                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         Dec 13 2012, 8:47 am
any court except for the purpose of
establishing the defense of res judicata,
                                                                     CLERK
collateral estoppel, or the law of the case.                       of the supreme court,
                                                                   court of appeals and
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ATTORNEY FOR APPELLANT:                           ATTORNEY FOR APPELLEE:

ROBERT J. PALMER                                  MARK S. LENYO
May • Oberfell • Lorber                           South Bend, Indiana
Mishawaka, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

IN RE: THE MARRIAGE OF FREYBERGER:                )
                                                  )
MELISSA L. FREYBERGER,                            )
                                                  )
        Appellant-Defendant,                      )
                                                  )
                vs.                               )        No. 71A03-1206-MI-252
                                                  )
DUANE L. FREYBERGER,                              )
                                                  )
        Appellee-Plaintiff.                       )


                      APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable Michael P. Scopelitis, Judge
                               Cause No. 71D07-1010-MI-63



                                       December 13, 2012


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Duane Freyberger resides and works in Saudi Arabia. He and ex-wife Melissa

Freyberger share joint custody of their three children, with whom Duane is entitled to

summer parenting time.      Recently, the trial court modified Duane’s 2012 summer

parenting time rights to permit Duane to take the children on a six-week European

vacation. Melissa fears that if the children are taken out of the United States, Duane will

abduct them to Saudi Arabia, where Melissa will have no recourse for their return. She

appeals the trial court’s modification of Duane’s parenting time rights, claiming Duane

failed to meet his burden of proof that international parenting time is in the children’s

best interests. Concluding that Melissa’s case is moot, we dismiss her appeal. We also

deny Melissa’s request for appellate attorney’s fees.

                       FACTS AND PROCEDURAL HISTORY

       Melissa and Duane were married on January 25, 1997, and have three minor

children together. On May 5, 2008, a Colorado court dissolved Melissa and Duane’s

marriage and approved their final separation agreement, which calls for Melissa and

Duane’s joint custody of their children.      The separation agreement also designates

Melissa as the children’s primary residential custodian and grants Duane parenting time,

including summer vacation and holiday time. Following the dissolution of her marriage

to Duane, Melissa relocated to Indiana, where, on November 23, 2010, she registered her

and Duane’s separation agreement in St. Joseph Superior Court. That court ordered all

prior Colorado orders regarding parenting time to continue in full force and effect.

       On April 5, 2011, Duane informed the trial court that he had accepted a job in

Saudi Arabia and petitioned for the children to visit him there in the summer of 2011.


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Melissa objected to allowing parenting time in Saudi Arabia and advised that she would

not consent to the issuance of passports for the children. On April 19, 2011, the trial

court ordered Melissa and Duane to immediately apply for passports for the children and

that the passports be retained by Melissa. Additionally, the court ordered as follows:

              4. Both parents are prohibited from taking the children or causing
       the children to be taken out of the continental United States, unless agreed
       by the parties in writing or approved by written order of the court.

               5. Further hearing on the aforementioned pleadings is continued
       indefinitely to be reset upon request of either party when they have
       obtained sufficient information and documentation to proceed on any or all
       of the issues raised herein.

Appellant’s App. p. 19.

       On November 18, 2011, Duane requested an evidentiary hearing to determine if

the children could visit him in Saudi Arabia in the summer of 2012. A hearing was held

on April 4, 2012, at which Duane proposed a six-week vacation with his children,

traveling in France, Italy, Germany, Switzerland, Qatar, and Bahrain. On April 5, 2012,

the trial court issued its order, providing:

              3. [Duane] may exercise all or any parts of his summer parenting
       time with the three minor children of the parties anywhere in the United
       States and/or France, Switzerland, Germany, or Italy or any other countries
       in Europe.

              4. [Duane] shall not take the children to any Middle East countries,
       including but not limited to Saudi Arabia, Bahrain or Qatar at any time.

Appellant’s App. p. 42.

       Melissa filed a motion to reconsider, and a hearing was held on May 3, 2012. On

May 31, 2012, the trial court denied Melissa’s request to prohibit Duane from exercising

parenting time in Europe. The trial court further ordered that its April 5, 2012 order

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remain in full force and effect. Melissa filed notice of appeal on June 4, 2012, and this

court stayed the trial court’s order pending appeal on June 29, 2012.

                            DISCUSSION AND DECISION

              When reviewing a trial court’s determination of a parenting time
       issue, we will grant latitude and deference to our trial courts, reversing only
       when the trial court abuses its discretion. Duncan v. Duncan, 843 N.E.2d
       966, 969 (Ind. Ct. App. 2006), trans. denied. No abuse of discretion occurs
       if there is a rational basis supporting the trial court’s determination. Id.
       “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.” Id. We will not
       reweigh the evidence or judge the credibility of the witnesses. Id. In all
       parenting time issues, courts are required to give foremost consideration to
       the best interest of the child. Id.

Gomez v. Gomez, 887 N.E.2d 977, 983 (Ind. Ct. App. 2008).

                                     I. Best Interests

       Melissa argues that the trial court abused its discretion in modifying Duane’s

parenting time rights to allow international travel. Specifically, Melissa claims that

Duane failed to satisfy his burden of proof that international parenting time is in the

children’s best interests. Indiana Code section 31-17-4-2 authorizes the trial court to

“modify an order granting or denying parenting time rights whenever modification would

serve the best interests of the child.” Such a modification, however, must be supported

by a finding as to the child’s best interests. Hill v. Ramey, 744 N.E.2d 509, 513 (Ind. Ct.

App. 2001). Here, the trial court made no findings, in court or in its written order, to

support its modification of Duane’s parenting time.         Although this error ordinarily

requires remand for the trial court to enter findings as to the children’s best interests,

remand is inappropriate in this case because the issue is moot.


                                             4
                                       II. Mootness

       “The long-standing rule in Indiana courts has been that a case is deemed moot

when no effective relief can be rendered to the parties before the court.” In re Lawrance,

579 N.E.2d 32, 37 (Ind. 1991). Here, the trial court’s order addressed only Duane’s 2012

summer parenting time. Because this appeal has extended beyond that period, we are

unable to offer Melissa or Duane relief with respect to the trial court’s April 5, 2012

parenting time modification. We, therefore, accept Melissa’s acknowledgement that the

question at issue is moot. Melissa argues, however, that this case falls within the public

interest exception to Indiana’s mootness doctrine. “[A]lthough moot cases are usually

dismissed, Indiana courts have long recognized that a case may be decided on its merits

… when the case involves questions of ‘great public interest.’” Id. Such cases “typically

contain issues likely to recur.” Id.

       Melissa claims that the trial court’s grant of international parenting time presents a

question of great public interest because of the prevalence of international child

abductions by non-custodial parents. Melissa also claims that the issue is likely to recur,

noting that Duane has requested international parenting time on three occasions and will

likely continue such requests so long as he resides in Saudi Arabia. Further, Melissa

asserts her fear that Duane will abduct the children if he is able to exercise international

parenting time in the future. Melissa highlights that Saudi Arabia is not party to the

Hague Convention on the Civil Aspects of International Child Abduction, and she alleges

that Duane has threatened child abduction previously.

       Melissa’s argument is misplaced. As discussed above, the only substantive issue


                                             5
presented by this case is whether the children’s best interests permit a modification of

Duane’s 2012 summer parenting time to include international travel. This issue is not

capable of recurrence as contemplated by the public interest exception to the mootness

doctrine. What constitutes the best interests of a child is a question of fact that varies

from family to family and changes over time. Although the question may recur in the

general context of international parenting time, no conclusion within the authority of this

court can bear on future modification requests—whether made by Duane or other

members of the public—because a determination of the child’s best interests must be

made each time a modification in parenting time is sought. Melissa’s claims simply

invite this court to reweigh the evidence, which is an exercise in which we will not

engage. Gomez, 887 N.E.2d at 983. We conclude that the case does not present an issue

of great public interest and, therefore, we dismiss Melissa’s appeal as moot.

                                  III. Attorney’s Fees

       Melissa requests that we remand this case to the trial court for an assessment of

appellate attorney’s fees under Indiana Code section 31-17-7-1(a).              This statute

authorizes a trial court to award reasonable appellate attorney’s fees incurred in a

parenting time modification proceeding. See Thompson v. Thompson, 811 N.E.2d 888,

929 (Ind. Ct. App. 2004) (analyzing the identical statutory language found in section 31-

15-10-1(a), which provides for attorney’s fees in marriage dissolution proceedings).

Melissa, however, has failed to identify a basis upon which we should evaluate her

request. See Haley v. Haley, 771 N.E.2d 743, 753 (Ind. Ct. App. 2002) (“[T]he court

may consider such factors as the resources of the parties, the relative earning ability of


                                             6
the parties, and other factors which bear on the reasonableness of the award.”). As such

we can only turn to Indiana Appellate Rule 66(E), which authorizes this court to assess

damages, including attorney’s fees, if an appeal is “frivolous or in bad faith.” Our

discretion in this matter “is limited to instances ‘when an appeal is permeated with

meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.’”

Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001) (quoting Orr v.

Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987)). Finding that Duane has committed no

such abuse in the course of this litigation, we deny Melissa’s request for attorney’s fees.

       This appeal is dismissed.

ROBB, C.J., and BAKER, J., concur.




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