MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Aug 31 2016, 8:00 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael H. Michmerhuizen Nicholas J. Hursh
Barrett McNagny LLP Paul R. Sturm
Fort Wayne, Indiana Shambaugh, Kast, Beck &
Williams, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Marriage of: August 31, 2016
Court of Appeals Case No.
David A. Anzelmo, 17A03-1512-DR-2170
Appellant-Respondent, Appeal from the Dekalb Superior
Court
v. The Honorable Monte L. Brown,
Judge
Elizabeth M. Anzelmo, Trial Court Cause No.
Appellee-Petitioner. 17D02-1011-DR-323
Najam, Judge.
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Statement of the Case
[1] David A. Anzelmo (“Father”) appeals the trial court’s denial of his Motion to
Continue a custody modification hearing where the court granted Elizabeth M.
Anzelmo (“Mother”) sole legal custody of their two children. At the same
hearing, the court found Father in contempt of court due to Father’s failure to
pay child support and for extracurricular expenses. Father raises the following
issues for our review:
1. Whether Father was prejudiced by the denial of his request
for a continuance.
2. Whether the trial court abused its discretion when it
modified custody and parenting time.
[2] We affirm in part and reverse in part.
Facts and Procedural History
[3] On October 1, 2010, Mother filed a petition for dissolution of marriage against
Father. On January 26, 2012, the parties entered into a Mediated Marital
Settlement (“the Settlement”). The Settlement provided, in relevant part, that
the parties would have joint legal custody of their minor children, with Mother
having primary physical custody. The Settlement also allowed Father parenting
time with the children pursuant to the Indiana Parenting Guidelines, with the
following additions: one overnight visit on weekdays, one extra weekday visit,
and alternate weekends extended by one day. On May 2, the parties entered
into a Stipulation for Court Order to Counsel and Mediate Child Issues,
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whereby the parties stipulated that, prior to seeking assistance from the Court,
the parties would seek counseling with Reverend Dr. Thomas Smith regarding
issues associated with parenting time. The dissolution court accepted that
stipulation (“the stipulation”).
[4] On March 19, 2015, Mother filed a Verified Information for Rule to Show
Cause (“March 19 Rule to Show Cause”) in which she asserted that Father had
refused to pay both his child support obligations and his portion of the
children’s extracurricular expenses. On April 14, Mother filed another Rule to
Show Cause (“April 14 Rule to Show Cause”) in which she asserted that Father
had failed to abide by parenting time exchange stipulations. The trial court
scheduled both Rules to Show Cause for a hearing for June 15.
[5] On June 3, Father asked his counsel to withdraw, and Father’s counsel filed his
motion to withdraw with the trial court. On June 10, the court granted that
motion. On June 11, Father filed a letter with the court requesting a
continuance for the June 15 hearing date due to lack of legal representation.
The court granted Father’s request for a continuance and rescheduled the
hearing for August 5.
[6] On June 24, Mother filed a Verified Petition to Modify Custody and
Respondent’s Parenting Time (“Petition to Modify Custody”), which the court
also scheduled for hearing on August 5. About three weeks after Mother’s
filing, on July 13 Father contacted Attorney Linda Peters Chrzan and requested
that she represent him. However, she informed him that, because of a prior
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commitment, she would be unable to represent him on the August 5 hearing
date. Chrzan also informed Father that, even if she were available to represent
him, less than thirty days would not be sufficient time for her to prepare for a
contested custody hearing. Since Father had a desire to be represented by
Chrzan, Chrzan sent an email to Mother’s counsel on July 17 and stated that
Father had contacted her to be his counsel, but that she was unavailable on
August 5. She requested that Mother’s counsel agree to reset the hearing
following mediation consistent with the Indiana Parenting Time Guidelines.
Chrzan followed up with Mother’s counsel on July 20 and 23. Mother’s
counsel did not respond until July 23, when he advised Chrzan that Mother did
not agree to continue the hearing.
[7] On July 29, Father filed a letter with the court in which he requested a
continuance due to Chrzan’s scheduling conflict (“Motion to Continue”).
However, the trial court denied his request on July 31. On August 5, Father
appeared pro se and Mother appeared with counsel. At the hearing, Father
renewed his request for a continuance, but the court denied it.
[8] On September 1, the trial court issued an order in which it denied the April 14
Rule to Show Cause. In regards to the March 19 Rule to Show Cause, the
court found that Father had refused to pay his child support and his portion of
the extracurricular expenses. Therefore, the trial court found Father in
contempt and ordered him to pay his obligations within sixty days of the
contempt order. Finally, in regards to the Petition to Modify Custody, the
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court entered the following relevant findings of fact, conclusions thereon, and
judgment:
11. That with regard to the Petitioner’s Petition to Modify
Custody and Parenting Time, the Court makes the
following findings and conclusions:
(a) That Petitioner no longer agrees that joing legal
custody is in the best interest of the parties’ minor
children;
(b) That the communication between Petitioner and
Respondent has deteriorated from the date said
agreement was entered into and specifically has
deteriorated further since August 20, 2014, to the
point where it is largely ineffective between the two
parties;
(c) That the evidence established that the children’s
homework is not being properly completed when
with Respondent;
(d) That the exchange of the children for parenting time
purposes is often time[s] hostile and [the children]
are frequently not exchanged as agreed upon; and
(e) That the Court finds there is a substantial change in
more than one of the factors the Court may consider
pursuant to I.C. 31-17-2-8.
12. That the Court finds that a modification of the Custody
and Parenting Time Order heretofore entered is in the best
interest of the parties’ minor children.
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13. That the Custody Order heretofore entered is modified and
the Petitioner is immediately granted the sole legal and
sole physical custody of the parties’ minor children.
14. That the Parenting Time Order heretofore entered is
modified immediately and Respondent is now granted
parenting time with the parties’ minor children as so
provided for in the Indiana Parenting Time Guidelines,
specifically, section 2(D)(1), a copy of which Parenting
Time Guidelines are attached hereto[,] incorporated
herein[,] and made a part hereof.
15. That the exchange of the children for parenting time
purposes shall occur as provided for at paragraph 1(c) of
the Mediated Stipulation filed on August 20, 2014.
16. That both parties are admonished that[,] unless otherwise
agreed to in writing (which can include e-mail and text
messaging)[,] said exchange shall be completed in a timely
manner as provided for in the Parenting Time Guidelines.
Appellant’s App. at A-022-23.
[9] On September 28, Father, by counsel, filed a Motion to Correct Error and
Request for a New Trial on the grounds that the court had erred when it denied
his Motion to Continue. Father asserted that the trial court violated his due
process rights in its failure to allow him to obtain new counsel and that the
modification of custody was contrary to the children’s best interests and not
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supported by the record. Furthermore, he also contended that six weeks1 was
not sufficient time to prepare for a contested custody trial and that the finding of
contempt was in error. This appeal ensued.
Discussion and Decision
Denial of Motion to Continue
[10] Father first asserts that the trial court erred when it denied the Motion to
Continue. Our standard of review for a denial of a motion for a continuance is
well-settled:2
The decision to grant or deny a motion for a continuance is
within the sound discretion of the trial court. We will reverse the
trial court only for an abuse of that discretion. An abuse of
discretion may be found on the denial of a motion for
continuance when the moving party has shown good cause for
granting the motion. A trial court abuses its discretion when it
reaches a conclusion which is clearly against the logic and effect
of the facts or the reasonable and probable deductions which may
be drawn therefrom. If good cause is shown for granting the
motion, denial of a continuance will be deemed to be an abuse of
discretion.
F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012) (citations and
quotations omitted).
1
Mother filed Petition to Modify Custody on June 24, which was six weeks prior to the hearing date.
2
This appeal ensues from a Motion to Correct Error regarding the denial of Father’s Motion to Continue.
The standard of review for a Motion to Correct Error is also an abuse of discretion. Allstate Ins. Co. v.
Hennings, 827 N.E.2d 1244, 1250 (Ind. Ct. App. 2005).
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[11] Father contends that the trial court abused its discretion when it denied his
Motion to Continue. Specifically, Father contends that he showed good cause
for the continuance because he was did not have counsel, was diligent in
attempting to hire new counsel, and did not have sufficient time to prepare for
hearing once he did find new counsel. He also maintains that he was
prejudiced by the denial of his Motion to Continue because he had to proceed
pro se during the August 5 hearing.
[12] “The withdrawal of legal counsel does not entitle a party to an automatic
continuance, and the moving party must show diligence in procuring counsel.”
Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292, 311 (Ind. Ct. App. 2000)
(citations omitted). In Riggins, we held that the appellant did not diligently seek
new counsel when over eight months had elapsed between the time his first
attorney withdrew and the trial, and over five months had elapsed between the
time his second attorney withdrew and the trial, yet the appellant had contacted
only eight attorneys in that entire time period. Id. at 311-12. We also noted
that the appellant did not obtain counsel until thirty days before trial and, even
then, counsel’s representation was conditioned on the appellant obtaining a
sixty-day continuance. Id. Under such circumstances, we held that the trial
court did not abuse its discretion in denying the appellant’s motion for a
continuance. Id. at 312.
[13] Similarly, in Gunshekar v. Grose, 915 N.E.2d 953, 956 (Ind. 2009), the
appellants’ attorney filed a motion to withdraw eight weeks before trial. Id. at
954. The trial court granted the attorney’s motion six weeks before trial. Id.
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Eleven days before trial and nearly forty-five days after counsel had withdrawn,
the appellants requested a continuance for more time to hire new counsel. Id.
The trial court denied the request, and our supreme court held that the trial
court’s judgment was not an abuse of its discretion. Id. at 956. In particular,
the court reasoned that the appellants neither said nor did anything to indicate
that they had diligently sought new counsel “during the eight weeks after
attorney Martin withdrew.” Id.
[14] In Danner v. Danner, 573 N.E.2d 934, 936-37 (Ind. Ct. App. 1991), trans. denied,
which involved a modification of the decree of marriage dissolution and a
protective order, the appellant sought a continuance after he had obtained new
counsel six weeks before the hearing. On appeal from the trial court’s denial of
that request, the appellant contended that he was prejudiced by the denial of his
motion because six weeks was not sufficient time for his new counsel to obtain
experts. Id. at 937. This court disagreed and affirmed the trial court’s
judgment. Id. This court reasoned that appellant’s “new counsel entered his
appearance six weeks before the hearing which was sufficient time to secure
experts.” Id.
[15] The present case is similar to both Riggins and Gunshekar in that Father’s
attempts to secure new counsel were not diligent. After Father contacted
Chrzan on July 13 and she informed him that she was unavailable for the
August 5 hearing, Father did not make any other attempts to secure new
counsel over the ensuing 23 days. Furthermore, the trial court had accepted the
withdrawal of Father’s initial counsel on June 10, 2015, one week after Father
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had asked his initial counsel to withdraw, and Mother filed the Petition to
Modify Custody on June 24. Yet, Father did not attempt to contact any
attorneys at all until he contacted Chrzan on July 13, less than one month
before the August 5 hearing. Finally, Father’s contention that six weeks was
insufficient time to prepare for a custody hearing and conduct discovery is no
more meritorious here than it was in Danner.
[16] In sum, Father cannot demonstrate that the trial court abused its discretion
when it denied his Motion to Continue. Accordingly, we affirm the trial court’s
judgment.
[17] Father also appeals both the order modifying legal custody and the order
modifying parenting time. We address each in turn.
Modification of Custody
[18] Father asserts that the trial court erred when it modified the parties’ custody.
Our standard of review in a custody modification is for abuse of discretion.
Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010) (citations
omitted). However, when the trial court enters findings and conclusions
pursuant to Indiana Trial Rule 52, as it did here, our standard of review is as
follows:
First, we determine whether the evidence supports the findings
and second, whether the findings support the judgment. In
deference to the trial court’s proximity to the issues, we disturb
the judgment only where there is no evidence supporting the
findings or the findings fail to support the judgment. We do not
reweigh the evidence, but consider only the evidence favorable to
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the trial court’s judgment. Challengers must establish that the
trial court’s findings are clearly erroneous. Findings are clearly
erroneous when a review of the record leaves us firmly convinced
a mistake has been made. However, while we defer substantially
to findings of fact, we do not do so to conclusions of law.
Additionally, a judgment is clearly erroneous under Indiana Trial
Rule 52 if it relies on an incorrect legal standard. We evaluate
questions of law de novo and owe no deference to a trial court’s
determination of such questions.
Estate of Kappel v. Kappel, 979 N.E.2d 642, 651-52 (Ind. Ct. App. 2012)
(quotation marks and citations omitted).
[19] In Julie C., 924 N.E.2d at 1259-60, we held that the trial court must consider
three statutes when modifying legal custody: Indiana Code Sections 31-17-2-8,
-15, and -21. Indiana Code Section 31-17-2-21 states in relevant part:
(a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the
factors that the court may consider under section 8 . . . of
this chapter.
(b) In making its determination, the court shall consider the
factors listed under section 8 of this chapter.
Indiana Code Section 31-17-2-8 contains factors that the trial court must
consider when making an initial custody order, namely:
(1) The age and sex of the child.
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(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the
child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the
child’s best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.
(8) Evidence that the child has been cared for by a de facto
custodian . . .
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Finally, Indiana Code Section 31-17-2-15 contains factors that are pertinent
specifically to joint legal custody:
(1) the fitness and suitability of each of the persons awarded joint
custody;
(2) whether the persons awarded joint custody are willing and
able to communicate and cooperate in advancing the child's
welfare;
(3) the wishes of the child, with more consideration given to the
child’s wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial
relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the
home of each of the persons awarded joint custody.
[20] Here, the trial court found that modification of custody from joint legal custody
to sole legal custody with Mother was in the best interests of the children and
that there had been a substantial change in the factors contained in Indiana
Code Section 31-17-2-8. The court based that finding on: the wishes of
Mother, the deterioration of communication between the parties, the children’s
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failure to properly complete homework when with Father, and the hostility or
lack of agreement regarding parenting time exchanges. However, the trial court
did not enter a finding that the deterioration of communication and hostility
were solely attributable to Father. Rather, the court admonished both parties to
timely complete exchanges of the children unless they can agree otherwise.
[21] The parties’ mutual failure to cooperate cannot provide a basis for changing
legal custody from joint to solely with Mother. As we have explained in
another case involving a petition to modify joint custody:
Generally, cooperation or lack thereof is not appropriate grounds
for switching custody. Were a court to consider it in determining
a change of custody, it would impermissibly punish a parent for
noncompliance with a custody agreement. This is in accordance
with the supremacy of the child’s interest in permanence and
stability over a parent’s preferences. To do otherwise would be
ignoring the very interest courts are trying to protect. Only in
cases of egregious violations of custody where the child’s welfare
is at stake should a court modify a custody order. The
noncustodial parent must show something more than isolated
acts of misconduct by the custodial parent to warrant a
modification of [a] child custody order; the noncustodial parent
must show that the changed circumstances regarding the
custodial parent’s stability and the child’s well-being are
substantial and continuing.
Pierce v. Pierce, 620 N.E. 2d 726, 730 (Ind. Ct. App. 1993) (citation and
quotations omitted), trans. denied. Pierce involved a petition to modify the same
type of custody arrangement we have here, namely, joint legal custody, with
one parent having sole physical custody. Id. at 728. Yet, even in a joint
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custody arrangement, the Pierce court determined that a deterioration in
parental communication is not a substantial change warranting custody
modification unless it is so egregious as to adversely affect the child’s welfare.
Id. at 730. Pierce, unlike the instant case, did involve such egregious
misbehavior. Id. at 731.
[22] Here, Mother failed to show substantial changes warranting modification of
custody. Rather, Mother’s contentions essentially amount to allegations of
insufficient communication between the two parties. For example, at trial,
Mother’s counsel stated that, if Father had simply respected her and the pick-up
times, drop-off times, and children’s extracurricular activities, Mother would
not have sought custody modification. Tr. at 104-05. However, those
annoyances do not amount to continuous acts of misconduct that place the
children’s welfare at risk. See id.
[23] In addition, although Mother contends that the children’s homework was not
being completed while in Father’s care, she did not present any evidence that
indicates that the children were struggling academically. In Hayley v. Hayley,
771 N.E.2d 743, 748-49 (Ind. Ct. App. 2002), Father demonstrated a substantial
change in his child’s educational needs when Mother showed a lack of
commitment in assisting their child, who was struggling academically, with her
schoolwork at home. Mother told the Court Appointed Special Advocate that
the school would take care of her child’s academic difficulties. Id. However,
Father worked with the child on her schoolwork when she stayed for the
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weekend and she usually scored better on her spelling tests because they studied
together. Id. There are no comparable circumstances in this case.
[24] Here, there was no egregious custody violation nor was the children’s welfare at
stake. Pierce, 620 N.E. 2d at 730. We must conclude that the trial court relied
upon an incorrect legal standard and, thus, clearly erred when it found that
there had been a substantial change in circumstances warranting modification
of custody pursuant to Indiana Code § 31-17-2-8. Kappel, 979 N.E.2d at 651-52.
Accordingly, we reverse the trial court’s modification of custody.
Modification of Parenting Time
[25] Mother sought not only modification of custody, but also modification of
parenting time. When a custodial parent seeks to modify a parenting time
order, as Mother did here, she must show that the modification would serve the
best interest of the children. I.C. § 31-17-4-2. “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.” Id. Moreover, “[d]espite the statute’s use of
the word ‘might,’ for over twenty-five years Indiana courts have interpreted the
statute to require evidence that parenting time ‘would’ (not ‘might’) endanger or
impair the physical or mental health of the child.”3 Patton v. Patton, 48 N.E.3d
3
Thus, Indiana law requires a showing that there “would be” harm to the children from the original
parenting time order, which Mother has not demonstrated here.
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17, 21 (Ind. Ct. App. 2015) (quoting Perkinson v. Perkinson, 989 N.E.2d 758, 763
(Ind. 2013)). Thus, “a parent’s visitation rights shall not be restricted unless the
court finds that the visitation might endanger the child’s physical health or
significantly impair his emotional development.” Hartzell v. Norman T.L., 629
N.E.2d 1292, 1295 (Ind. Ct. App. 1994) (emphasis original).
[26] Here, the trial court did not make any finding that Father’s visitation pursuant
to the original parenting time order would endanger the children’s physical
health or significantly impair their emotional development, and no evidence
was presented to support such a finding. Therefore, the trial court committed
clear error in modifying Father’s parenting time with the children.
[27] The dissent would hold that the trial court’s reduction of Father’s parenting
time to the minimum contained in the parenting guidelines was not a
“restriction” of his parenting time pursuant to Indiana Code Section 31-17-4-2,
citing Clary-Ghosh v. Ghosh, 26 N.E.3d 986, 991 (Ind. Ct. App. 2015), trans.
denied. However, that case does not cite any other Indiana case that supports
that unique reading of the statute. Rather, Indiana cases have consistently held
that a trial court is required to enforce a parenting time order, even if the order
allows parenting time above the miminum required under the guidelines, in the
absence of any finding that parenting time would endanger or significantly impair
the child. See, e.g., Williamson v. Creamer, 722 N.E.2d 863, 866 (Ind. Ct. App.
2000) (quoting Hartzell, 629 N.E.2d at 1295); see also Patton, 48 N.E.3d at 21.
Thus, under long-standing Indiana case law, a parenting time order—even one
in excess of the minimum parenting time allowed under the guidelines—cannot
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be changed unless there is a finding that the parenting time allowed under the
order would endanger the child’s physical health or significantly impair his
emotional development. Hartzell, 629 N.E.2d at 1295.
[28] Affirmed in part and reversed in part.
Robb, J., concurs.
Crone, J., concurs in part and dissents in part with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
In re the Marriage of: Court of Appeals Case No.
17A03-1512-DR-2170
David A. Anzelmo,
Appellant-Respondent,
v.
Elizabeth M. Anzelmo,
Appellee-Petitioner.
Crone, Judge, concurring in part and dissenting in part.
[29] I agree with my colleagues that the trial court did not abuse its discretion in
denying Father’s motion to continue, and therefore I concur as to that issue. As
to the custody issue, however, I respectfully dissent.
[30] “[I]n custody disputes, the trial court is often called upon to make Solomon-like
decisions in complex and sensitive matters. The trial court is in a position to
see the parties, observe their conduct and demeanor, and hear their testimony;
therefore, its decision receives considerable deference in an appellate court.”
Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App. 2002) (citations and
quotation marks omitted), trans. denied. “Custody modification lies within the
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sound discretion of the trial court, and the decision will be reversed only upon a
showing of manifest abuse of discretion. Such an abuse occurs when the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before the court.” L.C. v. T.M., 996 N.E.2d 403, 407 (Ind. Ct.
App. 2013) (citation omitted). Modifications of parenting time are also
reviewed for abuse of discretion. Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind.
Ct. App. 2012). We consider only the evidence favorable to the judgment and
the inferences flowing therefrom. Id.
[31] With respect to both custody and parenting time, trial courts are uniquely
positioned to observe which arrangements work and which do not. In my view,
they should be given great latitude to craft proactive solutions in order to
protect the best interests of the children involved. Trial courts should not be
forced to wait until children suffer actual harm before they can take steps to
resolve disagreements between the parties.
[32] Pursuant to Indiana Code Section 31-17-2-21, a court may not modify a child
custody order unless the modification is in the child’s best interests and there is
a substantial change in one or more of the factors that the court may consider
under Indiana Code Section 31-17-2-8. That statute sets forth a nonexhaustive
list, stating that the court “shall consider all relevant factors, including” the eight
factors mentioned in the majority’s analysis. Ind. Code § 31-17-2-8 (emphases
added). The trial court found that the communication between Mother and
Father had “deteriorated … to the point where it is largely ineffective between
the two parties[.]” Appellant’s App. at 22. The majority characterizes this as a
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“mutual failure to cooperate” and concludes that it “cannot provide a basis for
changing legal custody from joint solely to Mother.” Slip op. at 14. I
respectfully disagree on both counts.
[33] The record strongly suggests that Father bore the primary responsibility for the
deterioration in communication. The court found that Father “knowingly,
willfully, and intentionally” refused to pay child support and reimburse Mother
for the children’s extracurricular activity expenses, which undoubtedly
poisoned the well and prompted Mother to file the March 19 Rule to Show
Cause. Appellant’s App. at 20. Also, Mother testified that Father was
repeatedly late for parenting exchanges, refused to take the children to their
extracurricular activities, refused to allow her to schedule the children’s medical
appointments during his parenting time, and failed to help the children
complete their homework assignments.
[34] More important, Mother testified that she never calls Father “because it always
ends up in a confrontation” and that she could not “communicate those major
issues of [her] children, specifically issues regarding their medical decisions or
educational decisions with [Father.]” Tr. at 51. Indiana Code Section 31-9-2-
67 provides that persons awarded joint legal custody “will share authority and
responsibility for the major decisions concerning the child's upbringing,
including the child’s education, health care, and religious training.” Due to the
significant deterioration in the parties’ ability to discuss major decisions
concerning the children’s upbringing, the joint legal custody arrangement had
essentially become unworkable and therefore was no longer in the children’s
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best interests. The parties had tried it, it did not work, and the trial court, in my
opinion, appropriately remedied the situation.
[35] Even if the deterioration in communication between Mother and Father could
fairly be described as a “mutual failure to cooperate,” Pierce does not prohibit a
modification of joint legal custody on that basis. Notwithstanding the dicta
quoted by the majority, the upshot of Pierce’s holding is that a parent with
primary physical custody and joint legal custody may not be rewarded for being
uncooperative by asking for and receiving sole legal custody based on the lack
of cooperation. See Pierce, 620 N.E.2d at 731 (“A parent may not sow seeds of
discord and reap improved custody rights.”). That is not the factual scenario in
this case. It is important to note that “joint custody” may be either joint legal
custody or joint physical custody and that the difference between modifying
joint legal custody and physical custody is a subtle yet important distinction. 4
When the parties in a joint legal custody situation are mutually responsible for a
failure to cooperate on major decisions concerning the children’s upbringing,
the trial court must decide which parent should be awarded sole legal custody
4
See Pierce, 620 N.E.2d at 731 (“The trial court found that [father] behaved in such way as to deprive
[mother] of an opportunity to materially participate in the children’s upbringing. If the reasonableness of joint
custody were not at issue, this course of conduct would not support a change in custody.”) (emphasis added). The
majority’s interpretation of Pierce may be due to the imprecise language and internal inconsistencies in the
Pierce court’s analysis or the fact that the custody modification statute in effect when Pierce was decided stated
that a court could modify a custody arrangement only upon “a showing of changed circumstances so
substantial and continuing as to make the existing custody order unreasonable.” Ind. Code § 3-1-11.5-22(d)
(1993). The legislature removed the unreasonableness requirement in 1994, and thus “a petitioner is no
longer required to show that an existing custody order is unreasonable before a court will modify it.” Julie C.,
924 N.E.2d at 1258. Regardless, the decision of whether a deterioration in parental communication is
sufficiently “egregious as to adversely affect the child’s welfare,” as the majority puts it, is a call better left to
the trial court than the Court of Appeals.
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so that those decisions will no longer be subject to intractable disputes. To
allow such uncooperativeness to continue would be detrimental to the
children’s best interests. Assuming for argument’s sake that Mother and Father
were mutually responsible for the deterioration in communication, I cannot
conclude that the trial court abused its discretion in awarding sole legal custody
to Mother based on the record before us.
[36] As for the trial court’s modification of Father’s parenting time, 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.
Father claims that the trial court’s reduction of his parenting time to the
standard amount provided by the Indiana Parenting Time Guidelines
amounted to a restriction of his parenting time rights and that the trial court
erred in restricting his rights without making a finding of endangerment or
impairment. I disagree. See Clary-Ghosh, 26 N.E.3d at 991 (holding that
reduction of parenting time to standard amount described in Guidelines did not
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amount to restriction of parenting time rights for purposes of Ind. Code § 31-17-
4-2).5
[37] Further, I believe that the trial court did not abuse its discretion in reducing
Father’s parenting time, given Mother’s testimony that she had to pick up
Father’s slack in several critical areas. The alternative of requiring actual
damage or harm to the children prior to remedying this situation does not make
sense. Father has the standard amount of parenting time allowed by the
Guidelines. Parenting time is often a fluid situation that requires occasional
tweaking, and awarding Mother more time was in the children’s best interests
and well within the trial court’s discretion. I would affirm the trial court in all
respects.
5
The majority states that Clary-Ghosh “does not cite any other Indiana case that supports that unique reading
of the statute.” Slip op. at 17. In my view, this neither supports nor detracts from the logic of the reasoning
used by the Clary-Ghosh court. While not dispositive, our supreme court had an opportunity to correct the
Clary-Ghosh court’s alleged misinterpretation of Indiana Code Section 31-17-4-2 on transfer but declined to do
so. As for the cases cited by the majority, it bears mentioning that both Hartzell and Williamson were decided
before the Indiana Parenting Time Guidelines became effective in 2001 and that Patton did not involve the
reduction of parenting time to the standard amount described in the Guidelines. See Patton, 48 N.E.3d at 21
(denial of request for unsupervised visitation).
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