MEMORANDUM DECISION                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Jan 24 2018, 9:15 am

this Memorandum Decision shall not be                                             CLERK
                                                                              Indiana Supreme Court
regarded as precedent or cited before any                                        Court of Appeals
                                                                                   and Tax Court
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
Julianne L. Fox                                          April L. Edwards
Fox & Lutz, LLC                                          Boonville, Indiana
Evansville, Indiana
Brent M. Macer
Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.W.,                                                    January 24, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         82A05-1707-DR-1700
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
C.W.,                                                    The Honorable Mary Margaret
Appellee-Respondent.                                     Lloyd Judge
                                                         Trial Court Cause No.
                                                         82D05-1511-DR-1499



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018           Page 1 of 28
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, J.W. (Mother), appeals the trial court’s Order, granting

      the motions of Appellee-Respondent, C.W. (Father), to amend the parties’

      Mediated Settlement Agreement and to hold Mother in contempt.


[2]   We affirm.


                                                   ISSUES
[3]   Mother raises four issues on appeal, which we restate as the following five

      issues:

      (1) Whether the trial court abused its discretion by excluding certain evidence

      related to academic testing of the parties’ minor child;

      (2) Whether the trial court erred in modifying the Mediated Settlement

      Agreement to require the parties’ children to discontinue homeschooling;

      (3) Whether the trial court erred by holding Mother in contempt for violating a

      parenting time order;

      (4) Whether the trial court denied due process to Mother; and

      (5) Whether the trial court abused its discretion by ordering Mother to pay a

      portion of Father’s attorney fees.


[4]   Father raises one additional issue on appeal, which we restate as: Whether

      Father is entitled to an award of appellate attorney fees.




      Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 2 of 28
                      FACTS AND PROCEDURAL HISTORY
[5]   Father and Mother were married for over eleven years, during which time,

      three children were born: J.W., born September 16, 2009; Ja.W., born

      December 7, 2011; and H.W., born October 24, 2014 (collectively, the

      Children). Throughout their union, Father worked for a railroad company and

      owned/managed rental properties while Mother primarily stayed home to care

      for the Children. In addition, despite Father’s reluctance about the matter,

      Mother elected to begin homeschooling J.W. and Ja.W. when they each

      reached approximately preschool age.


[6]   On November 18, 2015, Mother filed a petition for dissolution of marriage. On

      April 29, 2016, the parties submitted a Mediated Settlement Agreement and

      Summary Decree of Dissolution (Mediated Agreement) to the trial court, and

      on May 2, 2016, the trial court issued a Decree of Dissolution. In pertinent

      part, the parties agreed to


              share joint legal custody with the Mother to be primary [physical]
              custodian of the minor [C]hildren. The [C]hildren will continue
              to be homeschooled according to the homeschool plan [Mother]
              has provided to [Father], however the parties reserve the right to
              litigate this issue if the [C]hildren do not meet annual
              achievement benchmarks for their age level. The Father shall be
              entitled to regular parenting time with [J.W. and Ja.W.] for
              alternate weeks from Friday at 4:00 p.m. to Sunday at 4:00 p.m.
              as well as mid-week parenting time for three hours after work on
              Tuesdays and Thursdays each week. The Father acknowledges
              that given his work schedule, mid-week overnights are not
              practical. Regular parenting time shall be phased in for the
              youngest child[, H.W.,] on the following schedule (progressing to

      Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 3 of 28
        the next phase assuming no significant problems develop during
        the preceding phase):

        a) The Tuesday/Thursday mid-week schedule shall be the same
        as the mid-week schedule for the older children;

        b) For three months following the date of this [Mediated
        Agreement], the Father shall have parenting time with [H.W.]
        8:00 a.m. to 4:00 p.m. on every Sunday. The Mother shall drive
        [H.W.] to the Father’s home on Sunday morning, and the Father
        shall return [H.W.] to the Mother’s home on Sunday evenings;

        c) For the next three months, the Father shall have [H.W.] on
        alternate weeks (the same weekends as the older children), on
        Saturday from 8:00 a.m. to 4:00 p.m. and on Sunday from 8:00
        a.m. to 4:00 p.m.;

        d) For the next three months, the Father shall have one
        overnight on his alternating weekend, from Saturday at 8:00 a.m.
        to Sunday at 4:00 p.m.;

        e) At the end of this phase in period, [H.W.] shall exercise
        alternating weeks along with the older children.


(Appellant’s App. Vol. II, pp. 23-24). Additionally, the Mediated Agreement

provided that


        Father shall be entitled to . . . [fifteen] extra parenting days for
        the remainder of 2016, which can be used at any point
        throughout the year with [thirty] day[s’] notice (because the
        [C]hildren homeschool and are not subject to a traditional school
        calendar). The Father shall schedule his extended parenting time
        no more than three days consecutively (for a total of five days
        when combined with his weekend). Unless the Father is off
        work, the Mother shall have the [C]hildren during his work hours
        on his parenting days. Beginning in Summer 2017, the extended
Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 4 of 28
              parenting time shall follow the Indiana Parenting Time
              Guidelines.


      (Appellant’s App. Vol. II, p. 24).


[7]   In October of 2016, Father inquired with Mother about utilizing his additional

      fifteen days of parenting time, noting that he was running out of time to do so

      before the end of the year. Mother indicated that she would check the terms of

      the Mediated Agreement, and Father raised the matter with her several more

      times in October and November, stating that “[i]f I’m supposed to give [thirty]

      days[’] notice then I’ll need to use all [fifteen] days in December. Probably the

      first and second week and a couple weekends.” (Appellee’s Exh. 1). After

      arguing back and forth about the matter, Mother ultimately informed Father

      that because his request was made too late in the year and because the

      additional parenting time would both interrupt homeschooling and usurp

      “practically the entire holiday season,” they would “just continue with the

      schedule we have.” (Appellee’s Exh. 1).


[8]   On December 8, 2016, Father filed a Verified Petition for Contempt,

      contending that Mother had refused his requests to schedule the additional

      fifteen days of parenting time to which he was entitled under the Mediated

      Agreement. Father also alleged that Mother denied his parenting time with

      H.W. over the extended Thanksgiving weekend. Father accused Mother of

      “using ‘homeschooling’ as an excuse to prevent [him] from having make up

      parenting time and other parenting time with the . . . [C]hildren.” (Appellant’s

      App. Vol. II, p. 35). Specifically, Father described that Mother claimed to be
      Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 5 of 28
       “homeschooling the children year round” despite the terms of the Mediated

       Agreement, wherein “Mother agreed that her homeschooling would coincide

       with the school schedule in place for the Warrick County School District.”

       (Appellant’s App. Vol. II, p. 35).


[9]    In response, on January 23, 2017, Mother filed a Verified Petition to

       Modify/Clarify the Mediated Settlement Agreement, which she amended on

       January 27, 2017, to clarify that the Mediated Agreement actually “was

       formulated around homeschooling year-round without specified dates in place

       for reference” and that Father had failed to timely utilize his additional fifteen

       days of parenting time in accordance with the Mediated Agreement’s provision

       that such time could not be exercised “in increments of more than five (5)

       consecutive nights and was not to be stored up in order to exclude Mother from

       holidays.” (Appellant’s App. Vol. II, p. 39).


[10]   At the beginning of 2017, Father became concerned about J.W.’s academic

       progress. Specifically, after Father enrolled J.W. in a first grade Bible study

       class at Father’s church, J.W. indicated that he no longer wished to attend the

       class “because the other kids all read a lot better than I do.” (Tr. Vol. II, p. 37).

       Father also observed that J.W. struggled to write numbers and letters. Father

       further feared that homeschooling would be detrimental for the Children’s

       social skills, and he favored public school so that he could “keep up better with

       [J.W.’s] schooling.” (Tr. Vol. II, p. 39).




       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 6 of 28
[11]   Also around this time, Mother began reporting concerns that the Children,

       particularly J.W. and H.W., exhibited behavioral changes and anxiety

       surrounding their parenting time with Father. Mother described that


               [a]fter three months of having one overnight with [Father], each
               time [H.W.] would return home looking like a different child in
               my opinion, but I mean she just didn’t look like herself, was
               unclean, unkept, she was hungry, she was thirsty, she was very,
               very[] tired, she was not happy, she had difficulty making eye
               contact, didn’t engage like she normally would, she just didn’t
               seem like herself.


       (Tr. Vol. II, pp. 205-06). Mother also described that H.W. “suddenly began

       waking up frequently in the middle of the night with expressions of fear naming

       her [F]ather.” (Tr. Vol. II, p. 206). In addition, Mother stated that J.W. was

       fearful of Father and would cry to the point of dry heaving prior to Father’s

       parenting time. By the end of January 2017, H.W. should have progressed to

       the same parenting time schedule as J.W. and Ja.W., which consisted of two

       mid-week visits for three hours and from Friday at 4:00 p.m. to Sunday at 4:00

       p.m. on alternating weekends. Up to this point, H.W. had been participating in

       the mid-week visits and was only spending one night with Father on the

       alternating weekends. However, Mother objected to progressing to the final

       phase of the modified parenting time arrangement for H.W. based on her belief

       that Father was possibly abusing or neglecting the Children. In February of

       2017, Mother arranged for all three Children to begin therapy.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 7 of 28
[12]   On February 23, 2017, Father filed a Second Verified Petition for Contempt,

       this time asserting that Mother failed to abide by the Mediation Agreement’s

       phase-in parenting time schedule for H.W. On March 17, 2017, Mother filed

       an Emergency Petition to Restrict Parenting Time because “the [C]hildren

       exhibit extreme anxiety concerning parenting time with . . . Father such that an

       emergency exists.” (Appellant’s App. Vol. II, p. 45). Mother requested that

       “parenting time should not be overnight” until “the therapists have the

       opportunity to attend to the concerns in this case.” (Appellant’s App. Vol. II, p.

       45). The trial court heard argument by counsel and denied the emergency

       petition.


[13]   On March 30, 2017, Father filed his Third Verified Petition for Contempt,

       contending, in relevant part, that Mother refused to allow H.W. to spend Spring

       Break with Father. That day, Father also filed a Motion to Compel Testing to

       ascertain whether J.W. was meeting the educational benchmarks for his age, as

       well as a Motion for Modification of Mediated Settlement Agreement to require

       that the Children discontinue homeschooling in light of a concern that J.W.

       was “behind in his education.” (Appellant’s App. Vol. II, p. 53).


[14]   On April 21, 2017, the trial court held a hearing and subsequently granted

       Father’s request to have J.W. academically tested. On May 9, 2017, the

       principal of Cynthia Heights Elementary School, part of the Evansville

       Vanderburgh School Corporation, administered “a battery of tests” based on

       the fact that, for J.W.’s age, he typically “would just have finished up first

       grade” and “would be going into second grade” at the start of the school year.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 8 of 28
       (Tr. Vol. II, pp. 7-8). In reading, J.W. tested at the level of “a first grader at the

       third month.” (Tr. Vol. II, p. 8). Specifically, he tested in the “20th percentile

       and what that means is that 80% of the kids at his level are higher than him,

       and 19% are lower than him, for his age.” (Tr. Vol. II, p. 9). For language,

       J.W. tested “at a grade equivalent of about a first grader, the eight[h] month, so

       more towards the end of first grade” in the “46th percentile, so he’s about in the

       mid-point.” (Tr. Vol. II, p. 9). Finally, despite “ample time” to complete all of

       the testing, J.W. was unable to finish the math portion of the exam. (Tr. Vol.

       II, p. 10). The school principal noted that she “often had to keep [J.W.] . . .

       motivated” throughout the testing. (Tr. Vol. II, p. 10). The principal ultimately

       concluded that J.W. is “behind grade level. . . . [H]e is not where he needs to be

       where other second graders are.” (Tr. Vol. II, p. 15).


[15]   On the other hand, Mother consulted homeschool resources and opted to

       personally administer the “California Achievement Test,” which she described

       as “a nationally recognized standardized test,” to evaluate J.W.’s academic

       performance in the areas of reading, language arts, and math. (Tr. Vol. II, pp.

       241, 244). Over two days, Mother administered the online test in her home and

       recorded the process. Throughout the testing, Mother had to motivate J.W. to

       continue. She provided guidance on the testing instructions and even read all

       of the passages and answer options aloud in the reading section of the test.

       J.W. repeatedly expressed his fear of incorrectly answering, indicated that there

       were aspects of the test that he had never before seen, and repeatedly looked to

       Mother for prompts and reassurance. Nevertheless, Mother reported that “[t]he


       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 9 of 28
       results showed that [J.W.] was at at least a 2nd grade level in reading, language

       arts, and math.” (Tr. Vol. II, p. 242).


[16]   On May 11, 2017, Mother filed a Renewed Motion to Restrict Parenting Time,

       again claiming that “the [C]hildren are exhibiting extreme anxiety concerning

       parenting time” and requesting that “parenting time be restricted to not include

       overnights or limit the number of overnights permitted consecutively.”

       (Appellant’s App. Vol. II, p. 59). Mother argued that the parties are unable to

       communicate and indicated that she was requesting an award of sole legal

       custody. On May 24, 2017, Mother filed a motion to withdraw her petitions

       filed on January 23, 2017, January 27, 2017, and May 11, 2017 (for clarification

       of the Mediated Agreement and restricted parenting time), and filed a specific

       motion for modification of custody. Mother alleged that there had “been a

       substantial and continuing change in circumstances such that the current order

       [was] no longer in the best interest of the [Children].” (Appellant’s App. Vol.

       II, p. 75). Mother requested that she be granted sole legal custody and that

       Father’s parenting time be restricted based on her belief that “overnight

       parenting time with Father is endangering the [C]hildren’s physical health

       and/or their emotional well being is being significantly impaired as the

       [C]hildren exhibit extreme anxiety concerning parenting time with the Father,

       have described concerning events to the therapists, and refer to being afraid or

       scared of Father.” (Appellant’s App. Vol. II, pp. 75-76). On May 25, 2017,

       Father objected to the withdrawal of Mother’s motions in lieu of a motion to

       modify custody. With the hearing set for less than a week away, Father argued


       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 10 of 28
       that Mother’s newly stated legal position would cause him prejudice. Although

       the record is unclear, it does not appear that the trial court granted Mother’s

       motion to withdraw her prior petitions; instead, the trial court scheduled

       Mother’s motions to modify custody and to restrict parenting time for a hearing

       on August 21, 2017.


[17]   On June 1 and 7, 2017, the trial court conducted a hearing on Father’s three

       contempt motions and his motion to modify the Mediated Agreement regarding

       the Children’s schooling, as well as Mother’s request for an interim order on

       restricted parenting time. With respect to the Children’s education, Father and

       Mother each submitted their divergent evidence concerning J.W.’s test scores.

       Regarding parenting time, Mother submitted video recordings that depicted

       J.W. and H.W. upset in anticipation of, and sometimes after, parenting time

       with Father, whereas Father submitted video evidence demonstrating that the

       Children do not exhibit emotional distress during his parenting time. Father

       further submitted notes from the Children’s therapy sessions, wherein J.W. and

       Ja.W., in varying terms, spoke negatively of Father and expressed not wanting

       to spend time with him. However, J.W. also indicated to the therapist that

       some of his feelings were based on things that “[Mother] told him”—including,

       in part, that “[Father] pretends to be nice but is mean.” (Appellee’s Exh. 8a).


[18]   On July 18, 2017, the trial court issued an Order. The trial court granted

       Father’s request that Mother discontinue homeschooling for J.W. and Ja.W.,

       instead finding it to be in their best interest to attend public school. The trial

       court further found Mother to be in contempt for “willfully and intentionally”

       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 11 of 28
       violating the court’s prior order regarding parenting time. (Appellant’s App.

       Vol. II, p. 4). Specifically, the trial court found that Mother had denied the

       extra fifteen days of parenting time to which Father was entitled, and Mother

       withheld overnight parenting time with H.W. in accordance with the phase-in

       parenting time arrangement. As a consequence for Mother’s contempt, the trial

       court ordered her to pay $5,000 toward Father’s attorney fees. The trial court

       also entered an “Interim Order” for parenting time, which provided that H.W.

       would be on the same parenting time schedule as J.W. and Ja.W., that Father

       would have the Children for a sixteen-day block during the summer, and that

       Father would be entitled to have an additional seven weekends of parenting

       time to make up for the days that he was denied. (Appellant’s App. Vol. II, p.

       6). The trial court ordered the parties to appear on August 21, 2017, “for

       further hearing on [Mother’s] request for restricted parenting time[] and Petition

       to Modify Custody.” (Appellant’s App. Vol. II, p. 7).


[19]   On July 19, 2017, Mother filed a motion to withdraw her motion for sole legal

       custody, and on July 22, 2017, she filed an emergency petition to stay the trial

       court’s July 18, 2017 Order. The trial court denied her motion to stay on July

       24, 2017. On July 27, 2017, Mother filed her Notice of Appeal. Then, on

       August 1, 2017, she moved to dismiss her motion for restricted parenting time,

       which the trial court granted on August 2, 2017. The trial court subsequently

       vacated the August 21, 2017 hearing date.


[20]   Mother now appeals. Additional facts will be provided as necessary.



       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 12 of 28
                               DISCUSSION AND DECISION
                                             I. Standard of Review

[21]   In this case, the trial court’s Order includes sua sponte findings of fact and

       conclusions thereon. In accordance with Indiana Trial Rule 52(A), our court

       “shall not set aside the findings or judgment unless clearly erroneous, and due

       regard shall be given to the opportunity of the trial court to judge the credibility

       of the witnesses.” On review, “we look only to whether the evidence supports

       the findings, and then whether the findings support the judgment, without

       reweighing the evidence or reassessing witness credibility.” In re Marriage of

       Gertiser, 45 N.E.3d 363, 369 (Ind. 2015) (internal citation omitted). The trial

       court’s findings “are controlling unless the record contains ‘no facts to support

       them either directly or by inference.’” Id. Legal conclusions, on the other

       hand, are reviewed de novo. Id. As to any issues not covered by the trial court’s

       findings, we apply a general judgment standard and will “affirm based on any

       legal theory supported by the evidence.” Steele-Giri v. Steele, 51 N.E.3d 119, 124

       (Ind. 2016).


[22]   Furthermore, our court will adhere to a long-established preference “for

       granting latitude and deference to our trial judges in family law matters.” Id.

       “Appellate courts ‘are in a poor position to look at a cold transcript of the

       record, and conclude that the trial judge, who saw the witnesses, observed their

       demeanor, and scrutinized their testimony as it came from the witness stand,

       did not properly understand the significance of the evidence.’” Id. (quoting Kirk

       v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). Thus, on appeal, “it is not enough

       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 13 of 28
       that the evidence might support some other conclusion, but it must positively

       require the conclusion contended for by appellant before there is a basis for

       reversal.” Id. (quoting Kirk, 770 N.E.2d at 307).


                                           II. Admission of Evidence

[23]   Mother claims that the trial court abused its discretion by excluding the results

       of the California Achievement Test from evidence. It is well established that

       trial courts have sound discretion to admit or exclude evidence. D.B.M. v. Ind.

       Dep’t of Child Servs., 20 N.E.3d 174, 178-79 (Ind. Ct. App. 2014), trans. denied.

       We will find an abuse of the trial court’s discretion if its decision is contrary to

       “the logic and effect of the facts and circumstances before it.” Id. at 179. Even

       where the trial court errs in an evidentiary decision, our court will only reverse

       “if we conclude the admission [or exclusion] affected a party’s substantial

       rights.” Id.


[24]   During the hearing, Mother submitted a flash drive, Exhibit C, which was

       admitted into evidence without objection. Among the files on the flash drive

       are video recordings of Mother administering the California Achievement Test

       to J.W., as well as a copy of the test results. Mother also testified that the

       results of the California Achievement Test demonstrated that J.W. was then

       performing at a second grade level. Later in the hearing, Mother sought to

       specifically admit Exhibit F, “the achievement testing results.” (Tr. Vol. II, p.

       248). Father objected based on a lack of foundation for the document, citing

       Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and arguing

       that Mother “has no educational background, she’s not testified that she’s ever

       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 14 of 28
       administered [an] achievement test before, she has not demonstrated that this

       particular test was appropriate for a [seven] year old, that it’s commonly used,

       commonly accepted to provide accurate results.” (Tr. Vol. II, pp. 248-49).

       Mother now claims that the trial court erroneously excluded “hard copies of the

       results” despite admitting the electronic version contained on the flash drive.

       (Appellant’s Br. p. 10).


[25]   Here, we need not address the Daubert and Indiana Evidence Rule 702

       arguments presented by the parties as to whether the evidence was properly

       excluded or if the reliability of the test results should simply have impacted the

       evidentiary weight accorded by the trial court. Mother testified as to how she

       selected the California Achievement Test, how she administered the test

       (including video footage), and specifically to the results of the California

       Achievement Test. Thus, any error in the denial of admission of the document 1

       would be harmless as it is “merely cumulative” of Mother’s testimony. D.B.M.,

       20 N.E.3d at 179 (“In general, the admission of evidence that is merely

       cumulative of other evidence amounts to harmless error as such admission does

       not affect a party’s substantial rights.”).




       1
         Again, we reiterate that the results of the California Achievement Test were, in fact, included on the flash
       drive, which was admitted in its entirety without objection. Thus, it is not entirely clear what evidence, if
       any, was excluded or why this matter is now before our court.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018           Page 15 of 28
                        III. Modification of Mediated Agreement: Homeschooling

[26]   Mother claims that the trial court erred by modifying the Mediated Agreement

       to require that the Children attend public school. In a dissolution proceeding,

       “parties are free to draft their own settlement agreement” which is “contractual

       in nature” and “binding upon the parties.” Shorter v. Shorter, 851 N.E.2d 378,

       382-83 (Ind. Ct. App. 2006). Thus, the general rules governing contracts are

       also applicable to settlement agreements. Id. at 383. As with other contracts,

       interpretation of a settlement agreement “generally presents a question of law”

       and is reviewed de novo. Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010);

       Zan v. Zan, 820 N.E.2d 1284, 1287 (Ind. Ct. App. 2005). Where a settlement

       agreement’s terms are clear and unambiguous, they “are deemed conclusive,”

       and we “will not construe the contract or look to extrinsic evidence, but will

       merely apply the contractual provisions.” Shorter, 851 N.E.2d at 383. “Terms

       are not ambiguous merely because the parties disagree as to the proper

       interpretation of those terms.” Id.


[27]   Pursuant to the Mediated Agreement, Father and Mother originally agreed that

       the Children would “continue to be homeschooled according to the

       homeschool plan [Mother] . . . provided to [Father], however the parties reserve

       the right to litigate this issue if the [C]hildren do not meet annual achievement

       benchmarks for their age level.” (Appellant’s App. Vol. II, p. 23) (emphasis

       added). The trial court concluded that the academic evidence presented

       established that J.W. was “not achieving the annual achievement bench marks

       for his age level by [Mother] homeschooling him. Furthermore, since [Mother]

       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 16 of 28
       by her own words finds [Ja.W.’s] aptitude [to be ‘like J.W.’],” the trial court

       ordered that it would serve the best interests of both J.W. and Ja.W. 2 to attend

       public school (or private school if so agreed by the parties). (Appellant’s App.

       Vol. II, p. 4).


[28]   In support of its decision, the trial court relied on the testimony of the Cynthia

       Heights Elementary School principal that J.W., who should be entering second

       grade based on his age, was “behind grade level.” (Tr. Vol. II, p. 15). In

       reading, J.W. tested at the level of “a first grader at the third month”—

       specifically, in the 20th percentile compared to his peers. (Tr. Vol. II, p. 8). For

       language, J.W. tested “at a grade equivalent of about a first grader, the eight[h]

       month, so more towards the end of first grade”—in the 46th percentile. (Tr.

       Vol. II, p. 9). Finally, despite “ample time” to complete all of the testing, J.W.

       was unable to finish the math portion of the exam. (Tr. Vol. II, p. 10). The

       trial court noted the principal’s testimony that she had to continually motivate

       J.W. to complete the testing. In addition, the trial court considered Mother’s

       evidence that J.W. was “working at a second grade level in all areas.”

       (Appellant’s App. Vol. II, p. 4). Yet, the trial court discussed that throughout

       Mother’s video recordings of J.W. taking the California Achievement Test,

       J.W. “appear[ed] anxious, stressed and at one point beg[an] to tear up.”

       (Appellant’s App. Vol. II, p. 4). The trial court further observed that “[a]t one




       2
         At the time of these proceedings, only J.W. and Ja.W. were homeschooled as H.W. had not yet reached
       school age.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018    Page 17 of 28
       point” during the California Achievement Test, J.W. “remark[ed], ‘I usually

       don’t do this type of math[,]’ [t]o which[ Mother] replied, ‘that’s not true.’”

       (Appellant’s App. Vol. II, p. 4).


[29]   Mother now argues that


               [t]he [trial] court relied solely upon . . . [the testimony of the
               Cynthia Heights Elementary School principal] regarding [J.W.’s]
               age in regard to the Evansville Vanderburgh School Corporation
               policy, not upon the statute regarding mandatory school
               attendance and solely discounting her testimony regarding her
               lack of knowledge on statutory age being seven for mandatory
               attendance. Moreover, although the court acknowledged
               Mother’s Exhibit C regarding [J.W.] taking the California
               Achievement Test, the court discounted the results included on
               the Exhibit C[] thumb drive which was admitted without
               objection.


       (Appellant’s Br. p. 10) (internal citation omitted). Concerning her mandatory

       school age argument, Mother cites Indiana Code section 20-33-2-8, which

       provides that “[a] student is not bound by the requirements of [compulsory

       school attendance] until the student becomes seven (7) years of age.” Thus, by

       age seven, “the parent of a student who would otherwise be subject to

       compulsory school attendance” must certify to the superintendent of the

       applicable school corporation that the parent intends to either enroll the student

       in a non-accredited, non-public school or to “begin providing the student with

       instruction equivalent to that given in the public schools.” I.C. § 20-33-2-8.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 18 of 28
[30]   The plain language of the Mediated Agreement allows re-litigation of the

       homeschooling issue if the Children fail to reach “annual achievement

       benchmarks for their age level.” (Appellant’s App. Vol. II, p. 23). Mother

       asserted during the hearing that because J.W. was not even required to begin

       school until age seven, regardless of whether he was testing at a first or second

       grade level, he satisfied the benchmarks for a seven-year-old. We disagree. A

       child may enroll in kindergarten if he is “at least five (5) years of age on August

       1 of the school year.” I.C. § 20-33-2-7. As the Cynthia Heights Elementary

       School principal testified, for a seven-year-old child (who would turn eight

       during the school year), the public school system would generally expect J.W.

       to be completing second grade work and, in fact, would automatically have

       enrolled J.W. in second grade based on his age alone. According to Indiana

       Code section 20-33-2-8, in a homeschool setting, Mother would be required to

       provide the equivalent instruction that a public school would provide to a

       seven-year-old. Based on the testing administered by the Cynthia Heights

       Elementary School principal, J.W. was performing below this level. Any

       argument as to whether J.W. was, in fact, performing at a first or second grade

       level based on the varying academic tests administered would amount to a

       request for reweighing of the evidence, which we will not do. Instead, we

       conclude that there is evidence in the record that J.W. was performing below

       his benchmark to support the trial court’s decision to order that homeschooling

       be discontinued.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 19 of 28
                                       IV. Contempt: Parenting Time

[31]   Mother next claims that the trial court erred by finding her in contempt based

       on her denial of Father’s parenting time. “Whether a person is in contempt of a

       court order is a matter within the trial court’s discretion.” Paternity of J.W. v.

       Piersimoni, 79 N.E.3d 975, 981 (Ind. Ct. App. 2017). We will overturn a finding

       of contempt only for an abuse of discretion—that is, if the trial court’s decision

       is against the logic and effect of the facts and circumstances before it. Clary-

       Ghosh v. Ghosh, 26 N.E.3d 986, 993 (Ind. Ct. App. 2015), trans. denied. A

       finding of contempt is proper where a party willfully disobeys any lawfully

       entered court order. Id. In this case, Mother bears the burden of demonstrating

       that her violation of the trial court’s parenting time order, as set forth in the

       Mediated Agreement and incorporated into the divorce decree, “was not

       willful.” Id. On appeal, Mother only challenges the trial court’s finding of

       contempt with respect to her denial of Father’s parenting time with H.W. in

       accordance with the phase-in schedule; she does not claim any error in the trial

       court’s finding of contempt related to the denial of Father’s extra fifteen days of

       parenting time.


[32]   “The right of a non-custodial parent to visit with his or her children is a sacred

       and precious privilege, and, ideally, a child should have a well-founded

       relationship with both parents.” In re Paternity of P.B., 60 N.E.3d 1092, 1098

       (Ind. Ct. App. 2016). In this case, Father and Mother mutually agreed that

       H.W.’s phase-in parenting time would proceed on schedule “assuming no

       significant problems develop[ed] during the preceding phase.” (Appellant’s

       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 20 of 28
       App. Vol. II, p. 23). By February of 2017, H.W. had been spending one

       overnight at Father’s house on alternating weekends for at least three months,

       and she was scheduled to begin spending two nights on alternating weekends—

       i.e., to be on the same parenting time schedule as J.W. and Ja.W. As the trial

       court found, Mother did not agree “to phase beyond one (1) overnight because

       [H.W.] had changes in behavior, appearance, and sleep. [Mother] added that

       after overnights[,] [H.W.] was hungry, thirsty, dirty, made no eye contact, was

       not like herself, and was out of sorts.” (Appellant’s App. Vol. II, p. 5).

       Nevertheless, the trial court determined that based on


               the evidence to date, and with the understanding that the [c]ourt
               will receive further evidence including the therapists of the
               [C]hildren at the next hearing date, the [c]ourt does not find the
               evidence presented shows any “significant problems” have
               developed in the phase-in period to justify [H.W.’s] parenting
               time being different from her brothers.


       (Appellant’s App. Vol. II, p. 5). Rather, Mother “willfully and intentionally

       denied overnights of [H.W.] to [Father].” (Appellant’s App. Vol. II, p. 5).


[33]   Mother now contends that she “has never waivered in her assertion that

       ‘significant problems’ occurred with the phasing in of overnights such that the

       last phase of parenting time should not occur.” (Appellant’s Br. p. 12).

       “[W]ithout prior notification as to what the trial court would consider

       ‘significant,’ Mother [argues that she] cannot be held in contempt if she

       genuinely held the belief the problems were significant.” (Appellant’s Br. p.

       12). In turn, Father argues that the trial court properly found Mother to be in

       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 21 of 28
       contempt because Mother’s “subjective belief that there were significant

       problems that should have prevented H.W. from completing the phase[-]in

       parenting time with her Father is not enough nor is it even credible in light of

       the other testimony and evidence.” (Appellee’s Br. pp. 20-21). Specifically,

       Father points out that the therapy records indicate that “the only thing negative

       documented was Mother’s conduct of saying negative things about Father to

       the [C]hildren,” and “Father’s videotapes and testimony directly contradicted

       that there were any problems.” (Appellee’s Br. p. 20).


[34]   We cannot say that the trial court abused its discretion. Mother submitted

       video evidence of J.W. and H.W. crying in anticipation of their parenting time

       with Father, and she recorded conversations with J.W. and H.W., wherein two-

       year-old H.W. referred to Father as “scary,” “mean,” and “hateful,” and

       wherein seven-year-old J.W. alleged, in part, that Father had punched him 3 and

       criticized him for his academic performance. (Appellant’s Exh. C). Mother

       also testified that J.W. and H.W. experienced sleep and digestive issues and

       anxiety in relation to their parenting time with Father, and she surmised that

       H.W.’s aggressive play with one of her dolls was indicative of H.W. acting out

       her fears of Father. In turn, Father submitted video evidence of the Children

       playing normally and having fun during his parenting time. He acknowledged

       that J.W. and H.W. are sometimes reluctant at the beginning of parenting time,

       but that their emotions quickly fade and the Children do not have problems



       3
           Mother acknowledged that she observed no bruises or other evidence of physical abuse.


       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018     Page 22 of 28
       while in his care. Father also presented notes from the Children’s therapy

       sessions, in which there is evidence that the Children’s negative comments

       about Father may stem from their conversations with Mother rather than their

       actual experiences. It was incumbent upon the trial court to consider and weigh

       the conflicting evidence and make credibility determinations, and we do not

       interfere with those decisions. See Clary-Ghosh, 26 N.E.3d at 993 (noting that, in

       reviewing a contempt finding, the appellate court does not reweigh evidence or

       judge the credibility of witnesses). Here, the trial court clearly accorded

       credibility to Father’s evidence establishing that there are no “significant

       problems” to warrant delaying H.W.’s parenting time schedule. (Appellant’s

       App. Vol. II, p. 23). Absent “a firm and definite belief that a mistake has been

       made” in holding Mother in contempt, we now affirm the trial court. Clary-

       Ghosh, 26 N.E.3d 986 at 993.


                                                 V. Due Process

[35]   Mother claims that the trial court violated her right to due process by

       “prematurely order[ing] a modification of parenting time and foreclos[ing]

       upon Mother’s Motion for Restricted Parenting Time set before the court on

       August 21, 2017.” (Appellant’s Br. p. 13). In other words, Mother contends

       that she had moved “to restrict Father’s parenting time on two occasions, and

       the issue was set for August 21, 2017.” (Appellant’s Br. p. 13). According to

       Mother, the trial court could not determine that significant issues had arisen

       with respect to H.W.’s phase-in parenting time schedule until the therapists

       testified at the August 21, 2017 hearing.


       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 23 of 28
[36]   We are perplexed by Mother’s argument. At Mother’s request, the trial court

       entered an interim parenting time order pending the hearing on Mother’s

       motions to restrict Father’s parenting time and for sole legal custody. The

       interim parenting time order honored the original Mediated Agreement’s intent

       that H.W. would eventually maintain the same parenting time schedule as J.W.

       and Ja.W. As to whether any significant issues had arisen to prevent H.W.

       from progressing to the final phase of her modified parenting time schedule, the

       trial court found Mother in contempt based on the evidence presented—

       namely, that Mother had unilaterally determined to restrict Father’s parenting

       time based on her unsupported perception of “significant problems.”

       (Appellant’s App. Vol. II, p. 23). The contempt issue was squarely before the

       trial court, but Mother did not call the Children’s therapists to testify in support

       of her position that she did not willfully violate the parenting time order.

       Moreover, because Mother subsequently moved for dismissal of her motion to

       restrict parenting time, the trial court vacated the August 21, 2017 hearing date.

       Therefore, we ultimately find that Mother has waived any due process

       argument for our review.


                                                VI. Attorney Fees

[37]   Lastly, Mother claims that the trial court erroneously ordered her to pay

       Father’s attorney fees. A “trial court has inherent authority to award attorney

       fees for civil contempt.” Clary-Ghosh, 26 N.E.3d at 995. An award of attorney

       fees is reviewed on appeal under the abuse of discretion standard, and we will

       reverse only if the trial court’s decision is clearly against the logic and effect of


       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 24 of 28
       the facts and circumstances before the court. Bessolo v. Rosario, 966 N.E.2d 725,

       733 (Ind. Ct. App. 2012), trans. denied.


[38]   “The objective of a contempt citation is not to punish but to coerce action for

       the benefit of the aggrieved party. Thus, any type of remedy in civil contempt

       proceedings must be coercive or remedial in nature.” Kahn v. Baker, 36 N.E.3d

       1103, 1114 (Ind. Ct. App. 2015), trans. denied. Because of a trial court’s

       inherent authority to enforce compliance with its order and decrees, no

       statutory sanction is required “to compensate the aggrieved party for losses and

       damages resulting from another’s contemptuous actions.” Id. at 1116.

       Nonetheless, Indiana Code section 31-17-7-1 specifically authorizes a trial court

       to “order a party to pay a reasonable” attorney fees related to maintaining or

       defending an action involving parenting time rights.


               In assessing attorney’s fees, the trial court may consider such
               factors as the resources of the parties, the relative earning ability
               of the parties, and other factors bearing on the reasonableness of
               the award. In addition, any misconduct on the part of a party
               that directly results in the other party incurring additional fees
               may be taken into consideration.


       Bessolo, 966 N.E.2d at 733. A trial court is not obligated to give its reasons for

       its decision to award attorney fees. Id.


[39]   Here, Father presented evidence that he had expended $10,641.39 in attorney

       fees to pursue modification of the homeschooling arrangement and to establish

       Mother’s contempt. Based on its finding of Mother’s contempt, the trial court

       “ordered [her] to pay $5,000.00 of [Father’s] attorney fees. She shall pay
       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 25 of 28
       $500.00 twice per month on the first and fifteenth day of each month until paid

       in full.” (Appellant’s App. Vol. II, p. 6). Mother now complains that the trial

       court failed to acknowledge whether she “had the ability to pay or her

       resources.” (Appellant’s Br. p. 14). Mother contends that the child support

       worksheet, attached to the Mediated Agreement, demonstrates that her weekly

       income is $500.00, which is “four times” less than Father’s income.

       (Appellant’s Br. p. 14). Thus, she contends that to “tak[e] away a full week’s

       wages” is “punitive in nature.” (Appellant’s Br. p. 14).


[40]   A review of the child support worksheet indicates that Mother’s income, at the

       time the parties were divorced in April of 2016, was actually $300.00 per week,

       whereas Father was earning $1,285.00 per week. In text messages exchanged

       between Mother and Father, it does appear that Mother is now employed in

       some fashion on at least a part-time basis, but no other evidence was presented

       concerning her current income. Nevertheless, the parties’ Mediated Agreement

       was part of the record, and, in addition to the child support worksheet, it

       discussed the distribution of marital assets. Specifically, there was evidence

       before the trial court that Mother, as part of the divorce, received over $33,000

       from the parties’ joint account. As Mother’s misconduct was the basis for the

       attorney fee award, it was certainly the trial court’s prerogative to order the

       payment of attorney fees. Moreover, because “we assume” that the trial court

       considered the financial information set forth in the Mediated Agreement in

       awarding the attorney fees, we find no abuse of discretion. Bessolo, 966 N.E.2d

       at 733.


       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 26 of 28
                                         VII. Appellate Attorney Fees

[41]   Father claims that he is entitled to an award of appellate attorney fees pursuant

       to Indiana Appellate Rule 66(E). Our court is authorized to “assess damages if

       an appeal, petition, or motion, or response, is frivolous or in bad faith.

       Damages shall be in [our] discretion and may include attorneys’ fees.” Ind.

       Appellate Rule 66(E). “Our discretion to award attorney fees . . . is limited,

       however, to instances when an appeal is permeated with meritlessness, bad

       faith, frivolity, harassment, vexatiousness, or purpose of delay.” Thacker v.

       Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). We exercise “extreme

       restraint when exercising this power because of the potential chilling effect upon

       the exercise of the right to appeal.” Id.


[42]   Father claims that “there simply was not any legitimate legal basis for this

       appeal and . . . that Mother has brought this appeal in bad faith and to further

       harass him and cost him money.” (Appellee’s Br. p. 27). Generally, claims for

       appellate attorney fees are “formally categorized” into either “substantive” or

       “procedural” bad faith claims. Thacker, 797 N.E.2d at 346. Father’s claim

       concerns substantive bad faith, and to prevail, he must demonstrate that

       Mother’s “contentions and arguments are utterly devoid of all plausibility.” Id.

       Here, Father argues that Mother’s arguments primarily amount to requests for

       reweighing of evidence, ignore her failure to take advantage of opportunities to

       be heard and present evidence, overlook her own actions in withdrawing

       motions, and ignore the applicable abuse of discretion standard. While some of

       Mother’s arguments are underdeveloped and certainly meritless, we are mindful


       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 27 of 28
       of the chilling effect of appellate attorney fees. Furthermore, we do not find

       that all of Mother’s arguments are so devoid of plausibility as to warrant

       appellate attorney fees. Specifically, we note that Mother’s argument regarding

       the application of the statute regarding mandatory school age was a novel and

       interesting approach that, based on our de novo review, could have worked in her

       favor. Accordingly, we decline Father’s request.


                                             CONCLUSION
[43]   Based on the foregoing, we conclude that the trial court did not err in modifying

       the Mediated Agreement to require the Children to discontinue homeschooling,

       and any error in the exclusion of academic testing evidence would be

       considered harmless. We further conclude that the trial court acted within its

       discretion in finding Mother to be in contempt and ordering her to pay attorney

       fees as a result. Mother has waived any claim regarding a violation of due

       process. Finally, we conclude that Father is not entitled to an award of

       appellate attorney fees.


[44]   Affirmed.


[45]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 82A05-1707-DR-1700 | January 24, 2018   Page 28 of 28
