MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Feb 14 2020, 6:53 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Scott A. Norrick                                         Paul J. Watts
Attorney at Law, P.C.                                    Watts Law Office, P.C.
Anderson, Indiana                                        Spencer, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Janie L. Givens,                                         February 14, 2020
Appellant,                                               Court of Appeals Case No.
                                                         19A-DR-2309
        v.                                               Appeal from the Owen Circuit
                                                         Court
Troy Givens,                                             The Honorable John M. Plummer,
Appellee.                                                III, Special Judge
                                                         Trial Court Cause No.
                                                         60C02-1508-DR-103



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020               Page 1 of 13
[1]   Janie L. Givens (“Mother”) appeals from the trial court’s July 18, 2019 order

      on parenting time and contempt. We affirm.


                                       Facts and Procedural History

[2]   Mother and Troy Givens (“Father”) were married in 1987 and have six

      children. In August 2015, Mother filed a petition for dissolution of marriage at

      which time two of the children were minors. The two minor children had been

      adopted by Father and Mother. 1 In January 2016, the court entered a decree

      dissolving the parties’ marriage incorporating their settlement agreement. The

      settlement agreement provided Mother would retain the marital residence and

      divided the parties’ personal property and debts. In part, the agreement

      specified Mother was responsible for debt on a certain Capital One credit card.

      The agreement provided that the parties share joint legal custody of the minor

      children, Mother have primary physical custody, and Father pay child support

      and have a minimum of parenting time afforded by the Indiana Parenting Time

      Guidelines. The agreement also provided:

              Each of the parties agrees that in undertaking to pay certain obligations
              herein, that the said party shall hold the other party harmless for
              principal, interest, court costs and attorney’s fees together with any
              judgment rendered against the innocent party by virtue of the party
              obligated to pay, failing to fulfill that obligation, and an action being
              brought by the innocent party.




      1
        Charlotte Church, an assessing case manager for the Department of Child Services, testified the minor
      children “are of no blood relation to [Mother]” and are Father’s biological grandchildren. Transcript Volume
      II at 21.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020              Page 2 of 13
      Appellant’s Appendix Volume II at 50.


[3]   In May 2018, Father filed a Petition to Modify requesting custody of the minor

      children subject to Mother’s supervised and restricted parenting time because

      child in need of services (“CHINS”) actions had been filed. On July 10, 2018,

      the parties entered into a Joint Modification Agreement & Order (the “Joint

      Agreement”), signed by the parties and their attorneys, and on July 13, 2018,

      the court issued an order approving the Joint Agreement. The parties agreed

      Father would have sole legal and primary physical custody of the minor

      children. The Joint Agreement further provided:

              Parenting Time by [Mother] with the minor children shall only
              occur in a reasonable public arena, at reasonable and seasonable
              times as the parties may agree, and [Mother] shall not allow the
              children to have any contact with [T.], boyfriend of Mother, or [J.],
              Father of [Mother], subject to further order of this court. [Mother’s]
              Parenting Time shall not be unreasonably withheld.

      Id. at 98. In January 2019, the court issued an order stating Mother was unable

      to maintain mortgage payments on the marital residence which was about

      seven months in arrears and a foreclosure action had been filed, ordered Father

      be granted immediate possession to list the residence for sale, and gave Mother

      thirty days to vacate the premises.


[4]   On May 2, 2019, Mother filed a motion for emergency order allowing parenting

      time arguing that, since she moved from the family home on February 25, 2019,

      Father had denied her all visitations based solely on Father not having her

      current address, her current address is irrelevant to visitation because the Joint

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020   Page 3 of 13
      Agreement directed all visits to occur in a public place, and Father endeavored

      to alienate the children from her. On May 16, 2019, Father filed a Motion for

      Rule to Show Cause alleging Mother was ordered to pay the debt on the Capital

      One credit card and she had not made any payments since January 5, 2019, and

      he requested attorney fees.


[5]   On June 21, 2019, the court held a hearing. Mother testified that she informed

      Father there was no reason he needed her physical address and that he would

      not permit visitation. She stated “I’d like to have the visitation modified as far

      as when we did the visitation a year ago it was in a public place” and “since

      then [Father] argues about a park being a public place, he puts stipulations on -

      and we can only see each other for an hour, I mean none of that was in the

      agreement, and he tries to control everything about visitation.” Transcript

      Volume II at 5. On cross-examination, Mother provided a mailing address,

      stated it was her father’s address, and when asked if “that is the same [J.] who

      these children have alleged molested them,” replied “[i]t is the same, there have

      been allegations and no arrests have ever been made, and like I said it’s my

      mailing address, I don’t reside there.” Id. at 7-8. Mother indicated she was

      living in Linton. The court noted that a statute, effective July 1, 2019,

      absolutely required her to provide her home address. 2 The court stated “I am




      2
          Ind. Code § 31-17-2.2-0.5 (eff. July 1, 2019) provides:
                 Except as provided in section 4 of this chapter, an individual who has or is seeking:
                      (1) custody of a child;

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020                  Page 4 of 13
ordering you right now, here in open court to provide that information, and if

you fail to do so I will take that into consideration in my order” and asked

“[a]re you refusing to answer the question,” and Mother replied “Yes.” Id. at 9-

10. Mother indicated she was not living with T., they never lived together, and

he occasionally spent the night at her house. She indicated that one of her

children raised a molestation allegation against T. which was the subject of a

CHINS action, it was just an allegation, and she entered the Joint Agreement

which provided the children were not allowed contact with T. or J. She

indicated that she did not call one of her children a liar. When asked how she

felt about having visitation under the supervision of the children’s therapist, she




             (2) parenting time with a child; or
             (3) grandparent’s visitation under IC 31-17-5;
        shall at all times keep all other individuals who have or are seeking rights with the child (as
        described in subdivisions (1) through (3)) advised of the individual’s home address and all of the
        individual’s telephone numbers and electronic mail addresses. Information required by this
        section must be provided in writing, including electronically, to each individual entitled to the
        information.

Ind. Code § 31-17-2.2-4 provides:

        If a court finds that disclosure of the information required under IC 31-14-13-10.2 or section 0.5 or 3
        of this chapter creates a significant risk of substantial harm to the individual required to provide the
        disclosure or to the child, the court may order:
             (1) that the address, the telephone number, or other identifying information of the individual or
             child not be shared with other individuals or disclosed in the pleadings, other documents filed in
             the proceeding, or the final order;
             (2) that the information required under section 3 of this chapter be maintained by the clerk of
             the court in a secure location separate from the pending case file;
             (3) that the notice requirements under this chapter be waived to the extent necessary to protect
             the individual or child from significant risk of substantial harm; or
             (4) other remedial action that the court considers necessary to facilitate the legitimate needs of
             the parties and the best interest of the child.

Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020                   Page 5 of 13
      replied that she would not agree to any supervised visitation. She testified she

      was unable to pay the credit card debt, her check was $500 a week, $200 came

      out for child support, she did not pay rent but had utilities, and her last

      paycheck was for $582.


[6]   Father presented testimony of Charlotte Church, an assessing case manager for

      the Department of Child Services (“DCS”). Church testified DCS received a

      report that one of the children was sexually abused by Mother’s boyfriend, T.

      She indicated that she called Mother, Mother was upset and called the child a

      liar multiple times, it was evident Mother’s contact with the child was likely to

      alter the child’s statement, and the child was interviewed during which she

      disclosed allegations regarding J. According to Church, the CHINS case was

      dismissed on the basis of a custody agreement, and the children identified T. as

      a resident of Mother’s home. She indicated the CHINS case was dismissed

      based on Father’s assurance that the children were protected and Mother would

      not be given the opportunity to take them around T. or J. She indicated J. had

      a substantial criminal history. She further indicated that DCS substantiated

      sexual abuse by T. and J. and neglect by Mother. On cross-examination by

      Mother, Church indicated the children later disclosed they were told by Mother

      to lie. Mother asked “what were they supposed to lie about,” Church replied

      “[b]eing physically abused, punched on the head and pulled by the hair,”

      Mother stated “[t]hose weren’t the allegations that they were investigating so

      why would someone, I mean - ,” and Church stated “[t]hey were.” Id. at 24.

      Mother asked “[t]he allegations were they didn’t have food in the home, they


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020   Page 6 of 13
      didn’t have clothes, one of the boys had hit [one of the children] with a

      hammer, I mean all that stuff,” and Church replied “[a]nd drug use, yes,

      correct, all of those things, including physical abuse because I specifically

      remember talking to you about the physical abuse.” Id. Mother asked “I also

      have a lawsuit against you and DCS, correct,” and Church responded

      affirmatively. Id.


[7]   Father testified that Mother’s last payment on the Capital One credit card had

      been January 5th. He testified that he did not trust Mother or her father, and

      when asked if he had concerns that Mother would take the children, Father

      stated “[t]hey’ll hide them out.” Id. at 26. Father testified that Mother did not

      need to be alone questioning the children. He indicated that, when he listened

      to Mother on the phone with one of the children, the child told Mother it hurt

      when she hit her with a clothes hanger, to which Mother replied the child was a

      liar because it was a plastic clothes hanger, and at some point she also called the

      child a b---- or a lying b----. He indicated it concerned him that Mother moved

      and refused to provide an address and, when asked why, stated “[b]ecause for

      one the lawsuit, the type of actions that – her temper is out of this world and

      everything and I don’t trust her.” Id. According to Father, he told Mother

      there would not be further visits until she complied with the law and one of the

      children refused to talk to Mother and is scared of her. When asked, “[a]s of

      this point, because of all that’s going on, would you ask the Court to limit her,

      or allow you to limit her parenting time to therapeutic setting only until a

      counselor says it’s safe to let her have unsupervised visits,” Father answered “I


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020   Page 7 of 13
      would as long as it didn’t have anything to do with the lawsuit.” Id. at 27. He

      requested an order that Mother reimburse him for the part of his attorney fees

      related to the contempt on the Capital One credit card.


[8]   On July 18, 2019, the court issued an order finding Mother refused to disclose

      her new physical address to Father or the court, even after ordered to do so in

      open court, and this was a significant concern to the court given it must make

      decisions consistent with the best interests of the minor children. It found that

      Mother had lost credibility with the court by refusing to follow its order to

      disclose her address, and it had reasonable concerns that she will refuse to

      follow other court orders including those pertaining to her parenting time. The

      court found Mother testified her mailing address was her father’s house. It

      found Father presented credible evidence that one of the minor children

      reported Mother had been residing with T., who allegedly molested one of the

      children, and DCS had been made aware of the allegation. It found Father

      presented credible evidence that the children’s maternal grandfather had a

      lengthy criminal history, including molesting at least one of the minor children,

      and the children have reported to Father and to DCS that Mother told them to

      lie to DCS which Mother denies. It found Father presented evidence that

      Mother called one of the minor children “a lying b----.” Appellant’s Appendix

      Volume II at 39. The court found “a real risk exists that Mother will allow the

      minor children to be around men they should not be around for safety reasons.”

      Id. It further found the Parenting Time Guidelines are inapplicable at this time

      because it reasonably believes Mother is likely to endanger or fail to ensure the


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020   Page 8 of 13
       protection of the children’s physical health or safety which may impair their

       emotional development. The court ordered: “Mother’s parenting time with the

       minor children of the parties shall be and hereby is limited and restricted to

       having only supervised parenting time with the minor children under the

       therapeutic supervision and treatment of a licensed child or family therapist.”

       Id.


[9]    As to contempt, the court found Father presented sufficient evidence that

       Mother had willfully disobeyed its order by failing to pay the debt due and

       owing on the Capital One credit card and had not made any payments on the

       card since January 5, 2019. It rejected Mother’s testimony that she was unable

       to pay and found her net pay for the previous two-week pay period was $582

       and she did not have a rent or house payment. It found Mother in contempt,

       ordered her to pay the debt due and owing on the credit card, and indicated

       sanctions were withheld for ninety days to give her time to cure. The court

       found Father retained counsel to prosecute the contempt action and ordered

       Mother to reimburse Father $1,005 for the attorney fees he incurred to

       prosecute the contempt issue. Mother filed a motion to correct error, which the

       court denied.


                                                   Discussion

[10]   Mother claims the trial court erred in relying on Church’s testimony and in

       further restricting her visitation, the court’s findings do not support its order,

       and the court abused its discretion in ordering her to pay attorney fees. Father

       maintains the court’s findings are supported by the record, Mother placed her
       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020   Page 9 of 13
       parenting time at issue in her motion and at the hearing, the Joint Agreement

       identified T. and J. by name, and the court did not abuse its discretion in

       awarding attorney fees.


[11]   The Indiana Supreme Court has expressed a “preference for granting latitude

       and deference to our trial judges in family law matters.” In re Marriage of

       Richardson, 622 N.E.2d 178, 178 (Ind. 1993). Appellate deference to the

       determinations of trial court judges, especially in domestic relations matters, is

       warranted because of their unique, direct interactions with the parties face-to-

       face, often over an extended period of time. Best v. Best, 941 N.E.2d 499, 502

       (Ind. 2011). Thus enabled to assess credibility and character through both

       factual testimony and intuitive discernment, trial judges are in a superior

       position to ascertain information and apply common sense, particularly in the

       determination of the best interests of the involved children. Id.


[12]   When a trial court has made findings of fact, we apply the following two-step

       standard of review: whether the evidence supports the findings of fact, and

       whether the findings of fact support the conclusions thereon. Yanoff v. Muncy,

       688 N.E.2d 1259, 1262 (Ind. 1997). To determine that a finding or conclusion

       is clearly erroneous, our review of the evidence must leave us with the firm

       conviction that a mistake has been made. Id. We generally review rulings on

       motions to correct error for an abuse of discretion. Miller v. Rosehill Hotels, LLC,

       45 N.E.3d 15, 18 (Ind. Ct. App. 2015).




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020   Page 10 of 13
[13]   A decision about parenting time requires foremost consideration be given to the

       best interests of the child. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.

       2013); see also Ind. Code § 31-17-4-2 (“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.”). Parenting time decisions are reviewed for an abuse of

       discretion. Perkinson, 989 N.E.2d at 761. Indiana courts may deviate from the

       Parenting Time Guidelines upon making a written explanation indicating why

       the deviation is necessary or appropriate in the case. See Preamble, Ind.

       Parenting Time Guidelines.


[14]   Any issue not set out in the pleadings may be tried by the express or implied

       consent of the parties pursuant to Ind. Trial Rule 15(B). In re V.C., 867 N.E.2d

       167, 178 (Ind. Ct. App. 2007); Ind. Trial Rule 15(B) (“When issues not raised

       by the pleadings are tried by express or implied consent of the parties, they shall

       be treated in all respects as if they had been raised in the pleadings.”). Where,

       as here, the evidentiary hearing ends without objection to any new issue, the

       evidence actually presented at trial controls, and consequently neither pleadings

       nor theories proposed by the parties frustrate the trier of fact from finding the

       facts that a preponderance of the evidence permits. See In re V.C., 867 N.E.2d at

       178. In her motion, Mother alleged Father was denying her all visitations and

       sought visitation under the terms of the Joint Agreement. At the hearing,


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020   Page 11 of 13
       Mother indicated Father would not permit her to have parenting time until she

       disclosed where she lived, Father’s counsel questioned Mother regarding the

       concern that she would allow T. or J. to have access to the children and her

       interactions with the children, Father testified regarding Mother’s behavior and

       interaction with the children, and that he did not trust Mother or her father.

       Father’s counsel asked both Mother and Father whether the court should

       require that Mother’s parenting time be supervised by their therapist. The terms

       of Mother’s parenting time, including the extent to which it should be

       supervised, were tried with Mother’s consent.


[15]   We turn to the court’s findings and order. The parties entered into the Joint

       Agreement and do not dispute its terms. Mother did not object to Church’s

       testimony at the June 21, 2019 hearing. 3 Neither does she challenge the

       admission of her or Father’s testimony. The Joint Agreement provided Father

       would have sole legal and primary physical custody and Mother “shall not

       allow the children to have any contact with [T.], boyfriend of Mother, or [J.],

       Father of [Mother], subject to further order of this court.” Appellant’s

       Appendix Volume II at 98. The court entered findings regarding the

       importance of Mother disclosing where she physically resided, her lack of

       credibility, and her failure to comply with court orders. We will not reweigh

       the trial court’s consideration of Mother’s credibility. The testimony of Mother



       3
         At the hearing, Mother did not assert Church’s testimony should have been excluded from public access,
       and Mother has not complied with Ind. Appellate Rule 28(F)(3) (Procedures for Excluding Court Records
       from Public Access on Appeal).

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020             Page 12 of 13
       and Father at the hearing provides support for the court’s order that Mother’s

       parenting time be supervised by a child or family therapist. In light of the Joint

       Agreement and under these circumstances, and keeping in mind our deference

       to trial judges in family law matters, we cannot say we are left with a firm

       conviction a mistake has been made or the trial court’s decision is clearly

       erroneous.


[16]   Indiana trial courts have inherent authority to award attorney fees for civil

       contempt. McCallister v. McCallister, 105 N.E.3d 1114, 1120 (Ind. Ct. App.

       2018). The court has the authority to compensate the aggrieved party for losses

       and damages resulting from another’s contemptuous actions, including the

       award of attorney fees. Id. The parties’ settlement agreement, incorporated

       into the dissolution decree, provided Mother was responsible for the debt on the

       Capital One credit card, and each party agreed to hold the other harmless for

       amounts incurred, including attorney fees, by virtue of the obligated party’s

       failure to fulfill an obligation. The court found the evidence was sufficient to

       show Mother had willfully disobeyed its prior order in not making any payment

       on the credit card since January 2019 and rejected her claim she was unable to

       pay. The court ordered Mother to reimburse Father those attorney fees

       incurred to prosecute the contempt issue. We find no abuse of discretion.


[17]   For the foregoing reasons, we affirm the trial court’s July 18, 2019 order.


[18]   Affirmed.


       Baker, J., and Riley, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2309 | February 14, 2020   Page 13 of 13
