      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                FILED
      regarded as precedent or cited before any                            Nov 09 2018, 8:46 am

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


      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Katherine A. Harmon                                      Andrea L. Ciobanu
      Jared S. Sunday                                          Ciobanu Law, PC
      Mallor Grodner, LLP                                      Indianapolis, Indiana
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gillian G. Moorman,                                      November 9, 2018
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               18A-JP-1051
              v.                                               Appeal from the Grant Superior
                                                               Court
      Kyle W. Andrews,                                         The Honorable Warren Haas,
      Appellee-Petitioner.                                     Judge
                                                               Trial Court Cause No.
                                                               27D03-1208-JP-431



      Mathias, Judge.

[1]   Gillian G. Moorman (“Mother”) appeals the Grant Superior Court’s April 12,

      2018 order modifying parenting time in favor of Kyle Andrews (“Father”) and



      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018              Page 1 of 14
      finding Mother in contempt. Mother presents several issues on appeal, which

      we restate as:


              I. Whether the trial court erred by finding Mother in contempt of
              the 2016 parenting time order in this matter and the Indiana
              Parenting Time Guidelines;


              II. Whether it was reversible error to hold an in camera interview
              of the child; and


              III. Whether the trial court erred by basing its decision solely on
              the in camera interview.


      We affirm.


                                 Facts and Procedural History
[2]   T.A. was born to Mother and Father in July of 2011. Throughout T.A.’s life,

      Mother and Father have had difficulty co-parenting. When Mother and

      Father’s relationship declined shortly after T.A.’s birth, in 2012, Father filed a

      Verified Petition to Establish Paternity and Determine Custody, Parenting

      Time, and Child Support. Mother and Father initially agreed to joint legal and

      physical custody of T.A., and the court entered an agreed order awarding the

      same with specific parenting time orders.


[3]   After some time, Mother and Father agreed that joint physical and legal

      custody was unworkable due to an inability to co-parent. In April of 2015,

      Father filed a Petition to Modify Custody. After a two-day hearing, on

      September 28, 2016, the trial court agreed that Mother and Father were unable

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 2 of 14
      communicate effectively and awarded Mother sole custody of T.A. The order

      adopted the regular parenting time schedule pursuant to the Indiana Parenting

      Time Guidelines (“IPTG”) and directed the parties to have Mother designated

      as the representative payee for Child’s Social Security benefits. Father appealed

      this order, and a panel of our court affirmed all aspects of the trial court’s order.

      Andrews v. Moorman, 86 N.E.3d 239 (Ind. Ct. App. 2017), trans. denied.


[4]   On December 22, 2017, Father filed a Motion for Change of Venue from the

      Judge as well as the Petition to Modify Parenting Time and Affidavit for

      Citation that give rise to the instant appeal.1 In his Affidavit for Citation, Father

      alleged that Mother was in violation of the IPTG because she refused to allow

      Father to have T.A. when she was unable to care for the child. Father also

      alleged that Mother refused to meet at the court-ordered location for exchange.

      In separate motions, he requested that T.A. be placed in counseling and that the

      court conduct an in camera interview of T.A. in order to assist the court in

      making its determination.2




      1
        Judge Spitzer presided over the two-day hearing held on August 29–30, 2016, regarding Father’s petition to
      modify custody. Andrews v. Moorman, 86 N.E.3d 239 (Ind. Ct. App. 2017), trans. denied. On the second day of
      this hearing, Judge Spitzer disclosed on the record that he had previously represented Butterworth industries,
      owned by Mother’s extended family, approximately ten years prior to these proceedings. Id. While Father’s
      attorney indicated no concern at the time of the disclosure, Father argued on appeal that Judge Spitzer
      should have recused himself in this matter decided on May 30, 2017. Id. Although a panel of our court found
      no error by Judge Spitzer, Father’s motion for change of judge was granted. Id. Special Judge Haas presided
      over the proceedings that give rise to the instant appeal.
      2
        Mother also filed a notice of intent to relocate. The trial court heard the matter in conjunction with Father’s
      requests that are currently being considered in this appeal. Father objected to the request to relocate;
      however, the trial court granted mother’s request. Neither party appeals this determination, and Mother’s
      relocation is not currently at issue.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018                    Page 3 of 14
[5]   The trial court held a hearing on Father’s motion for contempt. In support of

      his requests, Father called his previous attorney, T.A.’s paternal grandmother,

      and himself. Mother served as her own sole witness.


[6]   Father’s previous counsel testified that, based on his observations, Father and

      T.A. had a close bond. He had observed Father and T.A. interacting on a

      couple of occasions, playing miniature golf and visiting a carnival. Based on his

      conversations with Father, he believed that T.A. was Father’s first priority.


[7]   T.A.’s paternal grandmother, Susan Stengel (“Stengel”), testified that she

      wishes to see T.A. more often but is also hesitant to encroach on Father’s

      limited parenting time. She had been able to see T.A. outside of Father’s

      parenting time on a couple of occasions and had asked Mother to see T.A.

      about three or four times since November 1, 2016. Stengel testified that she had

      asked Mother if T.A. could attend a family reunion, and Mother never

      responded. Stengel attended grandparent’s day at Mother’s invitation and the

      Christmas program at T.A.’s school. She also indicated that she believed T.A.

      and Father to be very close. She expressed concern for T.A.’s emotional state.

      In Stengel’s opinion, T.A. appeared to be emotional and anxious.

[8]   Father testified that Mother had been taking T.A. with her to work at her dental

      office instead of allowing him parenting time. He would like to care for T.A.

      while she was at work with Mother and “[a]ny available time.” Tr. p. 41. If he

      had more time with T.A., he would be agreeable to doing homework with her

      and enrolling her in extracurriculars. Father believed that extended family


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 4 of 14
      members on Mother’s side were receiving time with T.A. that was supposed to

      be offered to him. He also testified that, until the last few weeks prior to the

      hearing, he had to pick up T.A. from Mother’s workplace instead of the court-

      ordered location. On one occasion, Father had observed a man whom he could

      not identify dropping T.A. off at her school. On the date of the hearing, Father

      was unaware that Mother had sought out any counseling for T.A. Father was

      also concerned that T.A. had been tardy to school on nine separate occasions

      and that T.A. had been truant on two occasions. Mother and Father had not

      discussed the tardies and truancies. Lastly, Father testified that he was

      concerned about T.A.’s emotional state.


[9]   Mother testified that she works in her step-grandmother’s pediatric dental clinic

      and that she has been taking T.A. to work with her after T.A. finishes school.

      Mother testified that other employees also bring their children to work and that

      Mother watches T.A. while T.A. is at the office with her. She and T.A. stay at

      work on the days in question until Mother has to pick up T.A.’s half-brother

      around 4:30 or 5:00 p.m. Mother testified that T.A. had been tardy to school

      because, although she was dropped off at school on time, T.A. was not going to

      class on time. Mother dated someone for a period of time, and he was

      continuously in her home, but this man was no longer in the picture at the time

      of the hearing. T.A. does occasionally spend overnights with Mother’s parents.

      Mother testified that she had been letting T.A. spend time with Mother’s

      brother who is fighting cancer. She had researched counselors and made an

      appointment with a counselor for T.A., although she had not yet told Father.


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 5 of 14
       She did not make this appointment until Father filed his petition for counseling.

       Mother testified that she has noticed T.A. being anxious but only since Father

       filed the petitions at issue. Mother testified that T.A. appeared glossy-eyed and

       smelled “dingy” when T.A. arrived home from time with her Father. Tr. p. 86.


[10]   After the hearing, the trial court conducted an in camera interview of T.A. After

       the hearing and interview, the trial court found Mother in contempt but issued

       no sanctions and allowed Mother to purge herself of contempt by following all

       orders. The trial court also expanded Father’s parenting time. In addition to

       relevant times as prescribed in the IPTG, the trial court extended Father’s mid-

       week parenting time to include an overnight and extended Father’s weekend

       parenting time, allowing Father to keep T.A. overnight from Sunday evening

       through Monday. The trial court also explicitly noted that Father shall have the

       Child for “additional parenting time at all times when Mother is working or

       attending classes or is otherwise unavailable to care for the Child.” Appellant’s

       App. p. 34. Mother filed the instant appeal.


                                      Discussion and Decision
[11]   “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), trans. denied. “[N]ot only

       does a noncustodial parent have a presumed right of parenting time, but the

       child has the correlative right to receive parenting time from the noncustodial

       parent because it is presumed to be in the child’s best interest.” Perkinson v.

       Perkinson, 989 N.E.2d 758, 764 (Ind. 2013). Thus, a noncustodial parent is
       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 6 of 14
       “generally entitled to reasonable visitation rights.” Id. at 762 (quoting Duncan,

       843 N.E. 2d at 969).


[12]   “A trial court is empowered to specify and enforce the visitation rights of the

       non-custodial parent pursuant to the Indiana Code.” Id. Courts are to “give

       foremost consideration to the best interests of the child.” Id. at 761 (quoting

       Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App. 1998), trans. denied). As

       such, parenting time may be modified whenever modification would serve the

       best interest of the child. Miller v. Carpenter, 965 N.E.2d 104, 110 (Ind. Ct. App.

       2012). Thus, unlike a modification of physical custody, a modification of

       parenting time does not require a showing of substantial change. Id.


[13]   Upon review of a trial court’s determination of a visitation issue, we grant

       latitude and deference to our trial courts, reversing only when the trial court

       manifestly abuses its discretion. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002);

       Lasater v. Lasater, 809 N.E.2d 380, 400 (Ind. Ct. App. 2004). Therefore, on

       appeal, it is not enough 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. Kirk, 770 N.E.2d at 307. No abuse of discretion

       occurs if there is a rational basis in the record supporting the trial court’s

       determination. Lasater, 809 N.E.2d at 400. We will neither reweigh evidence

       nor judge the credibility of witnesses. Id. “We will not substitute our own

       judgment if any evidence or legitimate inferences support the trial court’s

       judgment.” Baxendale v. Raich, 878 N.E.2d 1252, 1257–58 (Ind. 2008).



       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 7 of 14
                                                    I. Contempt

[14]   “Whether a person is in contempt of a court order is a matter left to the trial

       court’s discretion.” Evans v. Evans, 766 N.E.2d 1240, 1243 (Ind. Ct. App. 2002)

       (citing Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App. 1999), trans.

       denied). We will reverse the trial court’s finding of contempt only where an

       abuse of discretion has been shown, which occurs only when the trial court's

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

       Id. When we review a contempt order, we neither reweigh the evidence nor

       judge the credibility of the witnesses. MacIntosh v. MacIntosh, 749 N.E.2d 626,

       629 (Ind. Ct. App. 2001), trans. denied. Mother bears the burden of showing that

       her violation was not willful. Williamson v. Creamer, 722 N.E.2d 863, 865 (Ind.

       Ct. App. 2000).


[15]   In seeking a contempt citation against Mother, Father alleged that Mother

       violated the IPTG including the provision entitled “Opportunity for Additional

       Parenting Time.” Father also contended that Mother had altered the location

       for exchanging T.A. The operative provision of the IPTG states:


               3. Opportunity for Additional Parenting Time. When it
               becomes necessary that a child be cared for by a person other
               than a parent or a responsible household family member, the
               parent needing the care shall first offer the other parent the
               opportunity for additional parenting time, if providing the child
               care by the other parent is practical considering the time available
               and the distance between residences. The other parent is under
               no obligation to provide the child care. If the other parent elects
               to provide this care, it shall be done at no cost and without
               affecting child support. The parent exercising additional

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 8 of 14
               parenting time shall provide the necessary transportation unless
               the parties otherwise agree.


       IPTG § 1(C)(3). The trial court specifically noted that the contempt finding

       “concerns her conduct before she arranged to enroll the Child in Preschool and

       then picked her up from Preschool and took the Child to Mother’s place of

       employment.” Appellant’s App. p. 33


[16]   When T.A.’s preschool ended at 2:30 in the afternoon, Mother would leave

       work to pick up T.A. from preschool and take her to Mother’s workplace.

       Mother routinely left work in time to pick up her other child, T.A.’s half-

       brother from pre-school by 5:00 p.m. Mother had initially planned to enroll

       T.A. in day care after her school was over. However, Father had indicated to

       Mother that he wanted to take T.A. as additional parenting time during the

       time Mother planned to have T.A. in day care. After this exchange between

       Mother and Father, Mother changed her plans. She did not enroll T.A. in day

       care, but instead picked up T.A. from preschool and took T.A. to work with

       Mother. Mother indicated to Father that if he picked up T.A. when she was

       done with school, she would “call the cops” on him. Tr. p. 30.

[17]   Mother testified that she took T.A. took to work with her and that her usual job

       duties included cleaning and filling teeth, talking to patients, completing

       paperwork, scheduling appointments, and other front office duties.

       Undisputedly, Father was available and willing to care for the child during the

       time child was at work with Mother.


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 9 of 14
[18]   While Mother was able to leave work to pick up T.A. from preschool, she

       directed Father to pick up T.A. from Mother’s workplace instead of the court-

       ordered location for exchange. Father acquiesced to this demand for some time

       in order to see his child. However, in the weeks preceding the hearing, Mother

       began meeting him at the court-ordered location for exchange.


[19]   Based on the evidence before it, the trial court did not find Mother’s claim that

       she was actively parenting during the time T.A. accompanied her to work to be

       credible. The trial court also determined that Mother was intentionally acting to

       rearrange her schedule to deprive Father of legitimate and beneficial contact

       with the Child. We cannot say that the finding of contempt was against the

       logic and effect of the circumstances before the trial court. To find otherwise

       would require us to reweigh the evidence and judge the credibility of the

       witnesses, which we will not do.


                                            II. In Camera Interview

[20]   We now turn to Mother’s arguments concerning the in camera interview of T.A.

       First, she argues that the trial court lacked statutory authority to conduct the in

       camera interview. Second, she argues that the trial court erred by basing its

       decision solely on the results of the in camera interview. We disagree with

       Mother on both contentions.


[21]   Initially, Mother argues that the trial court lacked statutory authority to conduct

       the in camera interview of T.A. More specifically, Mother argues that the “the

       sole basis for an in-camera interview in a parenting time modification situation .

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 10 of 14
. . is to determine if a parent is a danger to a child’s physical or emotional

health, such that parenting time should be restricted.” Appellant’s Br. at 13.

Indiana Code Section 31-17-4-1 permits a trial court to conduct an in camera

interview of a child in chambers within parenting time proceedings. The statute

reads:


         (a) A parent not granted custody of the child is entitled to
         reasonable parenting time rights unless the court finds, after a
         hearing, that parenting time by the noncustodial parent might
         endanger the child's physical health or significantly impair the
         child's emotional development.


            (b) The court may interview the child in chambers to assist the
         court in determining the child's perception of whether parenting
         time by the noncustodial parent might endanger the child's
         physical health or significantly impair the child's emotional
         development.


            (c) The court may permit counsel to be present at the
         interview. If counsel is present:


                 (1) a record may be made of the interview; and


                 (2) the interview may be made part of the record for
                 purposes of appeal.


Ind. Code § 31-17-4-1. Where courts interpret a statute, courts must give words

used in the statute common and ordinary meaning. Spaulding v. Int’l Bakers

Servs. Inc., 550 N.E.2d 307, 309 (Ind. 1990). We do not overemphasize a strict

literal or selective reading of individual words. Id.


Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 11 of 14
[22]   Based on a plain reading of the statute, we are not persuaded. We can find no

       language in the statute allowing its use solely for the purposes of restriction of

       parenting time. The statute plainly and simply provides an in camera interview

       as an option to assist trial courts in determining whether parenting time would

       physically or emotionally endanger a child. Moreover, Mother’s suggested

       reading of the statute would unnecessarily prohibit trial courts from exercising

       their discretion in effectuating the best interests of children as facts and

       circumstances arise within parenting time matters.


[23]   The history of the case in the instant matter shows evidence of concern for

       T.A.’s emotional state because of Mother’s and Father’s inability to co-parent

       effectively. Even more so, the testimony heard by the trial court immediately

       prior to the in camera interview reflected continued concern for T.A.’s emotional

       state. The trial court acted within its statutory authority to determine parenting

       time as it is suited to the best interests of the child when it conducted the in

       camera interview of T.A., and we can find no error.


[24]   We now turn to Mother’s argument that the trial court erred by relying solely

       on the in camera interview in order to increase Father’s parenting time.3 While




       3
        Mother also asserts the in camera interview was conducted on the record and outside of the presence of
       counsel. Immediately before the interview, the trial court indicated to the parties that only the court reporter
       would be present for the interview. No objection to the absence of counsel was presented at that time. Tr p.
       147. The trial court noted that a record would be available if there is an appeal and reminded counsel for both
       parties of their professional obligations not to share whatever they may hear or read. Counsel for both
       Mother and Father indicated their intent to abide by these professional obligations; however, no objection
       was made at any point during this discussion. Tr. pp. 147–48. Since no objection to the absence of counsel


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018                  Page 12 of 14
       trial courts are afforded latitude in parenting time decisions, a trial court’s

       judgment “may not rest primarily upon the results of a private in camera

       interview.” McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. Ct. App. 1997),

       trans. denied.


[25]   In support of her argument that the trial court erred by relying solely on the in

       camera interview, Mother relies primarily on McCauley, supra. In McCauley, a

       panel of our court determined that the trial court abused its discretion by relying

       primarily upon the results of a private in camera interview in order to deny

       visitation to a parent, as it could find no evidence in the remainder of the record

       supporting the trial court’s decision. Id. Mother asserts that because the trial

       court did not appear to be leaning in favor of Father’s requests prior to the in

       camera interview, and then after the interview, decided to find Mother in

       contempt and increased Father’s parenting time, we can speculate that the trial

       court relied solely on the in camera interview. We decline Mother’s invitation to

       speculate. Instead, we review the evidence contained in the record.


[26]   Upon review, we are able to locate sufficient evidence in the record outside of

       the in camera interview that supports the trial court’s findings and conclusions

       regarding Father’s parenting time. Mother testified that she took T.A. to work

       with her and that her job duties included cleaning and filling teeth, talking to




       was presented at the time the interview was conducted, this argument was not properly preserved for appeal.
       Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000).



       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018              Page 13 of 14
       patients, completing paperwork, scheduling appointments, and other front

       office duties. Father testified that he was willing and able to care for T.A.

       during the time Mother had her at her place of work. This testimony from

       Mother and Father alone is sufficient for the trial court to determine that

       Mother’s assertion that she was actively parenting during the time T.A. was at

       work with her was not credible. Any further request by Mother for this court to

       determine otherwise is a request for us to reweigh the evidence and judge the

       credibility of the witnesses, which we will not do.


                                                 Conclusion
[27]   The trial court did not abuse its discretion by finding Mother in contempt. We

       can find no error by the trial court when it conducted an in camera interview of

       T.A. Additionally, because sufficient evidence exists in the record outside of the

       in camera interview that supports the trial court’s expansion of father’s parenting

       time, we conclude that the trial court did not rely solely on the in camera

       interview to make its determination and therefore did not err.


[28]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1051 | November 9, 2018   Page 14 of 14
