Samuel S. Longanbach v. Odessa J. Pawloski (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 12 2018, 6:33 am

court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT
Nicholas J. Hursh
Fort Wayne, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Samuel S. Longanbach, April 12, 2018
Appellant-Petitioner, Court of Appeals Case No.
76A03-1709-JP-2176
v. Appeal from the Steuben Circuit
Court
Odessa J. Pawloski, The Honorable Allen N. Wheat,
Appellee-Respondent Judge
The Honorable Randy Coffey,
Magistrate
Trial Court Cause No.
76C01-1210-JP-398

Altice, Judge.

Case Summary

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[1] Samuel Longanbach (Father) appeals from the trial court’s denial of his petition

for modification of parenting time with respect to Odessa Pawloski (Mother)

and his son, E.W.L. (Child).

[2] We reverse and remand.

Facts & Procedural History

[3] Child was born on August 24, 2012, and Father’s paternity was established

shortly thereafter. The parties entered into an agreement regarding custody,

support, and parenting time (Agreed Order), which the trial court approved on

December 31, 2012. Pursuant to the Agreed Order, the parties shared joint

legal custody of Child and Mother had primary physical custody. With regard

to parenting time, the Agreed Order provided in relevant part:

6. The parties agree that Father will be entitled to parent with
[Child] as mutually agreed, and consistent with the current
schedule: Wednesdays from appx. 5:15 p.m. to 9 p.m. and
on Sundays from Noon to 6 p.m.

7. If at some point, this schedule needs to be modified, and
the parties are unable to mutually agree upon a new
schedule, the parties agree that Father is entitled to, at
minimum, parenting time based on the Indiana Parenting
Time Guidelines, consistent with the minor child’s age.

Appendix at 12.

[4] The parties gradually expanded Father’s parenting time as Child aged, with

overnights beginning sometime after Child was one year old. By July 2015,

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 Father regularly exercised overnight parenting time based on an alternating

schedule – Wednesday through Friday in one week and Tuesday through

Wednesday and Friday through Sunday the next week. Thus, Father had five

overnights with Child over each two-week period.

[5] In September 2016, Mother and Father discussed modifying the schedule due to

Child starting preschool. They had multiple conversations but could not agree

on a schedule. As a result, Mother unilaterally implemented a new schedule

until they could agree on one together. This schedule reduced Father’s regular

parenting time and provided him with a weekly midweek overnight and

alternating weekends. Thus, Father received slightly more parenting time than

the minimum provided by the Indiana Parenting Time Guidelines (the

Guidelines), with the Guidelines being the default under the Agreed Order.

[6] On September 16, 2016, Father filed a petition for modification of parenting

time. He sought modification of the Agreed Order from 2012 and requested

that the parties “share equally physical custody and parenting time”. Appendix

at 24. After mediation failed, the matter proceeded to a final evidentiary

hearing on April 12, June 7, and July 5, 2017.

[7] Mother acknowledged that Father was a very good father but testified that she

did not believe sharing equal physical custody was in Child’s best interests at

such a young age. She testified that she did not feel Child was emotionally

mature enough to be away from her, his older sister, and his dogs that much.

Mother detailed prior issues with Child being anxious about and protesting

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 going from Mother’s care to Father’s, and she noted that exchanges have

improved since the most-recent change in parenting time. Mother testified that

Child needed a “stable, consistent weekly schedule”. Transcript of April 12, 2017

Hearing at 12.

[8] While Mother did not agree with Father’s request for equal parenting time, she

testified that Father should receive more time than he was currently receiving.

Accordingly, she proposed a parenting time schedule that she believed would be

in Child’s best interests. This proposed schedule was in excess of the

Guidelines and would provide Father with weekly midweek overnights on

Wednesdays (Wednesday at 5:15 p.m. through 6:00 p.m. on Thursday) and

alternating weekends (after school Friday through Monday morning).

[9] At the conclusion of the hearing, Mother’s counsel asked the trial court to

“modify parenting time consistent with mother’s request, which does allow

[Father] additional overnights above and beyond the Indiana Parenting Time

Guidelines.” Transcript of July 5, 2017 Hearing at 111. Counsel continued:

Mother agrees that he’s a good father. Mother acknowledges
that time with father is appropriate. She’s simply stressing to the
Court that the child is too young to do week on, week off. He’s
not mature enough emotionally. He has a lot of changes in his
life that would make it difficult for him to adjust.

Id. Despite Mother’s agreement that it was in Child’s best interests to modify

parenting time and grant Father time in excess of the Guidelines, the trial court

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 issued an order on July 11, 2017, denying modification. After an unsuccessful

motion to correct error, Father now appeals.

Discussion & Decision

[10] Mother has not filed an appellee’s brief. As a result, we will not undertake the

burden of developing arguments on her behalf and will reverse if Father

establishes prima facie error. See Duty v. CIT Group/Consumer Fin., Inc., 86

N.E.3d 214, 215 (Ind. Ct. App. 2017). Prima facie, in this context, means at

first sight, on first appearance, or on the face of it. Id.

[11] The evidence establishes that Child has two loving and involved parents, as

well as supportive extended family. The parties have a history of co-parenting

well together, and the instant disagreement is hopefully just a minor blip on the

radar of an otherwise model co-parenting situation. At the hearing, both

Mother and Father agreed that Child’s best interests would be served by a

modification of the existing parenting time order and that such modification

should provide Father with time beyond the minimum set out in the

Guidelines.1 Nothing in the record establishes otherwise.

[12] It appears that the trial court agreed with Mother that the modification sought

by Father – equal parenting time – was not in Child’s best interests. Father

does not dispute that this was within the trial court’s discretion. We agree with

1
Ind. Code § 31-14-14-2 provides that a court may modify a parenting time order “whenever modification
would serve the best interests of the child.”

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 Father, however, that the trial court erred in its outright refusal to modify

parenting time.2 On remand, we direct the trial court to issue a modified

parenting time order consistent with the schedule proposed by Mother at the

hearing.

[13] Judgment reversed and remanded.

Najam, J. and Robb, J., concur.

2
Although we reverse based on the evidence, we note that the alternative argument presented by Father
based on I.C. § 31-14-14-1(a) is without merit and represents a fundamental misunderstanding of the law in
this regard.

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