In Re the Marriage of: C.E. f/k/a C.P. v. J.P. (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Dec 07 2018, 11:01 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT
Debra Lynch Dubovich
Levy & Dubovich
Merrillville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re the Marriage of: December 7, 2018

C.E., Court of Appeals Case No.
18A-DC-1440
f/k/a C.P.,
Appeal from the Lake Superior
Appellant-Respondent, Court
v. The Honorable Nanette K.
Raduenz, Special Judge
J.P., Trial Court Cause No.
45D05-1706-DC-80
Appellee-Petitioner

Baker, Judge.

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[1] C.E. (Mother) appeals the trial court’s order regarding the parenting time

arrangement between Mother and J.P. (Father). Mother argues that (1) the trial

court’s order is a de facto modification of physical custody that neither parent

requested; and (2) the parenting time arrangement is erroneous because it

increases the contact between the parents in a high conflict relationship. We

agree with Mother’s first argument. Therefore, we reverse and remand for

further proceedings.

Facts
[2] Mother and Father were married and have four children together. Two of the

children are over the age of eighteen and are not relevant to this appeal; the

other two are K.P., born in 2003, and A.P., born in 2006. Mother and Father

divorced in 2012. Their Marital Settlement Agreement, which was approved by

the trial court on February 15, 2012, provided that the parents would share joint

legal custody, was silent as to physical custody, and awarded Father parenting

time as follows: overnight parenting time every Wednesday, every other

weekend, and occasionally every other Thursday, with some extra time during

the summer months. He was credited for 149 overnights per year on the child

support worksheet; Mother had the remaining 216 annual overnights.

[3] Mother and Father have struggled to co-parent without significant conflict. A

guardian ad litem (GAL) was appointed for the children in June 2011 and

remains in place. A Level II Parenting Time Coordinator (PTC) was appointed

in March 2014 and remains on the case. Mother and Father were ordered to

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 participate in therapeutic counseling in March 2014; they complied and

continue to participate. The trial court found that “[i]t is undisputed that there

continues to be chronic anger and distrust between the parties,” that the parents

are unable to communicate in person, and that this conflict has “placed the

children’s well-being at risk,” creating “anguish and stress in the lives of the

children.” Appealed Order p. 4.

[4] After years of disagreeing about parenting time and other issues, on May 16,

2017, Mother and Father entered into a Partial Mediated Agreement. That

agreement states that the original Settlement Agreement granted “Mother

primary physical custody” of the children. Appellant’s App. Vol. II p. 86. The

Mediated Agreement resolved multiple issues, including summer parenting

time, but did not modify the physical custody arrangement as the parties

understood it to be, which was that Mother was the primary physical custodian.

[5] The trial court held a hearing that began on January 11, 2018. At that time, the

following petitions were pending:

• Father’s petition for sole legal custody and rule to show cause;
• Mother’s petition to modify legal custody and parenting time; and
• Mother’s petition for contempt citation and rule to show cause.

None of the pending petitions requested a change of physical custody, nor did

either party make that request orally.

[6] On February 22, 2018, the trial court issued an order on the pending petitions.

In pertinent part, it found as follows:

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 3. Since the entry of the [Dissolution] Decree, there has been
a substantial change in one or more of the factors that the
court may consider under I.C. § 31-17-2-8, and
modification of the existing orders is in the best interest of
the minor children.

***

5. Mother seeks sole legal and physical custody of the
children. Contrary to the allegations in his Petition,
Father testified that he believes the physical custody
arrangement is sustainable, but Father seeks the authority
to make all final decisions regarding child related issues.

6. . . . [T]he Court finds that it is in the best interest of the
minor children that the parties continue to share joint legal
custody. The same cannot be said for the shared parenting
time arrangement that has evolved since the Decree was
entered.

7. The shared parenting time arrangement is one of two
primary reasons for the high conflict relationship. There
have been numerous attempts to interpret orders and to
equalize the parties’ time with the children. The result has
been that parenting time has become a commodity. Time
has become a tangible thing and each party expects an
exact equal share, down to the minute; the focus has
somehow shifted to a parental right rather than what is
best for the children. . . .

Appealed Order p. 3-4. The trial court vacated the current parenting time

arrangement and implemented a plan wherein each parent has the children

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 seven out of every fourteen days and each parent has additional transportation

obligations during the other parent’s parenting time. Specifically:

. . . Father shall be responsible for transporting the children to all
health care related appointments and all religious training, even if
the appointment or practice is during Mother’s on-duty week. . . .

. . . Mother shall be responsible for transporting the children to
all extra-curricular activities, even if the activity or event occurs
during Father’s on-duty time.

Id. at 9-10. The trial court intended to fashion a Parallel Parenting Plan, which

may be put in place for high conflict families pursuant to the Parenting Time

Guidelines. The trial court found that no party was at fault more than the other

for the conflict, that both parties love all the children equally, and that neither

party behaved in an unreasonable or irrational manner.

[7] With respect to legal custody, the trial court found that the “second major

reason for the parties’ high conflict relationship is the parties’ inability to make

joint decisions regarding major issues in the children’s lives, such as medical

care, religious training, educational decisions and extra-curricular activities.”

Id. at 5. The trial court observed that each parent has his or her own strengths:

. . . Father, for example, is more cognizant of the financial
aspects of health care for the minor children and the importance
of traditions such as religious training. . . .

Mother, on the other hand, has a better understanding of the
children’s desires and interests regarding activities and school
functions. . . .
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 Id. at 5-6. In the end, the trial court ordered that the parties continue to share

joint legal custody and should discuss issues related to major decisions

regarding the children. But if they are unable to agree, “the custody order

should be modified to allow Father to make the final decisions regarding all

health care issues and matters involving religious upbringing. Mother should be

allowed to make the final decisions regarding education and extra-curricular

activities for the minor children.” Id. at 6.

[8] Mother filed a motion to correct error. In pertinent part, she argued that the

trial court’s order changed her role as primary physical custodian by

dramatically increasing the amount of parenting time awarded to Father—

which neither parent had requested. She also contended that the purpose of a

Parallel Parenting Plan is to decrease the amount of contact between the

parents, but that the trial court’s parenting time order actually increased the

frequency of their interactions. On June 5, 2018, the trial court denied the

motion to correct error. In pertinent part, it found that its order did not modify

physical custody:

The Decree and Marital Settlement Agreement . . . were silent as
to physical custody. The Marital Settlement Agreement awarded
the parties joint legal custody with a shared parenting
arrangement. Over a period of six years the shared parenting
arrangement went through multiple changes and/or
interpretations. The Court found that the shared parenting
arrangement that had evolved was no longer in the best interest
of the minor children.

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 Appellant’s App. Vol. II p. 16. The trial court also found that implementing a

Parallel Parenting Plan was not erroneous and that even if its plan “did create a

situation where the parties now have more contact, this does not render the

Court’s order contrary to the intent of Section IV of the Indiana Parenting Time

Guidelines.” Id. at 17. Mother now appeals.

Discussion and Decision
[9] Mother appeals the portion of the trial court’s order modifying the parenting

time arrangement. She argues that it was an improper de facto modification of

physical custody that neither parent requested and that the mechanics of the

new parenting time arrangement defeat the purpose of a Parallel Parenting

Plan.

[10] We initially note that Father did not file an appellee’s brief. When an appellee

fails to submit a brief, we do not undertake the burden of developing arguments

for him and will apply a less stringent standard of review with respect to

showings of reversible error. Julie C. v. Andrew C., 924 N.E.2d 1249, 1255 (Ind.

Ct. App. 2010). Therefore, we may reverse if the appellant establishes prima

facie error, which is an error at first sight, on first appearance, or on the face of

it. Id.

[11] When the trial court enters findings sua sponte, the specific findings will not be

set aside unless they are clearly erroneous. Id. A finding is clearly erroneous

when there are no facts or inferences drawn therefrom that support it. Id. In

reviewing the findings, we neither reweigh the evidence nor judge witness

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 credibility and will consider only the evidence and reasonable inferences drawn

therefrom that support the findings. Id.

I. Findings
[12] Before we delve into Mother’s primary arguments, we must address her

contention that several of the trial court’s findings are clearly erroneous.

[13] First:

Since the entry of the [Dissolution] Decree, there have been at
least nine orders or recommendations that have either clarified or
modified the terms of the Decree as it pertains to parenting
time . . . .

Appealed Order p. 3. The record reveals that under the terms of the original

agreement, Father had overnight parenting time every Wednesday, every other

weekend, and for some months, every other Thursday (plus one extra week in

summer), for a total of 149 overnights per year. Six years later, until the trial

court itself modified the arrangement in the order being appealed, Father’s

parenting time remained exactly the same. There were times when the parties

agreed to modify smaller, temporary items such as summer parenting time

schedules, make-up time, and the right of first refusal, but at no point was the

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 original parenting plan legally modified. Therefore, this finding was clearly

erroneous.1

[14] Second: “Mother seeks sole legal and physical custody of the children.” Id. at

4. Mother was not seeking sole or primary physical custody of the children—she

already had it. Indeed, the parties had explicitly stipulated to that fact in their

partial mediated agreement filed in May 2017, when both Mother and Father

agreed that “Mother [has] primary physical custody.” Appellant’s App. Vol. II

p. 86. Therefore, this finding was clearly erroneous with respect to physical

custody.

[15] Third: “[c]ontrary to the allegations in his Petition, Father testified that he

believes the physical custody arrangement is sustainable . . . .” Appealed Order

p. 4. Father’s petition did not make any allegations regarding physical custody,

nor did Father testify about the parties’ physical custody arrangement—because

it was not at issue. Instead, the only issue before the trial court was the legal

custody arrangement. On that issue, at the hearing, Father withdrew his

request to modify joint legal custody, explaining that “I would like to find a

way to make joint legal custody work in an efficient manner.” Tr. Vol. III p.

79. Therefore, this finding was clearly erroneous.

1
Similarly, the trial court found in its order on Mother’s motion to correct error that “[o]ver a period of six
years the shared parenting arrangement went through multiple changes and/or interpretations.” Appellant’s
App. Vol. II p. 16. This finding was clearly erroneous for the same reason stated above.

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[16] Fourth: “[t]here have been numerous attempts to . . . equalize the parties’ time

with the children.” Appealed Order p. 5. As noted above, at no point was the

parenting time arrangement modified to give Father more than 149 overnights

per year. The parties negotiated about equalizing their time with the children

during the summer months, but there was no evidence in the record that there

were any attempts to equalize or restructure their parenting time with the

children overall. Therefore, this finding was clearly erroneous.

II. De Facto Custody Modification
[17] Mother argues that the trial court’s order, which stated that each parent would

have seven days with the children in every fourteen-day period, is a de facto

modification of their physical custody arrangement that neither Mother nor

Father requested. We agree.

[18] This Court squarely addressed this issue in Julie C., in which the trial court

increased the father’s parenting time to 50% of all parenting time but claimed

that it had not modified Mother’s status as primary physical custodian. 924

N.E.2d at 1256. This Court disagreed, concluding that “when the trial court

increased Father’s parenting time to seven overnight stays during any given

two-week period, it ordered a de facto modification of custody to joint physical

custody.” Id.

[19] Here, as noted above, while the parties’ initial settlement agreement was silent

as to physical custody, it provided that Mother would have 216 overnights each

year to Father’s 149. Then, both parents stipulated in their Partial Mediated

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 Agreement that Mother had primary physical custody of the children.

Appellant’s App. Vol. II p. 86. Under these circumstances, we have little

difficulty concluding that Mother had primary physical custody of the children

leading up to the trial court’s order in this case.

[20] At no point during any of the litigation over the years has Father asked for a

modification of the parties’ physical custody arrangement. It is well established

that a modification of physical custody can only be ordered after a petition to

modify has been filed. Bailey v. Bailey, 7 N.E.3d 340, 344-45 (Ind. Ct. App.

2014) (reversing a trial court’s sua sponte modification of physical custody, also

noting that agreeing to a Parallel Parenting Plan does not amount to a

concession that the trial court could modify the physical custody arrangement).

[21] The children’s GAL agreed with Mother that the trial court’s parenting time

order was erroneous. In relevant part, the GAL’s motion to correct error states

as follows:

It appears that the Court may have been misinformed at the time
of trial and led to believe the parties had equal parenting time.
This was not the case. . . . There was no petition to modify
physical custody pending before the Court. However, this
Court’s order does modify the physical custody in such a fashion
so as to provide more parenting time to Father without regard as
to whether he will be available for same and without regard to
the children’s wishes pursuant to [Indiana Code section] 31-17-2-
8. The children in this case are intelligent, well-spoken and well
behaved children. Their [GAL] has testified that they do not
wish to be more than five (5) days in Father’s home. The
outcome of the parallel parenting plan has been to create an
equal physical custody situation. This may not be in the best
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 interests of the children, and without a pending petition, the
Court may have abused its discretion. Any order to modify
physical custody must be preceded by a petition to modify
physical custody.

Appellant’s App. Vol. II p. 140-41.

[22] As in Julie C., we find that the trial court’s order constituted a de facto

modification of physical custody. And as in Bailey, the trial court modified the

physical custody arrangement with no motion to do so filed by either party.

Under these circumstances, the trial court’s order providing that Father would

have 50% of the overall parenting time was erroneous. We therefore reverse

and remand for further proceedings.2

III. Parallel Parenting Plan
[23] Because the trial court will again be faced with fashioning a parenting time

arrangement for this high conflict family, we are compelled to address Mother’s

remaining argument, which is that the arrangement fashioned by the trial court

defeats the purpose of a Parallel Parenting Plan.

[24] This Court has explained the nature and purpose of Parallel Parenting Plans as

follows:

2
We leave it to the parties and the trial court to decide whether a new hearing is warranted, given the
passage of time since the original hearing and the rate at which change occurs in the lives of growing
children.

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 Effective March 2013, a provision allowing for the creation of
Parallel Parenting Orders was added to the Parenting Time
Guidelines. Such orders are intended to minimize the contact
between “high conflict parents . . . at least until the parent
conflict is under control.” [fn 2] Ind. Parenting Time Guidelines,
§ IV, Scope. To accomplish this goal, Parallel Parenting Orders
provide that “each parent makes day-to-day decisions about the
child while the child is with the parent” and limits
communications between the parents to written or emergency
contact only; such orders also are subject to mandatory review
every 180 days. Id. . . . .

[fn 2] The Parallel Parenting provision also states, “Joint
legal custody of children is normally inappropriate in
parallel parenting situations.” Ind. Parenting Time G., §
IV(1). This is consistent with case law observations that
joint legal custody should not be awarded when parents
cannot communicate and have made child-rearing a
“battleground.” See Carmichael v. Siegel, 754 N.E.2d 619,
635 (Ind. Ct. App. 2001). . . .[3]

Bailey, 7 N.E.3d at 344-45.

[25] Here, the trial court found that Mother and Father are high conflict parents and

that a Parallel Parenting Plan is warranted. Mother does not dispute this

finding, and indeed, we find it to be readily supported in the record.

[26] We sympathize with the challenge that this case presented to the trial court.

This is a high conflict family, but neither parent was at fault or unreasonable

3
In this case, Mother has not appealed the trial court’s denial of her request for sole legal custody of the
children.

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 and both parents genuinely love their children and are trying to do what they

believe is right—they simply can’t agree on what “right” is. This is a textbook

case for the implementation of a Parallel Parenting Plan. Mother makes a fair

point, however, that the arrangement fashioned here arguably defeats the

purpose of such a plan, which is to minimize contact between the parents.

[27] The trial court ordered that Mother would have to transport the children to and

from certain things, even if it is during Father’s parenting time, and ordered the

reverse for Father. That is new and additional (and regular) contact, which

may be contrary to the purpose of Parallel Parenting Plans.

[28] Therefore, on remand, we instruct the trial court to heed the purpose of a

Parallel Parenting Plan when it fashions the parenting time arrangement,

seeking to minimize the frequency of contact between Mother and Father. We

do not intend to bar the creation of a similar arrangement on remand (though

this arrangement may be unworkable once parenting time is modified), but we

do ask that the trial court do its best to minimize the amount of contact between

the parents.

[29] The judgment of the trial court is reversed in part and remanded for further

proceedings.

May, J., and Tavitas, J., concur.

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