                                                                             Dec 11 2015, 8:35 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Adam C. Squiller                                          Douglas E. Johnston
      Squiller & Harley                                         Angelica N. Fuelling
      Auburn, Indiana                                           Tourkow, Crell, Rosenblatt & Johnston,
                                                                LLP
                                                                Fort Wayne, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Wayne Patton,                                            December 11, 2015

      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               17A04-1503-DR-137
              v.                                               Appeal from the DeKalb Superior
                                                               Court
                                                               The Honorable Monte L. Brown,
      Jessica Patton,                                          Judge
      Appellee-Petitioner.                                     Cause No. 17D02-1107-DR-191




      Bradford, Judge.



                                           Case Summary
[1]   Appellant-Respondent Wayne Patton (“Father”) and Appellee-Petitioner

      Jessica Patton (“Mother”) were divorced in January of 2013. Mother was

      granted sole legal and physical custody of the couple’s son W.P., born on

      February 9, 2007. Since 2011, Father’s visitation with W.P. has been

      Court of Appeals of Indiana | Opinion 17A04-1503-DR-137 | December 11, 2015                   Page 1 of 12
      supervised, and in 2012, Father was convicted of child seduction for fondling

      the breasts of his teenage daughter, who, incidentally, is now emancipated. In

      2014, Father moved to modify parenting time with W.P. and child support,

      seeking to have the supervision requirement lifted and his support obligation

      reduced to reflect the fact that one of three children was now emancipated.


[2]   Mother requested that a psychological evaluation of Father be performed, after

      which the evaluator found indications of defensiveness and poor judgment and

      decision-making. The evaluator also expressed doubts regarding Father’s

      psychological functioning. Following a hearing, the trial court denied Father’s

      motion for modification of visitation and child support obligation. Because we

      conclude that the trial court abused its discretion in refusing to alter Father’s

      child support obligation, we affirm in part, reverse in part, and remand with

      instructions.



                            Facts and Procedural History
[3]   Father was born on May 24, 1972, and, at some point, married Mother, with

      whom he had three children—daughters Ja.P. and Ju.P. and son W.P., who

      was born on February 9, 2007. On July 19, 2011, Mother petitioned for the

      dissolution of her marriage to Father. In July of 2011, Father was granted

      supervised visitation with W.P. at the Children’s First Center in Auburn. In

      2012, Father was convicted of child seduction for fondling Ja.P.’s breasts when

      she was sixteen years old. Father was initially ordered to pay $207.00 per week



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      in child support, which was modified by order of the trial court to $160.00 per

      week on March 26, 2013.

[4]   On July 3, 2014, Father petitioned for modification of visitation and child

      support, seeking removal of the supervision requirement and reduction of his

      support obligation. At some point, Mother requested a psychological

      evaluation for Father, which clinical and forensic psychologist Stephen Ross,

      Psy.D., performed. Dr. Ross interviewed Father and reviewed various

      documents regarding Father’s supervised visitation with W.P., his placement

      on the Indiana Sex Offender Registry following his child seduction conviction,

      and copies of excerpts from comic books Father had given to W.P. during

      visitation. Dr. Ross also performed a battery of psychological tests on Father.

[5]   On January 13, 2015, Dr. Ross issued his report. Dr. Ross noted that Father’s

      “defensiveness” compromised the validity of some of the testing. Appellant’s

      Addendum p. 5. Dr. Ross also considered the comics Father gave to W.P. to

      be inappropriate, depicting satanic-like figures and containing references to

      “‘half naked pictures of Brittney Spears’, and other sexually explicit references.”

      Appellant’s Addendum p. 6. Dr. Ross opined that he was “not so certain about

      [Father’s] psychological functioning” and that if Father did, in fact, provide

      W.P. with the comic books in question, “this would be an indication of poor

      judgment and decision-making on his part.” Appellant’s Addendum p. 6. Dr.

      Ross explicitly endorsed neither unsupervised nor supervised visitation but did

      recommend that Father and W.P. meet with a professional counselor in the

      event the trial court ordered unsupervised visitation.



      Court of Appeals of Indiana | Opinion 17A04-1503-DR-137 | December 11, 2015   Page 3 of 12
[6]   On January 14, 2015, the trial court held a hearing on Father’s motions. At the

      hearing, Father argued, inter alia, that his child support obligation should be

      modified because Ja.P. was emancipated, which represented a substantial and

      continuing change in circumstances. Mother argued that although Ja.P. was

      legally emancipated, she was still living with Mother and was in college. On

      February 27, 2015, the trial court issued its order, which provided as follows:

                                                 ORDER
              On January 14, 2015, Petitioner, Jessica Patton, appeared in
              person and by counsel, Douglas E. Johnston, and Respondent,
              Wayne Patton, appeared in person and by counsel, Adam C.
              Squiller, for hearing on Respondent’s Motion To Modify
              Parenting Time and Support filed July 3, 2014. The State of
              Indiana appeared by DeKalb County Deputy Prosecuting
              Attorney, Donald P. Shively. Hearing held and evidence
              received.
              Based on the record of the proceeding, the Court now FINDS,
              ORDERS, ADJUDGES, AND DECREES:
                  1. That the parties herein were granted a Decree of
                     Dissolution of Marriage on the 7th day of January, 2013.
                  2. That pursuant to said Decree, Petitioner was granted the
                     sole legal and physical custody of the minor children and
                     Respondent was granted parenting time with [W.P.] on a
                     restricted and supervised basis through the Children’s First
                     Center, Auburn, Indiana.
                  3. That Respondent was Ordered to pay child support
                     payments for and on behalf of the parties’ minor children
                     in the amount of $207.00 per week and weekly thereafter
                     until further Order of the Court, which Order was
                     modified to the sum of $160.00 per week on March 26,
                     2013.
                  4. That [Ja.P.] is 20 years old and is emancipated.

      Court of Appeals of Indiana | Opinion 17A04-1503-DR-137 | December 11, 2015   Page 4 of 12
            5. That Petitioner is gainfully employed earning
               approximately $440.00 per week.
            6. That Respondent is employed at Courier, Kendallville,
               Indiana, earning $17.22 per hour working an average of 40
               hours per week, for an average weekly gross income of
               $689.00.
            7. That Respondent incurs $43.00 per week in healthcare
               insurance expense for the parties’ minor children.
            8. That the Court has completed and filed of record in this
               case a Child Support Obligation Worksheet according to
               the Indiana Child Support Guidelines [which indicates a
               recommended support obligation of $136.42].
            9. That because the amount of support Ordered does not
               differ by more than 20% of the support presently
               calculated, no modification of support is Ordered.
            10. That Respondent’s Motion regarding Modification of
                Parenting Time applies only to [W.P.].
            11. That Respondent’s Evidence in Support of a Modification
                of Parenting Time concerning [W.P.] is largely based on
                the psychological evaluation and report associated
                therewith by Dr. Stephen Ross, introduced as
                Respondent’s Exhibit A.
            12. That having again carefully reviewed the report of Dr.
                Ross, the Court finds that it [is] neither an endorsement of
                unsupervised parenting time nor is it an endorsement of
                parenting time by Respondent according to the Indiana
                Parenting Time Guidelines.
            13. That the Court having considered the evidence in this case,
                including the nature of the comic books given or otherwise
                made available by Respondent to [W.P.] which conduct
                the Court finds, as did Dr. Ross, indicates poor judgment
                and decision making on Respondent’s part, and the lack of
                any degree of certainty associated with the report
                submitted by Dr. Ross regarding [W.P.]’s safety if

Court of Appeals of Indiana | Opinion 17A04-1503-DR-137 | December 11, 2015   Page 5 of 12
                 parenting time by Respondent is unsupervised, finds that
                 unrestricted and unsupervised parenting time may
                 endanger [W.P.]’s physical health and/or significantly
                 impair his emotional development. Accordingly, the
                 restriction and supervision of Respondent’s parenting time
                 shall continue as previously Ordered.
            14. That Petitioner consented and agreed to permit
                Respondent’s Mother (Mary Stockert) to act as the
                supervisor of Respondent’s parenting time with [W.P.],
                provided she agrees.
            15. That assuming Respondent’s Mother agrees to supervise
                said parenting time, at all times which parenting time shall
                be exercised in the direct presence of Respondent’s
                Mother, the Court authorizes Respondent’s Mother to act
                as a supervisor for said parenting time. Provided,
                however, said parenting time shall not include overnight
                parenting time with [W.P.] until further Order of the Court
                and shall occur not less often than one time per week for a
                period up to 6 hours per day, the date and time to be
                agreed upon by and between Petitioner and Respondent.
            16. That in the event Mary Stockert is unable or unwilling to
                provide the supervision required by this Order, said
                parenting time shall be exercised through the Children’s
                First Center, at Respondent’ s expense, or supervised by
                such other person or agency as the parties may agree upon
                from time to time.
            17. That pursuant to paragraph 4 in the summary of Dr.
                Ross’s report, said unsupervised parenting time shall begin
                only after Respondent and [W.P.] have jointly met with a
                professional counselor and only then upon the written
                recommendation of said counselor.
Appellant’s App. pp. 8-11 (emphases in original).


                           Discussion and Decision
Court of Appeals of Indiana | Opinion 17A04-1503-DR-137 | December 11, 2015   Page 6 of 12
                                               I. Visitation
[7]   Father contends that the trial court abused its discretion in denying his request

      for unsupervised visitation with W.P. “Indiana has long recognized that the

      rights of parents to visit their children is a precious privilege that should be

      enjoyed by noncustodial parents.” Duncan v. Duncan, 843 N.E.2d 966, 969

      (Ind. Ct. App. 2006) (citing Lasater v. Lasater, 809 N.E.2d 380, 400-01 (Ind. Ct.

      App. 2004)), trans. denied. “As a result a noncustodial parent is generally

      entitled to reasonable visitation rights.” Id. (citing Ind. Code § 31-17-4-1). “A

      court may modify an order granting or denying visitation rights whenever this

      modification would serve the best interests of the child.” Id. (citing Ind. Code §

      31-17-4-2).

              When reviewing the trial court’s resolution of the visitation issue,
              we reverse only when the trial court manifestly abused its
              discretion. In re Marriage of Julien (1979), Ind. App., 397 N.E.2d
              651. If the record reveals a rational basis supporting the trial
              court’s determination, no abuse of discretion occurred. Carter v.
              Dec (1985), Ind. App., 480 N.E.2d 564. We will not reweigh
              evidence or reassess the credibility of witnesses. Id.

      Pennington v. Pennington, 596 N.E.2d 305, 306 (Ind. Ct. App. 1992), trans. denied.

[8]   Indiana Code section 31-17-4-2 provides that:

              The court may modify an order granting or denying parenting
              time rights whenever modification would serve the best interests
              of the child. However, the court shall not restrict a parent’s
              parenting time rights unless the court finds that the parenting
              time might endanger the child’s physical health or significantly
              impair the child’s emotional development.


      Court of Appeals of Indiana | Opinion 17A04-1503-DR-137 | December 11, 2015   Page 7 of 12
[9]    Despite the statute’s use of the word “might,” for over twenty-five years

       Indiana Courts have interpreted the statute to requires evidence that parenting

       time “‘would’ (not ‘might’) endanger or impair the physical or mental health of

       the child.” Perkinson v. Perkinson, 989 N.E.2d 758, 763 (Ind. 2013) (quoting

       Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied).

[10]   Here, as Father points out, the trial court indicated in its order that it had found

       “that unrestricted and unsupervised parenting time may endanger W.P.’s

       physical health and/or significantly impair his emotional development.”

       (Emphasis added). Although Father argues that this is proof that the trial court

       applied the incorrect standard in evaluating his petition, we conclude that this

       does not establish the manifest abuse of discretion required to overturn the trial

       court’s judgment.

[11]   The transcript of the hearing and the trial court’s order indicates that the trial

       court carefully considered the record, including the report Dr. Ross prepared

       following his evaluation of Father. As mentioned, Dr. Ross noted Father’s

       defensive attitude and continued refusal to take responsibility for the actions

       that led to his criminal conviction; expressed doubts regarding Father’s

       psychological health and concern about the appropriateness of the comic books

       given to W.P.; and could not recommend unsupervised visitation. Dr. Ross

       concluded that the content in the comic books was inappropriate for a child of

       W.P.’s age, which the trial court agreed was a sign of poor judgment on

       Father’s part. All in all, we conclude that the record was sufficient to sustain

       the trial court’s decision not to immediately provide Father with unsupervised



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       visitation with W.P. and further indicates that the trial court found that

       unsupervised visitation at this point would endanger W.P.

[12]   In any event, the trial court’s order did provide immediate opportunities for

       more favorable visitation. Effective immediately and with Mother’s consent,

       the trial court’s order provides that Father’s mother is an acceptable supervisor

       for Father’s visitation with W.P. This would mean, inter alia, that visitation

       could occur someplace other than Children’s First Center, providing flexibility

       and presumably saving Father money. Finally, the order outlined a mechanism

       through which Father could obtain the unsupervised visitation with W.P. that

       he seeks in this appeal, provided that the two attend joint counseling and obtain

       the counselor’s written recommendation.

[13]   Overall, we conclude that the trial court took a thoughtful approach to the

       visitation issue and has struck a balance that adequately addresses the concerns

       of all, while still providing Father with opportunities for more rewarding

       parenting time with W.P., immediately and in the future. Father has failed to

       establish a manifest abuse of discretion in this regard.

                                           II. Child Support
[14]   Father also contends that the trial court abused its discretion in refusing to

       reduce his child support obligation from its current level of $160.00 per week.


               In reviewing a determination of whether child support should be
               modified, we will reverse the decision only for an abuse of
               discretion. In re E.M.P., 722 N.E.2d 349, 351 (Ind. Ct. App.
               2000). We review the evidence most favorable to the judgment
               without reweighing the evidence or reassessing the credibility of
               the witnesses. Id. An abuse of discretion occurs when the

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               decision is clearly against the logic and effect of the facts and
               circumstances before the court, including any reasonable
               inferences therefrom. Id.
       Cross v. Cross, 891 N.E.2d 635, 641 (Ind. Ct. App. 2008).


[15]   Indiana Code section 31-16-8-1 provides, in part, as follows:

               (b) Except as provided in section 2 of this chapter, modification
               may be made only:
                   (1) upon a showing of changed circumstances so substantial
                   and continuing as to make the terms unreasonable; or
                   (2) upon a showing that:
                        (A) a party has been ordered to pay an amount in child
                        support that differs by more than twenty percent (20%)
                        from the amount that would be ordered by applying the
                        child support guidelines; and
                        (B) the order requested to be modified or revoked was
                        issued at least twelve (12) months before the petition
                        requesting modification was filed.
[16]   Because the amount of child support ordered differs by less than 20% of the

       amount dictated by the Indiana Child Support Guidelines, Father is limited to

       arguing pursuant to subsection 1. See MacLafferty v. MacLafferty, 829 N.E.2d

       938, 940 (Ind. 2005) (“While the statute presents alternative methods of seeking

       modification—compliance with Subsection (1) or, in the alternative,

       compliance with Subsection (2)—only Subsection (1) is available to Father

       here. This is because the amount that Father would be ordered to pay applying

       the Indiana Child Support Guidelines, Ind. Child–Support Guideline 3 (West

       2003), differed by less than 20%[.]”).



       Court of Appeals of Indiana | Opinion 17A04-1503-DR-137 | December 11, 2015   Page 10 of 12
[17]   Father must establish that the trial court abused its discretion in refusing to find

       changed circumstances so substantial and continuing as to make his current

       obligation unreasonable. Under the circumstances of this case, we conclude

       that Father has established an abuse of discretion on the trial court’s part. It is

       undisputed that Ja.P. is now emancipated, thereby terminating Father’s support

       obligation. See Ind. Code § 31-16-6-6(a) (“The duty to support a child under

       this chapter, which does not include support for educational needs, ceases when

       the child becomes nineteen (19) years of age[.]”). Moreover, even assuming

       that Ja.P. is attending college, neither she nor Mother petitioned for educational

       support pursuant to Indiana Code section 31-16-6-6(d). See id. (“If a court has

       established a duty to support a child in a court order issued after June 30, 2012,

       the … parent or guardian of the child [or] child … may file a petition for

       educational needs until the child becomes nineteen (19) years of age.”). In

       short, Father no longer has any support obligation to Ja.P.


[18]   The trial court appears not to have addressed Father’s argument that Ja.P.’s

       emancipation was a substantial and continuing change, ordering only that the

       obligation may not be modified because it did not differ more than twenty

       percent from the guidelines. Although the trial court did not address the

       question, we have little trouble concluding that Ja.P.’s emancipation warrants a

       modification of Father’s support obligation. Father’s current obligation is based

       on support for three children, whereas he is now obligated to support only two.

       The Child Support Obligation Worksheet prepared for this case, based on

       Father’s support of Ju.P. and W.P, and attached to the trial court’s order,


       Court of Appeals of Indiana | Opinion 17A04-1503-DR-137 | December 11, 2015   Page 11 of 12
       recommends a support obligation of $136.42 per week. Mother does not argue

       that the recommended obligation is based on incorrect calculations or faulty

       assumptions, and we see no other reason to depart from it. Consequently, we

       remand with instructions to modify Father’s child support obligation to $136.42

       per week.


[19]   The judgment of the trial court is affirmed in part and reversed in part, and we

       remand with instructions.

       Baker, J., and Pyle, J., concur.




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