Jun 10 2015, 8:49 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jonathan D. Harwell Denise F. Hayden
Harwell Legal Counsel LLC Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jovon R. Richardson, June 10, 2015
Appellant-Respondent, Court of Appeals Case No.
49A02-1410-DR-702
v. Appeal from the Marion Superior
Court
Joshua M. Richardson, The Honorable James B. Osborn,
Judge
Appellee-Petitioner
The Honorable Kimberly D.
Mattingly, Magistrate
Case No. 49D14-1303-DR-10821
Crone, Judge.
Case Summary
[1] Jovon R. Richardson (“Wife”) appeals the decree of dissolution dissolving her
marriage to Joshua M. Richardson (“Husband”). In the decree, the trial court
granted Husband sole legal and physical custody of the parties’ minor child,
W.R., and also granted Husband visitation with Wife’s minor daughter,
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Husband’s stepdaughter, L.O. Additionally, the trial court found Wife in
contempt for her willful interference with Husband’s parenting time and
visitation in violation of the court’s preliminary order. On appeal, Wife raises
several issues, including that the trial court abused its discretion in granting
Husband visitation with L.O. Wife argues that the trial court was without
authority to grant such visitation and that Husband failed to establish that
visitation with him is in L.O.’s best interest. Wife also asserts that the trial
court abused its discretion in finding her in contempt. Finally, Wife seeks
reversal of the trial court’s custody order regarding W.R., claiming that the trial
court was biased against her and that the custody arrangement ordered by the
court was requested by neither party. We affirm the trial court in all respects.
Facts and Procedural History
[2] Wife gave birth to a daughter, L.O., on August 16, 2003. Robert Osborne
(“Biological Father”) is L.O.’s father. Wife filed a petition to establish
paternity and, on April 27, 2006, the Marion Circuit Court entered its order
establishing paternity in Biological Father and granting custody of L.O. to
Wife. The order provided for Biological Father to pay child support and for
him to exercise parenting time with L.O. “by agreement or further order of the
court.” Appellant’s App. at 59.1
1
The record indicates that both Wife and Biological Father failed to appear at the paternity hearing.
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[3] Thereafter, Wife began a relationship with Husband. Prior to the marriage,
Wife gave birth to the couple’s son, W.R., on March 29, 2007. Husband
executed a paternity affidavit at the hospital immediately following the birth,
and the parties agree that Husband is the father of W.R. Wife and Husband
were married on October 4, 2008.
[4] Husband filed for dissolution of marriage on March 21, 2013. The dissolution
court issued a preliminary order on May 21, 2013. The court’s preliminary
order provided the parties joint legal custody of W.R., with Wife having
primary physical custody. Husband was granted parenting time with W.R.
pursuant to the Indiana Parenting Time Guidelines. Finding that Husband has
a “very significant relationship” with L.O. and that L.O. “considers [Husband]
her father,” the court concluded that it was in L.O.’s best interests for Husband
to have visitation with L.O. consistent with his parenting time with W.R. “so
that the children can stay together.” Id. at 17.2 On March 14, 2014, Husband
filed a petition for contempt against Wife alleging that she twice willfully
interfered with his parenting time and visitation with W.R. and L.O. in
violation of the court’s preliminary order.
2
We note that the parties and the dissolution court appear to use the terms “parenting time” and “visitation”
interchangeably when referring to the time that Husband may spend with L.O. However, only parents may
be awarded parenting time; visitation, on the other hand, may be awarded to an unrelated third party, such as
a stepparent, under certain circumstances that we discuss more fully later in our decision. See M.S. v. C.S.,
938 N.E.2d 278, 286 (Ind. Ct. App. 2010). Accordingly, we will appropriately refer to that portion of the
dissolution decree as a visitation order and not a parenting time order.
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[5] A final dissolution hearing was held on July 31, 2014, and a decree of
dissolution was issued on September 10, 2014. Aside from the property
division, the trial court awarded Husband sole legal and physical custody of
W.R., and Wife was granted parenting time. Specifically, the court concluded
that this custody arrangement was in W.R.’s best interests because “Wife’s
testimony in court demonstrated that she is unable to appropriately co-parent
[W.R.] with Husband due to her anger.” Id. at 8. Regarding ten-year-old L.O.,
the trial court noted that during the marriage, Husband provided financial,
emotional, physical, and educational support to his stepdaughter and that he
has been a de facto custodian and the male adult role model in her life.
Accordingly, the trial court found and ordered in relevant part as follows:
Wife shall assure that [L.O.] also spends time with Husband on the
weekends that [W.R.] is also with Husband. Husband has filed to
intervene in the paternity action regarding [L.O.]. This court has
jurisdiction over Wife and orders her to deliver [L.O.] to Husband’s
home to spend time with him and [W.R.] on weekends when [W.R.] is
present with Husband. The parties shall insure that the children spend
holidays together as much as possible. [L.O.’s] biological father has
not been consistently involved in her life and she regards Husband as
her father, and refers to him as her father.… In this case, there is no
[parenting] time exercised by the biological father. The only father
that [L.O.] has ever known is Husband.
Id.
[6] The trial court also found Wife in contempt of its preliminary order due to her
willful interference with Husband’s parenting time and visitation as alleged in
his contempt petition. Wife now appeals the dissolution court’s visitation order
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regarding L.O., the court’s contempt finding, and the custody order regarding
W.R. We will state additional facts in our discussion as necessary.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion in
granting Husband visitation with L.O.
[7] Wife challenges the dissolution court’s decision to grant Husband visitation
with her daughter, and his stepdaughter, L.O. In matters of child custody and
visitation, foremost consideration must be given to the best interests of the
child. Lindquist v. Lindquist, 999 N.E.2d 907, 911 (Ind. Ct. App. 2013). “We
will generally reverse child visitation decisions only upon a showing of a
manifest abuse of discretion.” Id. We do not reweigh the evidence or
reexamine the credibility of the witnesses. Id. Instead, we view the record in
the light most favorable to the trial court’s decision to determine whether the
evidence and reasonable inferences therefrom support the trial court’s ruling.
Id.
[8] It is well established that stepparents have standing to seek visitation rights and
that a trial court has authority to grant the same. In re I.E., 997 N.E.2d 358, 366
(Ind. Ct. App. 2013) (citing Worrell v. Elkhart Cnty. Office of Family & Children,
704 N.E.2d 1027, 1028 (Ind. 1998)), trans. denied (2014); see also Francis v.
Francis, 654 N.E.2d 4, 7 (Ind. Ct. App. 1995) (dissolution court had authority to
grant and modify visitation rights with stepfather), trans. denied; Caban v. Healey,
634 N.E.2d 540, 543 (Ind. Ct. App. 1994) (although dissolution court lacked
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authority to award custody of child to stepmother, it did have authority to grant
visitation to stepmother), trans. denied (1995). A stepparent relationship is a
strong indicator that a custodial and parental relationship exists, and by
recognizing a right to visitation in nonparent third parties such as stepparents,
we have acknowledged that a child’s interest in maintaining relationships with
those who have acted in a parental capacity will sometimes trump a natural
parent’s right to direct the child’s upbringing. A.C. v. N.J., 1 N.E.3d 685, 697
(Ind. Ct. App. 2013). Thus, our supreme court has recognized that a stepparent
may be granted visitation upon establishing the existence of a custodial and
parental relationship and that visitation is in the child’s best interests. Worrell,
704 N.E.2d at 1028.
[9] As an initial matter, Wife concedes that trial courts generally have the authority
to grant visitation to a stepparent in a dissolution action, but she argues that the
trial court here lacked such authority because the Marion Circuit Court had
previously entered a judgment concerning the support, custody, and parenting
time of L.O. Wife is referring to the 2006 order establishing the paternity of
L.O. in Biological Father and granting Wife custody of L.O. with parenting
time to be determined by agreement of the parties. Wife asserts that the
dissolution court’s current visitation order conflicts with the paternity order
regarding L.O.
[10] Wife is correct that the dissolution court did not have the authority to
adjudicate any matters of custody or parenting time between Wife and
Biological Father that were already determined in the paternity case. See
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generally In re Marriage of Dall, 681 N.E.2d 718, 723 (Ind. Ct. App. 1997)
(dissolution decree can only adjudicate rights of divorcing couple; court has no
authority to affect the interests of nonparties). However, the dissolution court
did not do so. The paternity court’s prior order adjudicated support, custody,
and parenting time of L.O. as between Wife and Biological Father. The
dissolution court’s current order adjudicates visitation of L.O. as between Wife
and Husband as part of the dissolution of their marriage. The matters
addressed in each order are wholly separate, and there is no conflict between
the orders. Husband’s exercise of his right to visitation with L.O. may be only
to the detriment of Wife’s custodial time with L.O. pursuant to the dissolution
decree. Although the dissolution court found that Biological Father does not
currently exercise any parenting time with L.O., the court’s visitation order in
no way deprives Biological Father of his right or ability to do so.3 We conclude
that the dissolution court had authority to grant visitation rights to Husband as
a stepparent.
[11] Having determined that the dissolution court had authority to enter a visitation
order, and because there is no serious dispute that Husband has established a
3
Wife contends that the visitation order violates the constitutional due process rights of Biological Father
because he was not given notice of the dissolution proceedings that resulted in an order that “affected his
parental rights ….” Appellant’s Br. at 8. As noted above, the trial court’s visitation order does not affect
Biological Father’s parental rights. Moreover, Wife seeks to enforce the rights of a third person who is not a
party to this action. She may not do so. Constitutional rights are personal to an individual, and Wife cannot
claim the violation of Biological Father’s due process rights on his behalf. In re Adoption of I.K.E.W., 724
N.E.2d 245, 249 n.6 (Ind. Ct. App. 2000) (citing Kirkland v. State, 249 Ind. 305, 308, 232 N.E.2d 365, 366
(1968), and Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629 (1991)).
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custodial and parental relationship with L.O., we turn to whether the evidence
and reasonable inferences therefrom support the trial court’s ruling that the
visitation order is in L.O.’s best interests.4 The record indicates that Husband
has provided financial, emotional, physical, and educational support to L.O. for
almost eight years. He came into her life when she was only two years old, and
he is essentially the only father that she has ever known. She has always
referred to him as “dad” or “daddy.” Tr. at 17. There is no question that L.O.
has an interest in maintaining a relationship with someone who has acted in
such a significant parental capacity in her life. Moreover, the trial court’s
visitation order takes into account that Husband has been awarded sole legal
and physical custody of W.R. The visitation order provides for L.O. to spend
time with her half-brother, W.R., on the weekends that he is also with
Husband. These children have grown up together, and, going forward, it is in
both of their best interests to continue to spend time together. The evidence
4
Wife argues that she is entitled to certain presumptions in her favor in determining whether visitation with
Husband is in L.O.’s best interests. We note that when a trial court enters a decree granting or denying
grandparent visitation pursuant to Indiana’s Grandparent Visitation Statute, Indiana Code 31-17-5, it is
required to set forth findings of fact and conclusions thereon addressing: (1) the presumption that a fit parent
acts in his or her child’s best interests; (2) the special weight that must be given to a fit parent’s decision to
deny or limit visitation; (3) whether the grandparent has established that visitation is in the child’s best
interests; and (4) whether the parent has denied visitation or has simply limited visitation. In re K.I., 903
N.E.2d 453, 457 (Ind. 2009). In Schaffer v. Schaffer, 884 N.E.2d 423, 427 (Ind. Ct. App. 2008), another panel
of this Court opined in dicta that “the same parental presumption and special weight accorded to parents in
an initial grandparent visitation proceeding should be extended to parents in an initial third party step parent
visitation proceeding.” However, the Schaffer court was not asked to review an initial stepparent visitation
order and, until our supreme court declares otherwise, we decline to extend the parental presumptions
applicable to a statutory grandparent visitation proceeding to a stepparent visitation order issued pursuant to
dissolution decree. As we have already stated, a stepparent may be granted visitation upon establishing the
existence of a custodial and parental relationship and that visitation is in the child’s best interests. Worrell,
704 N.E.2d at 1028.
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and reasonable inferences support the trial court’s finding that visitation with
Husband is in L.O.’s best interests, and Wife has not shown that the trial court
abused its discretion.
Section 2 – The trial court did not abuse its discretion in
finding Wife in contempt.
[12] Wife next challenges the trial court’s order finding her in contempt. She argues
that there was insufficient evidence to support the trial court’s conclusion that
she willfully interfered with Husband’s parenting time and visitation in
violation of the court’s preliminary order. Our standard of review is well
settled.
Whether a person is in contempt of a court order is a matter left to the
trial court’s discretion. We will reverse the trial court’s finding of
contempt only where an abuse of discretion has been shown, which
occurs only when the trial court’s decision is against the logic and
effect of the facts and circumstances before it. When we review a
contempt order, we neither reweigh the evidence nor judge the
credibility of witnesses.
Akiwumi v. Akiwumi, 23 N.E.3d 734, 741 (Ind. Ct. App. 2014) (quoting Mitchell
v. Mitchell, 785 N.E.2d 1194, 1198 (Ind. Ct. App. 2003)). Wife bore the burden
of showing that her violation was not willful. Id.
[13] The trial court’s preliminary order provided for Husband to exercise parenting
time with W.R. consistent with the Indiana Parenting Time Guidelines and that
it was in L.O.’s best interests to spend time with Husband consistent with
W.R.’s time so that the children could stay together. Husband’s petition for
contempt alleged that Wife removed both children from his care without his
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consent during his parenting time the weekend of February 1, 2014, and also
refused to allow Husband his allotted parenting time and visitation the weekend
of March 1, 2014, in violation of the trial court’s preliminary order. During the
dissolution hearing, Wife admitted to these allegations but gave the trial court
various explanations and excuses for her behavior. The trial court did not find
Wife’s excuses credible and found her interference with Husband’s parenting
time in violation of the court’s preliminary order to be willful. Wife offers this
Court the same explanations and excuses, inviting us to reweigh the evidence in
her favor, which we may not do. We conclude that the trial court did not abuse
its discretion in finding Wife in contempt of the court’s preliminary order.
Section 3 – Wife has failed to demonstrate that the trial judge
was biased.
[14] Wife asserts that we should reverse the portion of the trial court’s order
regarding custody of W.R. because the trial judge was biased against her. The
law presumes that a trial judge is unbiased. Carter v. Knox Cnty. Office of Family
& Children, 761 N.E.2d 431, 435 (Ind. Ct. App. 2001). To overcome that
presumption, the party asserting bias must establish that the trial judge has a
personal prejudice for or against a party. Id. Clear bias or prejudice exists only
where there is an undisputed claim or the judge has expressed an opinion on the
merits of the controversy before him or her. Id. “Adverse rulings and findings
by the trial judge do not constitute bias per se. Instead, prejudice must be
shown by the judge’s trial conduct; it cannot be inferred from his [or her]
subjective views.” Id. (citations omitted). Said differently, a party “must show
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that the trial judge’s action and demeanor crossed the barrier of impartiality and
prejudiced” that party’s case. Flowers v. State, 738 N.E.2d 1051, 1061 (Ind.
2000).
[15] Wife directs us to various portions of the record which she claims support a
finding that the trial judge was personally biased against her. Among other
things, Wife accuses the trial judge of being “combative” with her during her
testimony, improperly commenting on her mental stability, and stating that her
behavior was not age-appropriate. Appellant’s Br. at 15. Additionally, Wife
complains that the trial judge did not treat one of her pretrial motions fairly and
that the judge also improperly sustained an objection by Husband’s counsel
regarding the relevancy of a line of questioning.
[16] As our supreme court recently noted, “We afford trial judges ample ‘latitude to
run the courtroom and maintain discipline and control of the trial.’” In re J.K.,
No. 49S02-1505-JC-260, slip op. at 5 (Ind. May 12, 2015) (quoting Timberlake v.
State, 690 N.E.2d 243, 256 (Ind. 1997)). During bench trials, judges have
considerable discretion to question witnesses sua sponte to aid in the factfinding
so long as the judge maintains an impartial manner and refrains from acting as
an advocate for either party. Id. After reviewing the record regarding Wife’s
claims of bias, we conclude that Wife has failed to show that the trial judge’s
actions or demeanor here crossed the barrier of impartiality. First, we find no
merit in Wife’s assertions regarding the judge’s unfair treatment of her pretrial
motions or the court’s evidentiary rulings. As far as the judge’s comments
during trial, we observe that Wife exhibited emotional, irrational, and
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uncooperative behavior, often giving evasive and equivocal answers to clear
and direct questions. The trial judge intervened to admonish Wife, to maintain
control of the trial, and to aid in the factfinding necessary to determine the best
interests of the children. Wife has not demonstrated that the trial judge was
biased against her.
Section 4 – The trial court did not abuse its discretion in
entering a custody arrangement not requested by the parties.
[17] Finally, Wife contends that the trial court abused its discretion in granting
Husband sole legal and physical custody of W.R. although neither Husband nor
she requested that custody arrangement. Wife cites no authority, as there is
none, for the proposition that a trial court is precluded from entering a custody
arrangement not specifically advanced by either party. As we have already
noted, the trial court’s foremost consideration in custody matters is the best
interests of the child. Lindquist, 999 N.E.2d at 911. Wife makes no argument
that the custody arrangement entered by the trial court is not in W.R.’s best
interests. The trial court’s decree of dissolution is affirmed in all respects.
[18] Affirmed.
Brown, J., and Pyle, J., concur.
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