Williams v. Wilson
| Decision Date | 23 August 2012 |
| Docket Number | No. 41A01–1111–DR–541.,41A01–1111–DR–541. |
| Parties | Krista C. (Wilson) WILLIAMS, Appellant, v. Philip S. WILSON, Appellee. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HEREAppeal from the Johnson Superior Court; The Honorable Cynthia S. Emkes, Judge; Cause No. 41D02–0506–DR–214.
Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, attorney for appellant.
The marriage of Krista Williams (“Mother”) and Philip Wilson (“Father”) was dissolved by the Johnson Superior Court. The issues presented in this appeal arise from Mother's refusal to allow Father parenting time with their minor child, and Mother's request for a child support modification. Specifically, Mother raises the following issues in this appeal, which we restate as: 1) whether the trial court abused its discretion when it found Mother in contempt of court; 2) whether the trial court abused its discretion when it ordered Mother to transport the child to and from Father's supervised visits with the child; 3) whether the trial court abused its discretion when it ordered the parties to share the tax exemption for the parties' child; 4) whether the trial court abused its discretion when it failed to retroactively modify Father's child support obligation to the date that Mother filed her petition for modification of child support; and 5) whether the trial court abused its discretion when it denied Mother's request for attorney fees.
We conclude that the trial court did not abuse its discretion in 1) finding Mother in contempt of court, 2) ordering the parties to alternate the tax exemption for M.W. each year, 3) declining to order a retroactive child support modification, and 4) denying Mother's request for attorney fees. We also conclude that if Father's parenting time is still under supervision, we direct the trial court to reconsider its decision to order supervised visitation on Saturday or Sunday because Mother's ability to transport M.W. on weekends is limited due to her employment. Therefore, we remand this case for the trial court to reconsider its decision regarding the timing of supervised visitation and affirm in all other respects.
Mother and Father have one child, M.W., who was born in January 2001. The parties' marriage was eventually dissolved and Mother was awarded physical custody of M.W., but the parties were ordered to share joint legal custody.
In 2005, Mother filed an emergency motion to modify parenting time and Father filed a motion for contempt. Although the specific circumstances that lead to Mother's motion are not included in the record before us, it seems to have involved a situation between M.W. and D.S., another child living in Father's neighborhood.
In its order on those pleadings, the trial court concluded that Mother proved “by a greater weight of the evidence that unless some restrictions are placed on” Father's parenting time, M.W.'s “physical health might be endangered.” Appellant's App. at 27. “Specifically, unless [Father] is strictly admonished to take all necessary steps to not allow any contact between [D.S.] and [M.W.], there is a risk that [M.W.] may be physically or emotionally harmed by the actions of [D.S.].” Id. The trial court ordered Father to prohibit any contact between M.W. and D.S. and “must not allow the children to be within 30 feet of one another.” Id. at 28. In its order, the trial court declined to find Mother in contempt for withholding Father's parenting time Id.
Approximately four years later, on or about April 1, 2009, Father's fiancee's brother, Brian McCubbins was released from jail and moved into Father's home. Father did not know the specific crimes McCubbins had been convicted of but allowed him to reside in his home. Father did not tell Mother that McCubbins was living in his home. In August 2009, M.W. told Father that McCubbins tucked her into bed “sometimes,” which “freaked ... out” Father. Transcript at 39. That same day, Father told McCubbins that he could no longer reside in his home. Father learned that McCubbins had been arrested shortly thereafter, but did not know what charges were pending against him.
On or about September 23, 2009, Mother received a phone call from a detective with the Greenwood Police Department. The detective was investigating an allegation that McCubbins had molested a child residing in Father's neighborhood and in so doing, he received information that M.W. had possibly been molested as well. The detective contacted Mother and the Department of Child Services. M.W. was interviewed and law enforcement officials ultimately determined that McCubbins had not molested M.W. McCubbins was charged with sexually battering Father's neighbor's child and he is currently incarcerated.
Mother has not allowed Father to exercise his parenting time with M.W. since the molestation investigation began, on some date in September 2009. And on October 23, 2009, she filed a petition for modification of decree of dissolution. In the petition, Mother alleged that Father's supervision of M.W. is “extremely lax” and “he does not adequately restrict [M.W.'s] contact with persons who may pose a danger to her.” Appellant's App. at 30. Mother stated that she had restricted Father's “access to” M.W. and requested that his parenting time be “severely curtailed.” Id. Mother later filed an amended petition and requested that Father's parenting time be modified and supervised by a court-appointed agency. Mother also filed a petition for modification of child support.
On December 3, 2009, Father filed a petition for contempt against Mother arguing that Mother should be held in contempt for refusing to allow Father to exercise his parenting time. In the latter months of 2009, Father unsuccessfully attempted to contact M.W. and/or exercise his parenting time on three or four occasions. Father made no such attempts in early 2010. However, on June 14, 2010, Father filed a motion for an emergency hearing on his petition for contempt. A hearing on Father's emergency petition was not held until January 19, 2011, more than seven months after filing. Because the hearing could not be completed in one day, the trial court scheduled a hearing for February 2, 2011. That hearing was canceled due to a weather-related issue, and the hearing on the parties' pleadings was not completed until June 14, 2011, one year after Father's petition had been filed.
On June 14, 2011, the trial court issued an order increasing Father's child support to $126 per week, but took the issue of retroactive modification under advisement. On September 13, 2011, the trial court issued its order holding Mother in contempt of court, but also granting her petition for supervised parenting time and modification of child support. The trial court made the following finding of fact concerning contempt:
5. The Court finds Mother intentionally and willfully denied Father parenting time far in excess of what would be a reasonable time to restrict the same based on the issues related to Brian McCubbins. Considering the thorough investigation by the Greenwood Police Department and the Division of Child Services and the ultimate decision that there was not any evidence of abuse of [M.W.], Mother should have allowed parenting time to resume herein in early 2010. In large part because there has been a substantial passage of time without parenting time, [M.W.] has been alienated from her Father and she no longer desires to have contact with him. The Court recognizes Mother argues to the Court that Father does not have any interest in [M.W.], her welfare, her schooling or her activities; however, the Court believes that what appears to be a lack of interest is more an inability to find information out in regard to her due to the strained communication and his inability to find out information on his own. Father should take more initiative in finding out about [M.W.'s] schooling, activities, and welfare as he is entitled to as the noncustodial parent, but his failure to robustly pursue contact with [M.W.] and his frustration with the lack of communication is understandable given the many times his attempts at contact were ignored by Mother. The Court is finding Mother in contempt, however, since the Court is ordering her to pay for all transportation costs for supervised parenting time, to share the costs of the same if supervision is still recommended after 16 weeks of therapy and to share the costs of [M.W.'s] therapy, the Court is not imposing sanctions.
Mother was granted sole legal custody of M.W. Father was granted supervised parenting time and ordered to participate in therapy with M.W. Parenting time was ordered “to increase and become unsupervised as ... recommended by the therapist/counselor.” Id. at 23.
The trial court denied Mother's motion for a retroactive support modification “due to the numerous issues herein and the cost associated with counseling and supervised parenting time that Father will be required to pay.” Id. Further, “based on the amount of support Father will be paying,” Mother was ordered to “sign IRS Form 8332 (release of right to claim exemption for dependent) during each even numbered year commencing 2012 to allow Father to [c]laim [M.W.] for state and federal income tax purposes.” Id. Finally, the trial court denied Mother's motion for attorney fees. Mother subsequently filed a motion to correct error. The trial court denied her motion without a hearing and Mother now appeals.
As an initial matter, we note that Father has not filed an appellee's brief. Accordingly, we apply a less stringent standard of review and may reverse if the...
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