In Re the Marriage of: R.L.R-H v. J.M.R. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 16 2015, 7:09 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jonathan M. Young Robin R. Craig
Law Office of Jonathan M. Young, P.C. Evansville, Indiana
Newburgh, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re the Marriage of: October 16, 2015
R.L.R-H., Court of Appeals Case No.
Appellant-Respondent, 82A01-1501-DR-31
Appeal from the Vanderburgh
v. Superior Court
The Honorable David O. Kelley,
J.M.R., Special Judge
Appellee-Petitioner Trial Court Cause No.
82D04-0712-DR-01169

Bailey, Judge.

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 Case Summary
[1] R.R. (“Mother”) appeals an order permitting J.R. (“Father”) to exercise

parenting time with Jo.R. (“Child”) and finding Mother in contempt of court.

We affirm.

Issues
[2] Mother presents two issues for review:

I. Whether the trial court abused its discretion by allowing
Father parenting time; and

II. Whether the trial court abused its discretion by finding
Mother in contempt of court.

Facts and Procedural History
[3] Father and Mother separated in 2007, when Child was two years old. Father

petitioned for dissolution of the marriage. An interim order provided that

Father was to exercise parenting time with Child without overnight visits. After

Mother filed an emergency petition for modification, the parties agreed that

Father would exercise parenting time without his friend, J.F., present.

[4] Initially, Father exercised parenting time in four-hour blocks. According to

Father, he was followed, contacted by telephone, subjected to accusations, and

“tormented” during the visits and child exchanges. (Tr. at 17.) On one

occasion, Mother telephoned the police to allege that Father had “smacked”

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 her. (Tr. at 18.) When police responded, Father produced a recording of his

interaction with Mother. The police declined to make an arrest.

[5] The visits continued, but Father began to bring another adult or a teenager with

him on each visit. One such companion was B.R., the fourteen-year-old son of

J.F.

[6] The parties were divorced in November of 2008. Two weeks later, Mother filed

an emergency petition seeking the suspension of Father’s parenting time.

Mother alleged that B.R. had touched Child inappropriately and Father had

failed to protect Child. The parties reached an agreement that Father’s

parenting time would take place in Evansville and not in the presence of B.R.

[7] Mother initiated a Child Protective Services investigation, which was closed

with the accusation unsubstantiated. Neither Father nor B.R. was ever charged

with a criminal act.

[8] Three months after filing the motion to suspend Father’s parenting time,

Mother filed a motion for restriction of his parenting time. In 2009, Father was

twice permitted to exercise parenting time at the offices of Child’s therapist.

Thereafter, the therapist informed Father that she did not offer facilities for

supervised parenting time. At this juncture, Father discontinued his attempts to

exercise parenting time with Child.

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[9] On September 29, 2010, the trial court entered an order distributing the marital

property and providing: “Court is to be advised as to the progress on Child’s

counseling before modifying any visitation orders.” (App. at 7.)

[10] On August 6, 2013, Father filed a petition to modify parenting time. He also

requested that Mother be held in contempt of court for refusal to comply with

the property division order. On April 25, 2014, the trial court conducted a

hearing at which Father, Mother, and Child’s therapist testified. Child’s

therapist testified that Child had experienced physical symptoms due to anxiety

about seeing Father and had reported that Father “let people do bad things to

[her].” (Tr. at 75.)

[11] On December 23, 2014, the trial court entered an order that Father have

parenting time with Child on alternate weekends, preceded by six one-hour

supervised visits at the Parenting Time Center. Although the weekend visits

were to be unsupervised, the trial court cautioned: “for his own protection, the

Father may elect to have any other responsible person present during his

parenting time.” (App. at 13.)

[12] Mother was found in contempt of court for failure to comply with the 2010

property division order. The trial court imposed a sixty-day sentence of

incarceration, which Mother could avoid by surrendering to Father a shotgun

that had belonged to his deceased father and by paying Father the market value

of twenty-one items of personal property awarded to him. Mother was also

ordered to pay $900.00 of Father’s attorney’s fees. Mother now appeals.

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 Discussion and Decision
Parenting Time
[13] Mother contends that the trial court abused its discretion by allowing Father to

exercise parenting time despite the recommendation of Child’s therapist to the

contrary.

[14] “In all visitation controversies, courts are required to give foremost

consideration to the best interests of the child.” Marlow v. Marlow, 702 N.E.2d

733, 735 (Ind. Ct. App. 1998), trans. denied. We review parenting time decisions

for an abuse of discretion. Id. A trial court abuses its discretion when its

decision is clearly against the logic and effect of the facts and circumstances

before the court or if the court has misinterpreted the law. Sexton v. Sedlak, 946

N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.

[15] “The right of non-custodial parents to visit with their children is a ‘“sacred and

precious privilege.”’ Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App.

2003) (quoting McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. Ct. App.

1997), trans. denied). “Ideally, a child should have a well-founded relationship

with each parent.” Id. Accordingly, Indiana Code section 31-17-4-2 provides:

The court may modify an order granting or denying parenting
time rights whenever modification would serve the best interests
of the child. However, the court shall not restrict a parent’s
parenting time rights unless the court finds that the parenting
time might endanger the child’s physical health or significantly
impair the child’s emotional development.

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[16] Even though the statute uses the word “might,” this Court has previously

interpreted such language to mean that a court may not restrict parenting time

unless that parenting time “would” endanger the child’s physical health or

emotional development. D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App.

2009). A party who seeks to restrict a parent’s visitation rights bears the burden

of presenting evidence justifying such a restriction. Id. The burden of proof is

by a preponderance of the evidence. In re Paternity of W.C., 952 N.E.2d 810,

816 (Ind. Ct. App. 2011).

[17] Here, the trial court made no finding of endangerment, concluding that Mother

had not met her burden of proof. Indeed, the trial court implicitly found that

Mother’s prior accusations against Father lacked credibility, as the court

suggested that Father protect himself in the future by including others in the

parenting time visits.

[18] Mother now insists that Child’s wishes and best interests were disregarded and

she points to testimony that Child had regressed physically and emotionally

because of fear of seeing Father. Purportedly, Child had nausea and vomiting

and was sleeping in Mother’s bed because Child was “worried about an

upcoming court date.” (Tr. at 75.) However, Mother ignores evidence that

Child learned of the impending court proceedings from someone having access

to Child and this could not have included Father. Mother also ignores the

abundant evidence that she has consistently thwarted Father’s efforts to visit

with Child. Although Child’s therapist testified that she detected no signs of

coaching and opined that visits with Father would cause Child mental or

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 physical harm, the court was under no obligation to adopt this opinion. See

Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct. App. 2000) (“the fact-finder is

not required to accept the opinions of experts regarding custody”).

[19] Mother essentially urges that we reweigh the evidence and credit her testimony

that Father would likely fail to keep Child safe. We will not do so. Mother has

failed to demonstrate that the trial court abused its discretion when Father was

permitted to exercise his statutory right to parenting time.

Contempt Finding
[20] At the hearing, Father testified that he had yet to receive many items of

personal property allocated to him in the 2010 property division order. He

testified that he had made repeated attempts to contact Mother, without

success. Father had obtained police assistance and retrieved some of the

personal property from Mother’s yard. Other items of his property were visible

behind a locked fence across the street or on his former brother-in-law’s lot.

The trial court found Mother in contempt, ordered her incarceration, and

provided that she could purge herself of the contempt by producing an heirloom

gun and paying Father the value of the other items. Mother claims that she was

not properly held in contempt.

[21] A party that is willfully disobedient to a court’s order may be held in contempt

of court. Wilson v. State, 988 N.E.2d 1211, 1218 (Ind. Ct. App. 2013). Whether

a person is in contempt of a court order is a matter left to the trial court’s

discretion, and we will reverse a finding of contempt only where an abuse of

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 discretion has been shown. Geesy v. Geesy, 959 N.E.2d 256, 258 (Ind. Ct. App.

2011). Mother does not argue that the trial court misapprehended the facts and

circumstances before it. Rather, Mother attacks the 2010 order as ambiguous.

[22] Mother argues that “there can be no willful disobedience of an order as vague

as the one at issue herein.” (Appellant’s Br. at 13.) According to Mother, the

order failed to specify “who should initiate a property exchange, how it should

occur, when it is to occur.” (Appellant’s Br. at 12.) Mother did not appeal the

2010 order. She did not seek clarification from the trial court. When Mother

testified at the December 2014 hearing, she did not claim that she was confused

about the order. Rather, she testified that she had received no calls, voice

mails, or text messages from Father, and that she had retained none of Father’s

property. According to Mother, certain items had been loaned by Father to his

siblings, Father had retrieved some property, and Mother’s mother apparently

gave some property to Father. When confronted with photographic evidence of

a camper located at her brother’s lot, Mother contended that it was merely

similar to one awarded to Father.

[23] In short, Mother’s argument is merely an attempt to collaterally attack a 2010

order. The trial court was presented with substantial evidence to support a

finding that Mother willfully refused to comply with a court order. She fails to

show that the trial court abused its discretion by finding her in contempt of

court.

Conclusion
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[24] The trial court acted within its discretion by permitting Father to exercise

parenting time with Child and in finding Mother in contempt of court.

[25] Affirmed.

Baker, J., and Mathias, J., concur.

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