Paternity: James A. Barnhart v. Sara E. Davis Whitcomb

FILED
Jul 26 2017, 10:00 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John R. Maley Darryn L. Duchon
Leah L. Seigel Indianapolis, Indiana
Barnes & Thornburg, LLP Monty K. Woolsey
Indianapolis, Indiana Andrew R. Bloch
Cross, Pennamped, Woolsey &
Glazier, P.C.
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re the Paternity of: July 26, 2017
G.G.B.W. a Minor Child, Court of Appeals Case No.
49A04-1611-JP-2474
J.B.,
Appeal from the Marion Circuit
Appellant-Petitioner, Court
v. The Honorable Sheryl Lynch,
Judge
S.W., Trial Court Cause No.
49C01-1101-JP-3803
Appellee-Respondent.

Bailey, Judge.

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 Case Summary
[1] J.B. (“Father”) and S.W. (“Mother”) are the parents of one daughter,

G.G.B.W. (“Child”). In 2015, Father petitioned to modify legal custody of

Child, and subsequently filed a contempt petition and motion for rule to show

cause in which Father alleged that Mother was in violation of a paternity

decree. The trial court denied Father’s petitions and motion, and ordered

Father to pay a portion of Mother’s attorney fees. Father now appeals.

[2] We affirm in part, reverse in part, and remand.

Issues
[3] Father presents the following restated issues:

I. Whether the trial court articulated an erroneous
interpretation of the Decree and thereby abused its
discretion in failing to find Mother in contempt;

II. Whether the trial court abused its discretion in denying
Father’s petition to modify legal custody; and

III. Whether the trial court abused its discretion in ordering
Father to pay a portion of Mother’s attorney fees.

Facts and Procedural History
[4] Father and Mother had a brief relationship while married to other spouses, and

Child was born in 2007. Mother remained married and Father subsequently

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 remarried. In 2011, Father and Mother entered an Agreed Decree of Paternity

concerning Child (the “Decree”) that the trial court approved and incorporated

into an order. The Decree contains the following provision relating to legal

custody: “The parties shall share joint legal custody of [Child] . . . which shall

be defined as follows: Mother must seek Father’s input prior to Mother making

any major medical, religious, or educational decisions for [Child].” Appellant’s

App. Vol. II at 47-48. The Decree also includes the following provision relating

to vaccinations: “If the child attends a school that requires vaccinations for

enrollment, and the child will be denied enrollment unless she receives the

vaccinations, then the child will be given the required vaccinations for

enrollment.” Appellant’s App. Vol. II at 51.

[5] Child was not vaccinated following her birth. At the time of the Decree, Child

attended a Montessori school that did not require vaccinations. The following

year, upon Father’s request, Child was to attend kindergarten at a public

school. The school required that its students be vaccinated but, pursuant to

Indiana Code section 20-34-3-2, the school allowed an unvaccinated student to

attend if a parent executed a form claiming a religious objection to

immunization. Mother sought Father’s consent to sign the form, but Father did

not consent. Mother then signed the form, and Child began attending the

school unvaccinated. In subsequent years, Mother submitted the form without

consulting Father, and Child has continued to attend the public school.

[6] In early 2015, when Father learned that Child would be traveling on an

extended European Disney Cruise, Father expressed concern to Mother about

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 Child remaining unvaccinated. On May 18, 2015, Father petitioned to modify

legal custody of Child as to medical decisions only, alleging a substantial

change in circumstances in that Child had not received any vaccinations since

birth. The next month, Father learned that his wife was pregnant, and on July

29, 2015, Father filed a contempt petition alleging that Mother was violating

the Decree because she did not “vaccinat[e] [Child] pursuant to” the Decree

and because she “falsely advised the school of a religious affiliation to avoid

vaccinating the child.” Appellant’s App. Vol. II at 57.

[7] During the pendency of Father’s motion and contempt petition, Father and his

wife became the parents of twins, a boy and a girl. The daughter was born

healthy and could receive vaccinations on schedule, but the son could not be

vaccinated due to a serious heart condition. Father was advised by a doctor

that it was unsafe for the newborns to be around anyone unvaccinated,

including Child. Acting on that advice, Father stopped exercising overnight

parenting time and would not permit Child to physically meet the infants.

[8] On March 3, 2016, Father filed a motion for rule to show cause. In the motion,

Father asserted generally the same grounds for contempt contained in his

petition and alleged that Child’s health was at risk due to being unvaccinated.

Father also alleged that he was unable to exercise overnight parenting time with

Child because Child was unvaccinated and posed a risk to his infants.

[9] The trial court held a hearing in May and June of 2016. At the hearing, Father

called his son’s doctor who testified in favor of vaccinations, and he called an

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 Episcopalian priest who testified that the Episcopalian faith—Mother’s faith—

has no tenet against vaccinations. Mother called two expert witnesses who

testified about the risks of vaccination and the ineffectiveness of vaccines.

[10] On October 6, 2016, the trial court denied Father’s petition to modify custody,

leaving the Decree unchanged. The trial court also denied Father’s contempt

petition and related motion for rule to show cause, reasoning that Mother

complied with the Decree when she claimed a religious objection to vaccinating

Child. Finally, the trial court ordered Father to contribute $10,000 toward

Mother’s attorney fees.

[11] This appeal ensued.

Discussion and Decision
Standard of Review
[12] Upon Mother’s timely written request, the trial court entered findings of fact

and conclusions thereon pursuant to Indiana Trial Rule 52(A). In reviewing

findings made pursuant to this rule, “we first determine whether the evidence

supports the findings and then whether findings support the judgment.” K.I. ex

rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009). We will “not set aside the

findings or judgment unless clearly erroneous” and we give “due regard” to

“the opportunity of the trial court to judge the credibility of the witnesses.” Ind.

Trial Rule 52(A). Findings of fact are clearly erroneous when there is no

support for them in the record, either directly or by inference. Steele-Giri v.

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 Steele, 51 N.E.3d 119, 125 (Ind. 2016). A judgment is clearly erroneous when

there is no evidence supporting the findings or the findings fail to support the

judgment. In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). A judgment

is also clearly erroneous when the trial court applies the wrong legal standard to

properly found facts. In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574,

578 (Ind. 2017).

Contempt
[13] Father challenges the trial court’s contempt determination, arguing that the trial

court misinterpreted the Decree when it failed to hold Mother in contempt.

[14] It is soundly within the discretion of the trial court to determine whether a party

is in contempt, and we review the judgment under an abuse of discretion

standard. Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016). “We will

reverse a trial court’s contempt findings only if there is no evidence or

inferences drawn therefrom to support them.” Hamilton v. Hamilton, 914

N.E.2d 747, 755 (Ind. 2009). Additionally, because the trial court denied

Father’s petition and motion, Father appeals from a negative judgment. See

Comm’r, Dep’t of Envtl. Mgmt. v. RLG, Inc., 755 N.E.2d 556, 559 (Ind. 2001). In

such circumstances, we will reverse the judgment only if it is contrary to law—

where the evidence leads to but one conclusion and the trial court reached the

opposite conclusion. Id. Moreover, in conducting our review, we consider the

evidence in the light most favorable to the appellee. Id.

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[15] To be held in contempt, a party must have willfully disobeyed a court order.

City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005). “The order must have

been so clear and certain that there could be no question as to what the party

must do, or not do, and so there could be no question regarding whether the

order is violated.” Id.

[16] One of Father’s arguments is that the plain language of the Decree “calls for

vaccinations based on the school’s requirements.” Appellant’s Br. at 22.

Father directs us to the vaccination provision in the Decree, which reads: “If

the child attends a school that requires vaccinations for enrollment, and the

child will be denied enrollment unless she receives the vaccinations, then the

child will be given the required vaccinations for enrollment.” Appellant’s App.

Vol. II at 51. Father contends that this provision provides no exception.

Mother responsively argues that Child was not denied enrollment because

Mother submitted the religious objection form, and so because Child was not

denied enrollment, the vaccination provision does not require Child’s

vaccination.

[17] It is important to note that this is a case of the trial court interpreting an

agreement of the parties rather than an order of its own creation. “In the usual

case, freedom of contract will, it is hoped, produce mutually acceptable accords,

to which parties will voluntarily adhere.” Voigt v. Voigt, 670 N.E.2d 1271, 1278

(Ind. 1996). There may be nuances to and purposes underlying the parties’

agreement to which the trial judge may not be privy. See id. (“[T]he actual

purpose lying behind any particular provision of a settlement agreement may

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 remain forever hidden from the trial judge. Indeed, it may be quite

idiosyncratic.”). Indiana Code section 31-14-10-1 provides that in a paternity

action, the court shall conduct a hearing to determine the issues of child

support, custody, and parenting time upon finding that a man is the child’s

biological father. However, the court may dispense with the hearing if the

mother and father file a verified written stipulation or a joint petition resolving

those issues. Ind. Code § 31-14-10-3. In that case, the court may approve the

agreement if it is in the best interest of the child, In re Paternity of M.R.A., 41

N.E.3d 287, 293 (Ind. Ct. App. 2015), and “shall incorporate provisions of the

written stipulation or joint petition” into its orders, I.C. § 31-14-10-3. This is

similar to the provisions of Indiana Code section 31-15-2-17(a) which allows

parties to a dissolution to agree in writing to provisions for the custody and

support of their children. Thus, we may look to caselaw discussing

interpretation of settlement agreements in dissolution actions in addressing the

issues presented by this paternity case.

[18] Settlement agreements are contractual in nature and, once incorporated into a

trial court’s final order, become binding on the parties. Whittaker v. Whittaker,

44 N.E.3d 716, 719 (Ind. Ct. App. 2015). The court that adopts the agreement

retains jurisdiction to interpret the terms of the agreement and to enforce them.

Id. To interpret a contract, the court first considers the parties’ intent as

expressed in the language of the agreement. Schmidt v. Schmidt, 812 N.E.2d

1074, 1080 (Ind. Ct. App. 2004). It must then read all the provisions as a whole

to find an interpretation that harmonizes the contract’s words and phrases and

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 gives effect to the parties’ intentions as of the time they entered the agreement.

Id. If the language is unambiguous, the intent of the parties must be determined

from the four corners of the agreement. Id. The terms of an agreement are

ambiguous “only when reasonably intelligent persons would honestly differ as

to the meaning of those terms.” Id. Reviewing the terms of a written contract

is a pure question of law and therefore, our standard of review is de novo.

Whittaker, 44 N.E.3d at 719.

[19] Here, the Decree gives Mother latitude to make a range of decisions without

input—and to make major medical, religious, and educational decisions after

consulting Father. The vaccination provision, however, is a specific exception

to this general rule. “It is well settled that when interpreting a contract, specific

terms control over general terms.” GPI at Danville Crossing, L.P. v. W. Cent.

Conservancy Dist., 867 N.E.2d 645, 651 (Ind. Ct. App. 2007), trans. denied. Thus,

where the vaccination provision applies, the vaccination provision controls—

without reference to the general legal-custody provision. See id.

[20] The vaccination provision became applicable when Child reached school age,

and it links the vaccination requirement to that of the school. Under the

provision, Child could attend the Montessori school unvaccinated because

vaccination was not a condition of enrollment. The public school, however,

required vaccination, and the only reason Child could attend was because

Mother claimed a religious objection to vaccination. “[U]nless the contract

provides otherwise, all applicable law in force at the time the agreement is made

impliedly forms a part of the agreement, because the parties are presumed to

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 have had the law in mind.” Schwartz v. Heeter, 994 N.E.2d 1102, 1106 (Ind.

2013) (citation and internal quotation marks omitted). The religious objection

exemption to the vaccination requirement has been in effect since 2005.

Therefore, the parties are presumed to have been aware of it when they entered

into their agreement in 2011. If the parties intended the religious objection

exemption to apply, they most likely would not have included the vaccination

provision in the agreement at all, because a religious objection would always

trump a school’s vaccination requirement and the provision would be

meaningless. At the very least, the parties could have provided for this

exemption to the vaccination requirement in their agreement. Yet, the

vaccination provision of the Decree is silent as to the religious objection

exemption. Because there is no such exception in the language of the

agreement and reading one in would void the provision, and because Mother’s

wide latitude for decision-making is limited in this instance by the specific

vaccination provision, the Decree accordingly requires that Child be vaccinated

based on her school’s requirements.

[21] The vaccination provision is clear that Child must be vaccinated if her school

requires it regardless of the existence of the statutory exemption. We

acknowledge, as the trial court did, that the religious objection statute does not

impose a good faith requirement in order to invoke the exemption. We further

acknowledge the trial court found “Mother’s testimony regarding her personal

religious beliefs and how those affect her opinion on vaccinations to be sincere

and valid to her.” Appellant’s App. Vol. II at 40. Although Mother’s “religious

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 objection” to vaccinations seems dubious given evidence that the religion she

professes to practice does not in fact have a tenet objecting to administering

vaccinations, the proper use and application of the religious exemption here is

not at issue. Whether or not Mother would otherwise be entitled to invoke a

religious objection to vaccinations, she is not entitled to do so here where she is

subject to a court order approving an agreement she willingly entered into that

requires vaccinations under these circumstances. Based on our interpretation of

the contract between the parties, we conclude the trial court’s failure to find

Mother in contempt for submitting the religious objection form to circumvent

the agreement is contrary to law.

Custody Modification
[22] Father contends that the trial court abused its discretion in denying his petition

to modify legal custody of Child based on Child not receiving any vaccinations

since birth. We review decisions concerning custody modifications for an abuse

of discretion, “with a ‘preference for granting latitude and deference to our trial

judges in family law matters.’” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)

(quoting In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993)). Following

the establishment of paternity, a trial court may modify a child-custody order

only upon a showing that modification is in the child’s best interests and that

there has been a substantial change in one or more of the factors that the court

may consider under Indiana Code section 31-14-13-2. I.C. § 31-14-13-6. Those

factors include:

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 (1) The age and sex of the child.

(2) The wishes of the child’s 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 parents;

(B) the child’s siblings; and

(C) any other person who may significantly affect the
child’s best interest.

(5) The child’s adjustment to home, school, and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either
parent.

I.C. § 31-14-13-2.

[23] With respect to modification of legal custody, a trial court should specifically

consider whether there has also been a change in one of the statutory factors

governing awards of joint legal custody. Julie C. v. Andrew C., 924 N.E.2d 1249,

1259-60 (Ind. Ct. App. 2010). In a paternity case, those factors are:

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 (1) the fitness and suitability of each of the persons awarded joint
legal custody;

(2) whether the persons awarded joint legal 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 legal custody;

(5) whether the persons awarded joint legal custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so;

(6) the nature of the physical and emotional environment in the
home of each of the persons awarded joint legal custody; and

(7) whether there is a pattern of domestic or family violence.

I.C. § 31-14-13-2.3(c).

[24] Here, Mother and Father shared joint legal custody of Child, which was defined

as requiring Mother to seek Father’s input before making any major medical,

religious, or educational decisions for Child. We concluded above that the

Decree requires that Child be vaccinated based on her school’s requirements

and that Mother is in contempt for submitting the religious objection form in
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 order to circumvent the parties’ agreement. Based on Mother’s actions, there is

a substantial change in Mother’s ability to communicate and cooperate with

Father in advancing Child’s welfare. For the same reasons, modification of

legal custody is in Child’s best interests. Accordingly, the trial court abused its

discretion in denying Father’s petition to modify legal custody of Child for the

limited purpose of making medical decisions concerning vaccinations.

Attorney Fees
[25] Father next argues that the trial court abused its discretion when it ordered him

to contribute $10,000 toward Mother’s attorney fees. We review a trial court’s

award of attorney’s fees for an abuse of discretion. In re Paternity of M.R.A., 41

N.E.3d at 296. An abuse of discretion occurs when the trial court’s decision is

clearly against the logic and effect of the facts and circumstances before the

court or if the court has misinterpreted the law. DePuy Orthopaedics, Inc. v.

Brown, 29 N.E.3d 729, 731-32 (Ind. 2015).

[26] Pursuant to Indiana Code section 31-14-18-2, a court in a paternity action may

order a party to pay “(1) a reasonable amount for the cost to the other party of

maintaining an action under this article; and (2) a reasonable amount for

attorney’s fees, including amounts for legal services provided and costs

incurred, before the commencement of the proceedings or after entry of

judgment.” In awarding attorney fees, the trial court must consider the

resources of the parties, their economic condition, the ability of the parties to

engage in gainful employment and to earn adequate income, and such factors

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 that bear on the reasonableness of the award. Kieffer v. Trockman, 56 N.E.3d 27,

33 (Ind. Ct. App. 2016). “The trial court may also consider any misconduct by

one party that causes the other party to directly incur additional fees.” In re

Paternity of M.R.A., 41 N.E.3d at 296. Moreover, “[w]hen one party is in a

superior position to pay fees over the other party, an award of attorney fees is

proper.” A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 120, 127-28 (Ind. Ct. App.

2004), trans. denied.

[27] In ordering Father to pay $10,000 toward Mother’s attorney fees, the trial court

found “that Father is in a superior economic position to Mother and that there

is a significant disparity in their incomes.” Appellant’s App. Vol. II at 45. The

trial court determined that Mother earned an annual income of approximately

$60,000 and Father earned an annual income of approximately $150,000. The

trial court also found that Mother incurred approximately $42,000 in attorney

fees and Father incurred approximately $49,000 in attorney fees.

[28] Father argues that the $10,000 fee award is unreasonable because there was

evidence that Mother’s household income is higher than his, and that Mother

could potentially earn twice as much if she were not a full-time parent. Father

also asserts that Mother engaged in misconduct by submitting the religious

objection form.

[29] Had the record included only the disparity in Mother’s and Father’s personal

incomes, we might have affirmed the attorney fee award. Here, however,

Mother contemptuously circumvented the Decree, causing Father to initiate the

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 instant proceedings—which Mother did not successfully defend. In light of

Mother’s misconduct, we conclude that the trial court abused its discretion in

ordering Father to contribute $10,000 toward her attorney fees.

Conclusion
[30] The trial court abused its discretion when it denied Father’s contempt petition

and related motion for rule to show cause, based on its misinterpretation of the

Decree when analyzing the issues of this case. The trial court also abused its

discretion in denying Father’s petition to modify legal custody of Child for the

limited purpose of making medical vaccination decisions. Moreover, the trial

court abused its discretion in requiring Father to contribute toward Mother’s

attorney fees. Neither party challenges the denial of Father’s request for an

order of estoppel, and we accordingly leave that portion of the trial court’s

order undisturbed.

[31] Affirmed in part, reversed in part, and remanded.

Vaidik, C.J., and Robb, J., concur.

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