MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Oct 17 2018, 9:36 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
Cara Schaefer Wieneke                                     Betty M. Harrington
Wieneke Law Office, LLC                                   Harrington Law, P.C.
Brooklyn, Indiana                                         Danville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                         October 17, 2018
G.S.                                                      Court of Appeals Case No.
                                                          18A-JP-1306
                                                          Appeal from the Hendricks
S.S.,                                                     Superior Court
Appellant-Petitioner,                                     The Honorable Mark A. Smith,
                                                          Judge
        v.
                                                          Trial Court Cause No.
                                                          32D04-0904-JP-2
C.S,
Appellee-Respondent.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018               Page 1 of 8
                                            Case Summary
[1]   S.S. (“Father”) and C.S. (“Mother”) have one child together, G.S. (“Child”).

      After Father—who has struggled with substance abuse—moved from Indiana

      to Florida, the trial court entered a parenting-time order granting Father the

      ability to exercise parenting time only in Indiana. Father now appeals, arguing

      that the trial court abused its discretion by restricting parenting time in this

      manner because the trial court failed to make a specific finding under Indiana

      Code Section 31-14-14-1 that would support the burdensome restriction.1


[2]   We remand with instructions that the trial court either (1) enter an order with

      findings that support a parenting-time restriction or (2) enter an order without a

      restriction. We also instruct the trial court to correct certain scrivener’s errors.



                             Facts and Procedural History
[3]   Child was born in October 2005. Mother had primary physical custody, and, in

      2015, the trial court entered an order granting Father unsupervised parenting

      time in accordance with the Indiana Parenting Time Guidelines. Thereafter,

      Father typically exercised his parenting time at the residence of his mother

      (“Paternal Grandmother”), not far from Mother’s residence. In April 2017,




      1
       Mother and Father direct us to Indiana Code Section 31-17-4-2. However, because this case arises from the
      paternity context and not the dissolution context, it appears that the applicable statute is Indiana Code
      Section 31-14-14-1, which is substantially similar to Indiana Code Section 31-17-4-2. See In re Paternity of
      K.J.L., 725 N.E.2d 155 (Ind. Ct. App. 2000) (noting the potential for statutory differences in each context).



      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018                  Page 2 of 8
      Father moved to Florida and filed a Notice of Intent to Relocate. The next

      month, both Father and Mother moved to modify parenting time. During the

      pendency of the motions, Father traveled to Indiana to exercise parenting time.


[4]   The trial court eventually held a hearing in May 2018, after which it entered an

      order granting Father “unsupervised parenting time in Indiana, at [Paternal

      Grandmother’s] home, pursuant to the Indiana Parenting Time Guidelines.” 2

      Appellant’s App. Vol. II at 93. Accompanying the order were findings and

      conclusions, among them, that Father “has a history of abusing alcohol and

      admits he is an alcoholic.” Id. at 91. The trial court found that Child—who

      was twelve years old as of the hearing—“has a heightened awareness of the

      signs of a person under the influence of alcohol because he has been around

      [Father] while [Father] was under the influence,” and that Child “worries about

      what would happen if he were in Florida for parenting time and [Father] were

      drinking because he does not know anyone there and would not know what to

      do.” Id. The trial court further found that


              [Father]’s request for unsupervised parenting time with [Child] in
              Florida is not in [Child’s] best interest. [Father] has, at most, just
              over 90 days’ sobriety from alcohol. [Father] has a history of not
              being honest regarding his abuse of alcohol. The parties live 12
              hours apart. There are no safeguards available to [Child] in



      2
        Father points out that the order refers to Child’s maternal grandmother, a reference that appears to be a
      scrivener’s error, as maternal grandmother was not mentioned at the hearing (although the guardian ad litem
      report also appears to substitute maternal grandmother for Paternal Grandmother). In her brief, Mother
      appears to agree that the court meant Paternal Grandmother, describing the order as granting “parenting time
      . . . at paternal grandmother’s home in Indiana.” Appellee’s Br. at 7. When quoting or referring to the trial
      court’s order, we substitute Paternal Grandmother for any reference to maternal grandmother.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018                 Page 3 of 8
               Florida like the safeguards he has while having parenting time
               with [Father] at [Paternal Grandmother’s] house, a few minutes
               from [Mother’s] home. Even with a Soberlink device,3 the
               distance does not allow for a rapid response by [Mother] or
               [Paternal Grandmother] in the event of an emergency. [Father]
               has not shown an understanding that long[-]term sobriety
               requires more than sticking his big toe in the recovery pool. He
               provided weekly AA attendance meeting sheets for the period
               between April 2017 and September 2017, yet he still drank for
               multiple days while in Mexico in February 2018 and really
               showed no regret or remorse. He now claims to be attending AA
               meetings twice per week. He offered no evidence of the same
               aside from his self-serving testimony, which the Court finds
               highly questionable given his history of dishonesty about his
               alcoholism. While he is to be commended for 90 days clean,
               [Father] must demonstrate that he is willing to submerge his
               body into recovery, long term.


      Id. at 93.


[5]   Father now appeals.



                                   Discussion and Decision
[6]   “This is ultimately a decision about parenting time, which requires us to give

      foremost consideration to the best interests of the child.” Perkinson v. Perkinson,

      989 N.E.2d 758, 761 (Ind. 2013) (quotation marks omitted). Furthermore, we




      3
        There was evidence that a handheld Soberlink device would enable Father to take breath tests at certain
      times while Child was in his care, and that, depending on the level of subscription to the service, those results
      could be immediately transmitted to Mother via text message or e-mail.

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018                     Page 4 of 8
      review parenting-time decisions for an abuse of discretion, id., which occurs

      when the trial court’s decision is against the logic and effect of the facts and

      circumstances before it or the reasonable inferences drawn therefrom. In re

      Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002). Here, neither Father nor

      Mother requested special findings and conclusions thereon. Nonetheless,

      where “provided by . . . statute,” the “court shall make special findings of fact

      without request,” Ind. Trial Rule 52(A), and “[t]he court’s failure to find upon a

      material issue upon which a finding of fact is required . . . shall not be resolved

      by any presumption and may be challenged,” T.R. 52(D). Where findings are

      otherwise sua sponte, we look to “whether the evidence supports the findings,

      and whether the findings support the judgment.” Steele-Giri v. Steele, 51 N.E.3d

      119, 123 (Ind. 2016). “Any issue not covered by the findings is reviewed under

      the general judgment standard, meaning a reviewing court should affirm based

      on any legal theory supported by the evidence.” Id. at 123-24.


[7]   In conducting our review, we “neither reweigh the evidence nor judge the

      credibility of the witnesses,” Perkinson, 989 N.E.2d at 761, and we give “due

      regard . . . to the opportunity of the trial court to judge the credibility of the

      witnesses,” T.R. 52(A). We “shall not set aside the findings or judgment unless

      clearly erroneous.” Id. A trial court’s findings are clearly erroneous when the

      record contains no facts to support them either directly or by inference; a

      judgment is clearly erroneous if it applies the wrong legal standard to properly

      found facts. Town of Fortville v. Certain Fortville Annexation Territory Landowners,

      51 N.E.3d 1195, 1198 (Ind. 2016).

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018   Page 5 of 8
[8]    Both the instant parenting-time order and the previous order provide that

       Father is to receive parenting time in accordance with the Indiana Parenting

       Time Guidelines. However, the instant order specifies that Father—who now

       lives in Florida—is to exercise his parenting time in Indiana at the residence of

       Paternal Grandmother. Indiana Code Section 31-14-14-1(a) provides:


               A noncustodial parent is entitled to reasonable parenting time
               rights unless the court finds, after a hearing, that parenting time
               might:


                        (1) endanger the child’s physical health and well-being; or


                        (2) significantly impair the child’s emotional development.


[9]    Father asserts that the trial court failed to make an express finding that would

       support the burdensome geographic constraints on his parenting time. Father

       correctly points out that Indiana courts have interpreted the word “might” in

       this context to mean “would.” See Perkinson, 989 N.E.2d at 764. Thus,

       according to Father, reversal is warranted because the court failed to expressly

       find that parenting time in Florida would (1) endanger Child’s physical health

       and well-being; or (2) significantly impair Child’s emotional development.


[10]   Mother appears to concede that the trial court “did not expressly” make a

       finding under the statute. Appellee’s Br. at 15. However, Mother asserts that

       the other findings nonetheless support the parenting-time restriction. She

       directs us to J.M. v. N.M., 844 N.E.2d 590 (Ind. Ct. App. 2006), trans. denied, in

       which this Court affirmed a parenting-time order that restricted a parent to only

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018   Page 6 of 8
       supervised parenting time. Although that restrictive order lacked an express

       finding under the statute, the trial court had specifically found that the parent’s

       behavior was detrimental to the mental health, well-being, emotional stability,

       and development of the child—a finding that this Court determined was

       “tantamount to a finding that unsupervised parenting time would significantly

       impair . . . emotional development.” J.M., 844 N.E.2d at 600.


[11]   Here, however, the court appeared to express concern about Child’s welfare in

       light of Child’s past experiences with Father in addition to Father’s history of

       substance abuse, dishonesty, and relatively brief sobriety—but the court fell

       short of finding that Child would be endangered or developmentally impaired by

       time with Father in Florida. Although the court generally found that time in

       Florida was not in Child’s best interests, the order reads as though Child might

       be endangered—speculation that does not support the burdensome restriction of

       conducting all parenting time more than 700 miles from Father’s residence.

       Thus, despite Mother’s assertion that the evidence and other findings would

       collectively support the requisite statutory determination, the order ultimately

       does not contain a finding that is specific enough to garner statutory support.


[12]   Mother argues, in the alternative, that if the order lacks a requisite finding, then

       this Court should remand to give the trial court the opportunity to make that

       finding—a path this Court has taken in the past. See, e.g., In re Paternity of

       V.A.M.C., 773 N.E.2d 359 (Ind. Ct. App. 2002) (modifying instructions to the

       trial court on rehearing, giving the court the opportunity to (1) enter an order

       with findings that would support the parenting-time restriction or (2) enter an

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018   Page 7 of 8
       order without a restriction). We agree that remand is appropriate. See Ind.

       Appellate Rule 66 (permitting this Court to “order correction of a judgment or

       order” and “grant any other appropriate relief”). We accordingly remand with

       instructions that the trial court either (1) enter an order with findings sufficient

       to support a restriction under Indiana Code Section 31-14-14-1 or (2) enter an

       order without any such restriction. We also instruct the trial court to address all

       references to maternal grandmother, correcting the order where appropriate.


[13]   Remanded.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1306 | October 17, 2018   Page 8 of 8
