Steele-Giri v. Steele

• Court: Indiana Appellate Court
• Writing for the Court: RILEY, Judge.
• Citation: Steele-Giri v. Steele, 40 N.E.3d 513 (Ind. App. 2015)
• Decision Date: 29 July 2015
• Docket Number: No. 45A04–1412–DR–600.,45A04–1412–DR–600.
• Parties: In re the Marriage of Amy STEELE–GIRI, Appellant–Respondent, v. Brian K. STEELE, Appellee–Petitioner.

40 N.E.3d 513

In re the Marriage of Amy STEELE–GIRI, Appellant–Respondent

v.Brian K. STEELE, Appellee–Petitioner.

No. 45A04–1412–DR–600.

Court of Appeals of Indiana.

July 29, 2015.

Jill S. Swope, Sterba & Swope, LLP, Schererville, IN, Attorney for Appellant.

John M. Rhame, III, Rhame & Elwood, Portage, IN, Attorney for Appellee.

RILEY, Judge.

STATEMENT OF THE CASE

[1] Appellant–Respondent, Amy Steele–Giri (Mother), appeals the trial court's order denying her petition for modification of custody of the minor child, J.S., and rule to show cause in favor of Appellee–Petitioner, Brian K. Steele (Father).

[2] We reverse and remand.

ISSUES

[3] Mother raises three issues on appeal, which we consolidate and restate as the following two issues:

(1) Whether the trial court abused its discretion by denying Mother's request for modification of child custody; and

(2) Whether the trial court abused its discretion by denying Mother's verified petition for rule to show cause.

FACTS AND PROCEDURAL HISTORY¹

[4] On April 24, 2007, the trial court entered a Decree of Dissolution of the marriage between Father and Mother. In its Decree, the trial court adopted the recommendation of the Guardian ad Litem (GAL) and instituted joint legal and physical custody over the parties' minor child, J.S., born on October 20, 2004. In 2009, Mother contemplated relocating to Sacramento, California, to follow her now-husband, Dr. Satyendra Giri (Dr. Giri), an interventional cardiologist, who had been offered a three-year employment contract in the area. At that time, Father had been co-habitating with his now-fiancee, Brenda Guth (Guth), for the previous two years, and was employed by Cabela's on a flexible schedule. Guth was a stay-at-home mom. GAL Christine Miller (GAL Miller), who had been appointed by the trial court as J.S.'s GAL, recommended in a written report, issued on July 24, 2009, that J.S. “should remain with [Father] and [Guth] to begin her schooling” with “joint legal custody and a duty to confer [ ] on any significant issues regarding health, education and religion.” (Appellant's App. pp. 41, 42). Pursuant to GAL Miller's report, the trial court affirmed an Agreed Order modifying custody, support and parenting time on September 28, 2009. Following the Agreed Order, Father was given physical custody of J.S. with both parties sharing legal custody. With respect to parenting time, the entered Order provided, in pertinent part:

12. The parties agree that thereafter, Mother shall be entitled to parenting time in the same fashion as afforded above every four (4) to six (6) weeks.

13. The parties agree that Mother shall have parenting time for the week of [J.S.'s] Spring Break beginning the Friday school is let out until the Sunday prior to the return.

14. The parties agree that Mother shall also have summer parenting time beginning the first full week of June and ending three weeks prior to school resuming.

15. The parties stipulate that during this time, Father may have reasonable parenting time in California with [J.S.].

16. The parties agree that Mother is responsible for planning, reserving and paying for all airfare costs associated with transporting the child to and from California. Mother shall email Father with specific dates and times of future travel and Father shall ok or request a day/time change within 24 hours of Mother's email. Mother shall make every effort to have the trips planned and airfare purchased at least thirty (30) days prior to the event.

17. The parties stipulate that Mother shall have parenting time with [J.S.] when Mother is in Indiana. Mother shall provide notice to Father at least 48 hours in advance of her visit.

(Appellant's App. p. 46).

[5] In January 2013, Mother and Dr. Giri's son, J.S.'s half-brother, was born. Dr. Giri's contract in Sacramento had ended and the family decided to relocate to Coos Bay, in Oregon, where Dr. Giri had been offered a new position pursuant to a ten-year contract. Mother remained a stay-at-home mom.

[6] Father lost his position at Cabela's, and corresponding health insurance on J.S., in 2010. Because he did not inform Mother, GAL Miller reminded him that he needed to keep “mom in the loop.” (Transcript p. 14). Around April of 2010, Father commenced a new position with Beta Steel, where he works 12–hour shifts. At the same time, Guth started a fulltime position with the Portage school system. As a result of Father's schedule, J.S. was enrolled in before school care at the YMCA and after-school care at the Boys & Girls Club. Father did not inform Mother of these arrangements.

[7] In September 2010, J.S. began Kindergarten. After testing, the school placed J.S. in the Title I Extended Day Kindergarten Program as she needed “extended time to master the Indiana Academic Standards for kindergarten.” (Respondent's Exh. B). Father never informed Mother of this decision. Following first grade, J.S.'s school advised Father that “based on [J.S.'s] current level of academic progress in 1st Grade,” attendance during summer school was advised. (Respondent's Exh. B). Father did not inform Mother of this recommendation, nor did he enroll J.S. in summer school or otherwise get J.S. the necessary tutoring. Similarly, following second grade, J.S.'s school notified Father that J.S. had “not made sufficient academic progress during the school year. In order to provide your child with time to become proficient with grade level expectations, summer school is necessary. It is therefore, MANDATORY that [J.S.] attend summer school.” (Respondent's Exh. B). Although Father was notified twice of this summer school requirement, Father did not advise Mother of this decision, nor did Father enroll J.S. in summer school. During the 2013–14 academic year, J.S. was enrolled in third grade. Her end-of-year skill report shows some important formative skills “Not Mastered,” including the areas of “Word Recognition, Fluency, and Vocabulary Development”; “Writing—Applications”; “Number Sense”; and “Measurement.” (Respondent's Exh. C). After 5 months in third grade, J.S. tested at Grade Equivalent 3.1—i.e. “a level equal to that of a typical third grader after the first month of the school year”—for reading. (Respondent's Exh. C). In the course of the third grade, J.S. participated in the ISTEP. She achieved a 450 in English/language arts (where a passing grade is scored between 417 and 780) and 448 in math (where a passing grade is scored between 413 and 735).

[8] Guth completed J.S.'s school registration forms and the forms needed for extended care options before and after school. On these forms, Mother was not listed as a contact person, nor was her contact information included. Specifically, on the before-school care registration, Guth was identified as “Parent/Guardian” with grandmother as the emergency contact; neither biological parent was mentioned on the form. (Respondent's Exh. D).

[9] Because Father has physical custody, J.S., aged 9 at the time of the current proceedings—resides at Father's residence with Guth and Guth's two children from a prior relationship—son A.G., aged 16 at the time of the current trial proceedings, and daughter M.G., aged 14 at the current trial proceedings. J.S. does not feel “welcomed” in the house by M.G. (Appellant's App. p. 68). Both girls share a room and fight “like siblings,” with at times M.G. “physically shoving” J.S. (Tr. pp. 10, 11). GAL Miller testified that after several years of sharing a bedroom, M.G. now “just basically ignores” J.S. (Tr. p. 59). Throughout the years, J.S.'s feelings towards M.G. never changed.

[10] Father acknowledged that Guth can “be too strict with each of the children, especially [J.S.].” (Appellant's App. p. 63). Guth noted that “[M.G.] and [Father] do not get along well” and she has requested Father “to be more sensitive to [M.G.] because she thinks that [M.G.] looks at Father's and J.S.'s relationship with full out jealousy.” (Appellant's App. p. 77); (Tr. p. 60). During the weekends when Father has to work, J.S. remains with the paternal grandparents and frequently spends the night. At a certain point, J.S. “used to resist going home at the end of the weekends because of [M.G.].” (Appellant's App. p. 75). Although Father's family is close, the paternal grandparents refuse to accept Guth and do not welcome her. As a result, Father and Guth spend their holidays apart.

[11] On August 15, 2013, Mother filed a verified petition for modification of custody and a verified petition for rule to show cause. On April 3, 2014, GAL Miller filed her report, concluding in pertinent part:

I have reviewed the records subpoenaed by [Mother's counsel] and it would reflect that on many occasions, in fact, probably most occasions, [J.S.] remains at the Boys and Girls Club well after 4:30[p.m.] On an average about five (5) times a month, she remains at the Boys and Girls Club until after 6:30 p.m. and on some occasions has been there after 8:00 at night. Her days can be very long, beginning between 6:00 a.m. when [Guth] awakens her and ending when Father or [Guth] finally pick her up from the Boys and Girls Club.

Whereas, the change in circumstances in Mother's home that she is a stay-at-home mother and has given birth to [J.S.'s] biological brother presents a different situation for [J.S.], where she can wake up in the comfort of her own bed, have breakfast with her family, and leave for school directly from the breakfast table and not make at least two (2) bus exchanges in a 9 to 12 hour day.

It also troubles me that at [Father's] house J.S. has been forced to share a bedroom with her Father's girlfriend's daughter, with whom she has not been able to happily coincide for all these years. I would never suggest that a child be placed in the home because there is more money available; however, there is no doubt that [J.S.] would have her own room in [Dr. Giri] and [Mother's] 4–bedroom home.

When [Father] speaks of being punished, I can understand what he is saying. [Father] does

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