decree. In its decree, the trial court denied Mother’s motion to set aside the Provisional Order and awarded Father sole legal custody and primary physical custody of Daughter. The dissolution decree provided in relevant part:

9. The Partial Mediated Settlement Agreement resolved some child custody and parenting time issues.

10. Per the Partial Mediated Settlement Agreement, the parties were to share joint legal and joint physical custody of the minor child. The parties were not in agreement regarding the child's primary residence or the long-term parenting time schedule. The parties agreed that in the Interim they would maintain a "nesting" parenting time arrangement in the home.

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18.The remaining issues before the Court are legal custody and parenting time. Case law and the Indiana Parenting Time Guidelines make it clear an equal division of parenting time is not required for shared parenting time to be ordered by the Court.²

19. The minor child is a [five-year-old] little girl. Both parents want to have sole legal custody and greater parenting time than the other parent.

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31. The Court finds it is in the child’s best interests to order [Father] sole legal custody of the minor child. [Father] is ordered to discuss major decisions about the child’s education, health care, and religious training with [Mother] and consider her position, but [Father] shall have final decision-making authority.

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36. Pursuant to the parties Partial Mediated Settlement Agreement, the parties are ordered to have joint physical custody of the child.

37. [Mother] shall exercise parenting time with the minor child pursuant to the Indiana Parenting Time Guidelines, with an additional overnight on Sunday nights when she exercises weekend parenting time, as well as an overnight every week on her mid-week parenting time visit… .

Appellant’s App. Vol. II pp. 45-53 (emphases added).³ Mother now appeals.

Discussion and Decision

I. Standard of Review

[1, 2] [9] "‘Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time.’ " Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1141 (Ind. Ct. App. 2022) (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)). Trial courts are " ‘enabled to assess credibility and character through both factual testimony and intuitive discernment’, and, therefore, are ‘in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.’ " Id. (quoting Best, 941 N.E.2d at 502).

[3] [10] We also noted in Hahn-Weisz that:

there is a well-established preference in Indiana for granting latitude and deference to our trial judges in family law matters. Appellate courts are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence….

189 N.E.3d at 1141 (quoting Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016)) (...