MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the Feb 09 2015, 9:34 am
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE
Michael L. Turner
Ossian, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael L. Turner, February 9, 2015
Appellant, Court of Appeals Case No.
90A05-1409-DR-447
v. Appeal from the Wells County
Circuit Court
The Honorable Kenton W. Kiracofe
Jennifer D. Pence, Case No. 90C01-0509-CR-49
Appellee.
Mathias, Judge.
[1] Michael L. Turner (“Father”) appeals the order of the Wells Circuit Court
denying his motion to hold his ex-wife Jennifer D. Pence (“Mother”) in
contempt for failing to abide by the trial court’s earlier order regarding
parenting time.
[2] We affirm.
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Facts and Procedural History
[3] Father and Mother were married in March 2000 and had two children together:
a daughter, M.T., born in July 2000; and a son, G.T., born in July 2004. The
parties later divorced, and pursuant to a settlement agreement, the parents had
joint legal custody of the children, but Mother was the primary physical
custodian. Father had visitation with the children pursuant to the Indiana
Parenting Time Guidelines (“IPTG”). The parties’ relationship was
acrimonious, and at some point, M.T. began to live with Father and his wife.
On January 24, 2014, the trial court entered an order modifying custody so that
Mother became the sole legal custodian and primary physical custodian of the
children, with Father still maintaining visitation pursuant to the IPTG.
[4] Accordingly, M.T. began to live with Mother and her husband. M.T. had
trouble adjusting to the new custody arrangement, did not get along with either
Mother or her step-father, and threatened to hurt herself. After M.T. made
these threats, Mother took M.T. to a hospital where she received psychiatric
care and counseling for several days, which included one weekend where M.T.
would normally have been scheduled to be visiting with Father. M.T. was
eventually released from the hospital, and Father requested that Mother allow
him to have M.T. an extra weekend “make up” for the time she was in the
hospital. Mother refused, and the two exchanged heated text messages on the
subject.
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[5] Father also learned that after the children’s school day ended, they took the
school bus home and spent up to two hours by themselves before Mother
returned home from work. Father believed that when he was available, he
should be able to pick up the children from school and exercise additional
parenting time with them until Mother came home from work. Mother also
rejected this request, claiming that M.T. was old enough to stay home briefly
and watch the children and that on other nights the children had other
activities. The parties again exchanged heated text messages on this issue.
[6] On April 4, 2014, Father filed a petition to hold Mother in contempt for failing
to abide by the trial court’s parenting time order. The trial court held a hearing
on the matter on June 5, 2014, and entered an order that same day denying
Father’s petition. On July 7, 2014, Father filed a motion to reconsider in which
he repeated his claims that the trial court should have held Mother in contempt
and also requested that the trial court clarify its order and reduce its reasoning
to writing. The trial court denied Father’s motion on August 19, 2014. Father
now appeals.
Discussion and Decision
A. Contempt
[7] Father first argues that the trial court erred in denying his petition to hold
Mother in contempt.1 A determination of whether a party is in contempt of
1
Mother has failed to file an Appellee’s Brief, and we will not undertake the burden of developing an
argument on her behalf. See GEICO v. Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014). Instead, we may
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court is a matter left to the sound discretion of the trial court, and we reverse
only where an abuse of that discretion has occurred. Heagy v. Kean, 864 N.E.2d
383, 386 (Ind. Ct. App. 2007). On appeal, we will not reweigh the evidence or
assess the credibility of the witnesses, and we consider only the evidence in the
light most favorable to the judgment. Id. To hold a party in contempt for
violation of a court order, the trial court must find that the party acted with
willful disobedience. Id. Where, as here, the trial court has declined to find a
party in contempt, we will reverse only where there is no rational basis for the
trial court’s action. Id. (quoting Clark v. Clark, 404 N.E.2d 23, 27 (Ind. Ct. App.
1980)).
[8] Here, we are unable to say the trial court had no rational basis for the decision
declining to hold Mother in contempt for failing to allow Father “make up”
time for the weekend when M.T. was in the hospital. To the contrary, the trial
court’s decision had support in the record. Mother did not intentionally deprive
Father of his weekend with M.T.; instead, the child was in the hospital after
making suicidal threats. Both Father and Mother visited M.T. in the hospital as
often as possible. Although many of Mother’s text messages with Father were
curt and rude, we cannot say that Mother’s decision not to allow Father to have
a “make up” weekend for the one he missed while M.T. was in the hospital
required the trial court to hold her in contempt.
reverse the trial court’s judgment if the appellant’s brief presents a case of prima facie error. Id. This “prima
facie error rule” protects the court on appeal and takes from us the burden of controverting arguments
advanced for reversal, a duty which remains with the appellee. Id. Yet even under the prima facie error rule,
we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is
required, and if the appellant is unable to meet the burden of establishing prima facie error, we will affirm. Id.
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[9] We reach a similar conclusion with regard to Father’s request to exercise
additional parenting time during the time period, up to two hours, from when
the children were released from school until Mother came home after work.
Father bases his argument on Parenting Time Guideline I(C)(3), which states:
When it becomes necessary that a child be cared for by a person other
than a parent or a responsible household family member, the parent
needing the child care shall first offer the other parent the opportunity
for additional parenting time, if providing the child care by the other
parent is practical considering the time available and the distance
between residences. The other parent is under no obligation to provide
the child care. If the other parent elects to provide this care, it shall be
done at no cost and without effecting child support. The parent
exercising additional parenting time shall provide the necessary
transportation unless the parties otherwise agree.
[10] Father claims that this after-school time falls within this provision and that he
should be given the option of caring for the children from the time they get off
school until Mother comes home after work; he also claims that Mother’s
refusal to allow him to do so made her in willful violation of the trial court’s
order. We disagree.
[11] The parties’ contentions in this case clearly demonstrate why trial courts have
considerable discretion in family court matters. The trial court has been
involved with this case since the parents divorced in 2006, and noted the
inability of the parents to effectively communicate or cooperate with regard to
their children. The trial court also noted that Father lives approximately twenty
minutes away from where the children now live and go to school. Thus, the
court was concerned that the actual amount of time that Father would be able
to spend with the children would be relatively short. Moreover, Mother did not
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want Father at her home to either pick up or drop off the children when she was
not there. Also, the children were not always at home by themselves for two
hours. M.T. has counseling every other Monday, and both children are
involved in other after-school activities.
[12] We commend Father for his willingness to do all that he can to spend even a
small amount of time with his children, and it is disappointing that Father and
Mother’s relationship has deteriorated to this point. However, given the history
of animosity between the parties, the trial court was well within its discretion to
conclude that Mother’s decision not to offer Father this opportunity for a small
amount of additional parenting time was not willful disobedience of its
parenting time order.
B. Motion to Reconsider/Motion to Correct Error
[13] Father also claims that the trial court erred in denying his “motion to
reconsider,” which was filed after the trial court’s denial of his petition to hold
Mother in contempt. A motion requesting that the trial court revisit its decision
after the entry of a final appealable order must be treated as a motion to correct
error. Waas v. Ill. Farmers Ins. Co., 722 N.E.2d 861, 863 (Ind. Ct. App. 2000)
(citing Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998)). A trial
court has wide discretion to correct errors, and we will reverse only for an abuse
of that discretion. Williamson v. Williamson, 825 N.E.2d 33, 44 (Ind. Ct. App.
2005). The trial court abuses its discretion only when its decision is against the
logic and effect of the facts and circumstances before it and the inferences that
may be drawn therefrom. Id.
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[14] For the same reason that we conclude that the trial court did not abuse its
discretion in denying Father’s petition to hold Mother in contempt, we
conclude that the trial court did not abuse its discretion in denying Father’s
motion to reconsider, which was, in essence, a motion to correct error.
C. Failure to Reduce Decision to Writing
[15] Father also claims that the trial court erred in not reducing to writing its
reasoning denying his petition to hold Mother in contempt. Father does not
claim that the trial court was required to enter formal findings of fact and
conclusions thereon but does claim that the trial court should have explained
why it, in Father’s opinion, deviated from the IPTG.
[16] In support of his argument, Father cites Shelton v. Shelton, 840 N.E.2d 835 (Ind.
2006), in which the court noted that Subsection 2 of the Scope of Application
provision in the IPTG provided at that time that “[a]ny deviation from these
Guidelines by either the parties or the court must be accompanied by a written
explanation indicating why the deviation is necessary or appropriate in the
case.” Id. at 835. This provision has been moved to Subsection 3 and now
states:
There is a presumption that the Indiana Parenting Time Guidelines are
applicable in all cases. Deviations from these Guidelines by either the
parties or the court that result in parenting time less than the minimum
time set forth below must be accompanied by a written explanation
indicating why the deviation is necessary or appropriate in the case. A
court is not required to give a written explanation as to why a parent is
awarded more time with the child than the minimum in these
guidelines.
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Ind. Parenting Time Guidelines, Preamble § (C)(3).
[17] Here, however, the issue before the trial court was not whether there had been
any deviation from the minimums set forth in the IPTG. The issue was
whether Mother willfully disobeyed the trial court’s parenting time order that
incorporated the IPTG. As noted above, the trial court was well within its
discretion to conclude that she had not done so. Father could not raise what
essentially amounts to a new issue—whether the trial court had to reduce its
reasoning to writing—for the first time in his motion to correct error. Troxel v.
Troxel, 737 N.E.2d 745, 752 (Ind. 2000).
Conclusion
[18] The trial court did not abuse its discretion in denying Father’s petition to hold
Mother in contempt for failing to abide by the trial court’s parenting time order,
nor did the trial court abuse its discretion in denying Father’s motion to
reconsider, which must be treated as a motion to correct error. Lastly, the trial
court did not err in failing to reduce to writing its reasons for not finding
Mother in contempt.
[19] Affirmed.
Najam, J., and Bradford, J., concur.
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