MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                         May 06 2019, 9:06 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                            CLERK
                                                                          Indiana Supreme Court
purpose of establishing the defense of res judicata,                         Court of Appeals
                                                                               and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Terry A. White                                            Michael H. Hagedorn
Olsen & White, LLP                                        Tell City, Indiana
Evansville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Paternity of C.L.H.,                              May 6, 2019
                                                         Court of Appeals Cause No.
Blake A. Hensley,                                        18A-JP-3038
Appellant-Respondent,                                    Appeal from the Perry Circuit Court

        v.                                               The Honorable William E. Weikert,
                                                         Special Judge
                                                         Trial Court Cause No. 62C01-1002-
Alyssa N. Troesch,                                       JP-30
Appellee-Petitioner.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019                       Page 1 of 25
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, Blake Hensley (Father), appeals the trial court’s Order

      in favor of the Appellee-Petitioner, Alyssa Troesch (Mother), with respect to

      parenting time, and the trial court’s finding of contempt.


[2]   We affirm.


                                                   ISSUES
[3]   Father raises three issues on appeal, which we restate as follows:


          (1) Whether the trial court abused its discretion by ordering Father to

              complete eighteen months of drug rehabilitation before seeking

              unsupervised parenting time;


          (2) Whether the trial court abused its discretion in not finding Mother in

              contempt for denying Father parenting time; and


          (3) Whether the trial court abused its discretion by finding Father in

              contempt for nonpayment of child support and Mother’s attorney’s fees.


                      FACTS AND PROCEDURAL HISTORY

[4]   Mother and Father are the biological parents of C.H. (Child), born on August 6,

      2009. At the time of the Child’s birth, Mother and Father were not married.

      On May 5, 2010, Father’s paternity and child support were established.

      Through the same order, Mother was to have sole legal and physical custody of

      the Child, subject to Father’s parenting time. Mother later married Jon

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 2 of 25
      Fulkerson (Fulkerson), and the two have a son, G.F., born in 2016. Mother,

      Fulkerson, the Child, and the Child’s younger brother, live in Santa Claus,

      Indiana.


[5]   On July 7, 2014, Father filed a verified petition for modification of custody,

      parenting time, and child support. Mother also filed a petition to modify on

      July 14, 2014. On February 19, 2015, Mother filed a petition to terminate

      Father’s parenting time, arguing that Father had mental health and drug

      addictions issues. On March 17, 2015, Father responded by filing an

      emergency verified petition for modification of custody, parenting time, and

      child support. In that petition, Father disclosed that he was “entering an 8 to

      10-month drug rehabilitation program at the House of Hope, Brazil, Indiana.”

      (Appellant’s App. Vol. II, p. 20).


[6]   On June 23, 2015, Father filed a contempt petition against Mother, alleging that

      Mother had refused to allow him to exercise parenting time. On August 19,

      2015, the trial court conducted a hearing on Father’s contempt petition but

      denied the petition. However, the trial court temporarily ordered that

      beginning August 21, 2015, Father was to exercise supervised parenting time

      every other weekend from Friday at 6:00 p.m. until Sunday at 6:30 p.m.

      Paternal grandmother (Grandmother) or paternal aunt (Aunt) were to supervise

      the visits. Also, the trial court’s order directed Father to submit to random drug

      testing and to continue attending Alcoholics Anonymous, or Narcotics

      Anonymous, and verify his attendance at those meetings. Additionally, Father

      was ordered to notify the trial court within forty-five days that he was enrolled

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 3 of 25
      in counseling. The trial court then set a final hearing for all the parties’ pending

      motions for March 2016.


[7]   After several continuances, on May 12, 2016, the trial court began hearing

      evidence on the parties’ pending motions. A final hearing was conducted on

      June 3, 2016. The trial court then took the matter under advisement. In the

      interim, the trial court ordered Father to submit a hair-follicle drug test through

      the Dubois County Probation Department, and the trial court reserved ruling

      on Father’s request to take the Child on a family vacation until it received the

      results of the hair-follicle drug screen. On June 23, 2016, the trial court denied

      Father’s request to take the Child on vacation. Six days later, on June 29, 2016,

      the trial court issued the following order:


              Since taking this matter under advisement, the [c]ourt has
              received several recent drug tests from March 10, 2016, April 4,
              2016, April 18, 2016, May 24, 2016, and June 3, 2016, all of
              which are positive for THC. Considering this new evidence, the
              [c]ourt will make no ruling on this case without further
              testimony.


      (Appellant’s App. Vol. II, p. 10).


[8]   On August 22, 2016, following a pretrial conference, the trial court requested

      the appointed Guardian ad litem, Susan Elaine Umpleby (GAL Umpleby), to

      “re-open her case and submit an Amended Report” prior to the next hearing on

      October 5, 2016. (Appellant’s App. Vol. II, p. 10). After several continuances,

      on December 1, 2016, the parties and GAL Umpleby appeared in court. The

      trial court then entered an order continuing Father’s parenting time schedule of
      Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 4 of 25
      every other weekend from Friday at 6:00 p.m. to Sunday at 6:30 p.m., with

      Grandmother or Aunt supervising the visits. On March 30, 2017, Father filed

      yet another contempt petition against Mother, arguing that Mother was

      violating the parenting time order.


[9]   On June 27, 2017, Father reverted to using drugs, broke into his sister’s house,

      and was charged with Level 6 felony residential entry. Father spent several

      days in jail following his arrest. On July 14, 2017, the parties appeared in court

      for Father’s petition to modify custody, parenting time, and child support filed

      on July 7, 2014; Mother’s petition to modify filed on July 14, 2014; and

      Father’s contempt petition against Mother for parenting time filed on March

      30, 2017. By agreement, Mother and Father resolved that Father’s visits with

      the Child would be restricted to daytime and would be supervised due to

      Father’s drug addiction. The trial court then took the matter under advisement,

      and it later issued the following order:


              3. [] Father’s parenting time shall be restricted and supervised as
              follows:


                       a. Every other weekend on Saturday from 9:00 a.m. until
                       7:00 p.m. and Sunday from 9:00 a.m. until 7:00 p.m.


                       b. One (1) mid-week visit for three (3) hours from 4:30
                       p.m. until 7:30 p.m.;


                       c. All scheduled special days and holidays for ten (10)
                       hours;



      Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 5 of 25
                 d. All parenting time must be primarily supervised by
                 [Grandmother], or if [Grandmother] is unavailable then by
                 . . . [Aunt], or [other members of Father’s family].


                 ****


                 g. [] Father’s parenting time shall be supervised and
                 restricted until he is able to satisfy the [c]ourt that he has
                 rehabilitated himself from his drug addiction by
                 undergoing regular drug testing for a period of no less than
                 eighteen (18) months at his sole cost and expense. Said
                 testing shall consist of weekly drug urine tests and a hair
                 follicle testing once every seventy (70) days with the first
                 urine test to start on July 21, 2017[,] and each week
                 thereafter and the first hair follicle test to start on
                 September 14, 2017[,] and every seventy (70) days
                 thereafter . . . .


                 h. If each and every hair follicle test and drug urine tests
                 have been negative and not diluted after nine (9) months of
                 the Father’s rehabilitation program, [] Father shall then be
                 allowed to begin supervised parenting time pursuant to the
                 Indiana [Parenting Time] Guidelines . . . including
                 overnight visits.


                 ****


                 j. After the eighteen (18) month rehabilitation period has
                 been successfully completed, [] Father may petition the
                 [c]ourt for unsupervised parenting time with the [] [C]hild
                 pursuant to the Indiana Parenting Time Guidelines.


                 ****



Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019    Page 6 of 25
               6. [] Father shall pay child support in the amount of Sixty-Seven
               Dollars ($67.00) per week beginning on Friday, July 21, 2017[,]
               and shall continue each Friday thereafter for ninety (90) days. []
               Father shall then begin paying child support in the amount of
               One Hundred Dollars ($100.00) per week plus an additional
               Twenty Dollars ($20.00) per week toward the arrearage amount
               of $460.05 as July 14, 2017. The aforesaid child support
               obligation has been calculated in accordance with the Child
               Support Guidelines Worksheet filed herewith . . .


               ****


               9. The Parties are ordered to equally divide the GAL fees due in
               the sum of $4,470.00. As of June 1, 2017[,] that remaining
               balance owed is $575.00. [] Mother is responsible for $340.00
               and the Father is responsible for $235.00 of the remaining
               balance owed.


               10. [] Father is ordered to pay $2,000.00 of the Mother’s attorney
               fees in this matter to her attorney within six (6) months from July
               27, 2017.


       (Appellant’s App. Vol. II, pp. 28-30)


[10]   On September 16, 2017, an Indiana State Police officer initiated a traffic stop

       due to Father’s outstanding warrant from Warrick County. Instead of stopping,

       Father, who was under the influence of methamphetamine and marijuana and

       had a passenger in his vehicle, involved the police in a high-speed chase for

       “thirty-five plus minutes.” (Tr. Vol. II, p. 27). Father rear-ended and then

       rammed the passenger door of the police vehicle to avoid apprehension. Father

       then drove his vehicle off the highway, through a campsite, and into a soybean

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 7 of 25
       field. Father ultimately left his vehicle and ran into the Ohio river. The police

       did not pursue Father into the water, and after Father swam back to the river

       bank, the police tased Father three times to apprehend him.


[11]   On the same day, the State charged Father with two Level 6 felonies for

       resisting law enforcement committed with a deadly weapon, three Level 6

       felonies for criminal recklessness committed with a deadly weapon, one Class A

       misdemeanor for operating while intoxicated endangering a person, three Class

       A misdemeanors for resisting law enforcement, and one Class B misdemeanor

       for reckless driving causing damage to property. Pursuant to a plea agreement,

       Father pleaded guilty to two Level 6 felonies and two Class A misdemeanors.

       A judgment of conviction was entered with respect to those charges, and the

       trial court imposed an aggregate sentence of three years to be served in

       community corrections. While Father was released after nine months, Father

       continued his sentence through home detention and probation.


[12]   On July 11, 2018, following his release from community corrections, Father

       filed a contempt petition against Mother, alleging that Mother was denying him

       parenting time. On September 4, 2018, GAL Umpleby filed an updated report.

       Father also filed a petition to modify his visitation on September 10, 2018,

       arguing that because he was sober from alcohol and drug-free for almost a year,




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 8 of 25
       his previously unsupervised overnight parenting schedule of every other

       weekend from Friday 6:00 p.m. to Sunday 6:30 p.m. should be reinstated. 1


[13]   On September 12, 2018, the trial court conducted a final evidentiary hearing on

       the parties’ pending petitions and motions—i.e., Father’s contempt petition

       against Mother regarding his parenting time filed on July 11, 2018, and his

       motion to modify his parenting time filed September 10, 2018; also, Mother’s

       petition to terminate parenting time filed on September 22, 2017, and Mother’s

       petition for contempt against Father for non-payment of child support and

       attorney fees, which was filed at the start of the evidentiary hearing. A further

       hearing was conducted on September 17, 2018. The trial court thereafter took

       the matter under advisement and ordered the parties to file their proposed

       findings.


[14]   On November 21, 2018, the trial court issued findings of fact and conclusions

       thereon. In the Order, the trial court denied Mother’s request to terminate

       Father’s parenting time. Citing to the July 14, 2017 Order requiring Father to

       undergo eighteen months of rehabilitation and drug screening, the trial court




       1
         Father’s motion referenced a temporary parenting time order that was entered on March 7, 2016 and
       reaffirmed on December 1, 2016. However, that order was moot since it was replaced by the July 14, 2017
       Order which altered the parenting time schedule and abolished Father’s overnight parenting time with the
       Child.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019                   Page 9 of 25
       ordered Father to comply with that order beginning November 28, 2018. As to

       the parties’ contempt petitions, the trial court declined to find Mother in

       contempt for denying Father parenting time; however, it found Father in

       contempt for nonpayment of child support and Mother’s attorney fees.


[15]   Father now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[16]   Where, as here, the trial court enters findings of fact and conclusions thereon

       pursuant to Indiana Trial Rule 52(A), our standard of review is well-settled.

       First, we determine whether the evidence supports the findings and second,

       whether the findings support the judgment. Kwolek v. Swickard, 944 N.E.2d 564,

       570 (Ind. Ct. App. 2011), trans. denied. In deference to the trial court’s

       proximity to the issues, we disturb the judgment only when there is no evidence

       supporting the findings or the findings fail to support the judgment. Id. We do

       not reweigh the evidence but consider only the evidence favorable to the trial

       court’s judgment. Id. Challengers must establish that the trial court’s findings

       are clearly erroneous. Id. Findings are clearly erroneous when a review of the

       record leaves us firmly convinced a mistake has been made. Id. However,

       while we defer substantially to findings of fact, we do not do so to conclusions

       of law. Id. Additionally, a judgment is erroneous under Indiana Trial Rule 52,

       if it relies on an incorrect legal standard. Id. We evaluate questions of law de




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 10 of 25
       novo and owe no deference to a trial court’s determination of such questions.

       Id.


                                               II. Parenting Time

[17]   Decisions involving parenting time rights under the paternity statutes are

       committed to the sound discretion of the trial court. Taylor v. Buehler, 694

       N.E.2d 1156, 1159 (Ind. Ct. App. 1998), trans. denied. Reversal is appropriate

       only upon a showing of an abuse of that discretion. Id. When reviewing the

       trial court’s decision, we neither reweigh the evidence nor reexamine the

       credibility of the witnesses. Walker v. Nelson, 911 N.E.2d 124, 130 (Ind. Ct.

       App. 2009).


[18]   Indiana has long recognized that the right of parents to visit their children is a

       precious privilege that should be enjoyed by noncustodial parents. Lasater v.

       Lasater, 809 N.E.2d 380, 400 (Ind. Ct. App. 2004). Accordingly, a noncustodial

       parent in a paternity action is generally entitled to reasonable parenting time

       rights. See Ind. Code § 31-14-14-1(a). The right of parenting time, however, is

       subordinated to the best interests of the child. Lasater, 809 N.E.2d at 401.

       Indiana Code section 31-14-14-1, which outlines the parenting time rights of a

       noncustodial parent in a paternity action, provides:


               (a) 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


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 11 of 25
               (2) significantly impair the child’s emotional development.


[19]   Indiana Code section 31-14-14-2 provides, “The court may modify an order

       granting or denying parenting time rights whenever modification would serve

       the best interests of the child.” Even though Indiana Code section 31-14-14-1

       uses the term “might,” this court interprets the statute to mean that a court may

       not restrict parenting time unless that parenting time would endanger the child’s

       physical health or well-being or significantly impair the child’s emotional

       development. Walker, 911 N.E.2d at 130. By its plain language, Indiana Code

       section 31-14-14-1 requires a court to make a specific finding of physical

       endangerment or emotional impairment before placing a restriction on the

       noncustodial parent’s parenting time. Id. A party who seeks to restrict

       parenting time rights bears the burden of presenting evidence justifying such a

       restriction. Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003). The

       burden of proof is the preponderance of the evidence standard. In re Paternity of

       P.B., 932 N.E.2d 712, 720 (Ind. Ct. App. 2010).


[20]   At the September 12, and 17, 2018, evidentiary hearing, two motions were

       litigated. The first one was Father’s motion to modify his parenting time;

       however, we note that Father’s motion referenced two orders issued in 2016,

       but those orders were moot after the issuance of the July 14, 2017 Order which

       ultimately replaced the 2016 orders. The second pleading that was

       contemplated was Mother’s petition to terminate Father’s parenting time as

       specified in the July 14, 2017 Order.



       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 12 of 25
[21]   Mother argues that in order for Father to have invoked the trial court’s

       jurisdiction to eliminate the restrictions on his parenting time under the July 14,

       2017 Order, Father was required to file a petition under Indiana Code section

       31-14-14-2. Mother continues, “Under this statute [Father] was required to

       submit evidence that modification of the July 14, 2017 Order would serve [the

       Child’s] best interests. Filing a petition under this statute would also open an

       inquiry as to whether the current parenting time restrictions with [the Child]

       were essential and necessary to protect [the Child’s] physical health and well-

       being; or to prevent significant impairment of his emotional development under

       Ind. Code § 31-14-14-1.” (Appellee’s Br. p. 13).


[22]   While we agree with Mother that the only substantive pleading pending before

       the trial court was Mother’s petition to terminate Father’s parenting time, we

       note that at the evidentiary hearing, the parties contested Father’s supervised

       parenting time as per the July 14, 2017 Order, thus we find that Father’s claim

       is not waived for appellate review. See Dedelow v. Pucalik, 801 N.E.2d 178, 183-

       84 (Ind. Ct. App. 2003).


[23]   In the Order denying Father’s request for unsupervised parenting time and

       maintaining the restrictions established by the July 14, 2017 Order, the trial

       court entered the following specific findings and conclusions:


               12. Following the entry of the July 14, 2017 Order [Father]
               exercised the parenting time provided to him pursuant to
               paragraphs 3.a. and b. of such Order until his arrest and
               subsequent incarceration on September 16, 2017.


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 13 of 25
        13. On September 16, 2017 [Father] was arrested and
        subsequently prosecuted for numerous felonies and
        misdemeanors involving a [high-speed] car chase.


        14. Whitney Berry, [Father’s] passenger, was exposed to
        substantial risk of bodily injury during the chase and [Father]
        reckless and intentional conduct.


        15. [Father] was under the influence of methamphetamines and
        marijuana while engaged in the foregoing conduct.


        16. [Father] entered into a plea agreement in all of the [above-
        mentioned] crimes, which were committed in Perry County.


        17. [Father] was incarcerated in the Perry County Detention
        Center from September 16, 2017 until July 14, 2018.


        ****


        19. The agreement of the parties as entered on July 14, 2017,
        contemplated that [Father] would have eighteen (18) months to
        prove his sobriety while exercising parenting time as agreed.
        [Father] has never complied with the restricted and supervised
        patenting time conditions he agreed to as set forth in paragraph
        3.a. inclusive of [3.]i. of the July 14, 2017 Order. [Father’s]
        voluntary compliance of the restricted and supervised parenting
        time was contemplated when the Order was entered. Being sober
        and drug-free while incarcerated in the Perry County Detention
        Center does not satisfy the restrictions. No visitation took place
        during [Father’s] incarceration. Likewise, the terms and
        conditions imposed, coercively, through the Perry County
        Community Corrections do not satisfy the restricted and
        supervised parenting time conditions contained in the July 14,
        2017 Order.

Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 14 of 25
        ****


        21. [Father] has spent much of his adult life using illegal
        substances, marijuana, opioids, K2 or spice, klonopin, and
        heroin.


        22. During the past 4 years [Father] has consumed illegal
        substances, got high and impaired, got arrested and spent time in
        jail, gone to rehab for months at a time, and then repeated the
        cycle. [Father] has been in and out of [Child’s] life.


        23. [Father] has engaged in a pattern of conduct throughout the
        past 4 years intentionally and recklessly endangering the lives of
        other people and property. The conduct is not isolated, it is not a
        one-time thing. [Child] does not live in a vacuum. He is aware
        of [F]ather’s conduct. His relationship with [Father] is
        interrupted by arrest and incarceration and rehabilitation.
        [Father’s] relationship with [Child] due to his conduct and
        inability to control his cravings for illegal substances, is abnormal
        and aberrant. Based on the facts hereinabove set forth, the
        [c]ourt finds that [Father’s] parenting time with [Child] would
        endanger the child’s physical health and well-being or
        significantly impair [Child’s] emotional development without
        supervision. Provided, however, the [c]ourt is not required to
        grant [Mother’s] Petition to Terminate Parenting Time for there
        is already a supervised and restricted parenting time order in
        place with which [Father] has not complied. As previously
        stated the order is a precondition to unsupervised parenting time.


        24. This [c]ourt expects and anticipates that [Father] will
        complete the eighteen (18) month rehabilitation period set forth
        in paragraph 3.j. of the July 14, 2017 Order before he receives
        unsupervised parenting time. The framework to unsupervised
        parenting time has been established. There is no reason to ignore
        the previous Order. [Father’s] Motion to Modify Custody

Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 15 of 25
               Visitation is denied. The Motion seeks to modify an Order of
               March 7, 2016 reaffirmed in a decision of December 1, 2016.
               Those orders are moot and replaced by the July 14, 2017 Order.
               The [c]ourt may modify an order granting or denying parenting
               time rights whenever the modification would serve the best
               interests of the child. I.C. [§] 31-14-14-2.


               25. The [c]ourt is reestablishing the agreement of the parties as
               reflected in the July 14, 2017 Order. This Order shall be placed
               in effect immediately on the date of this Order. Paragraph [3.g.]
               of the July 14, 2017 Order is amended as follows: Drug testing
               shall consist of weekly drug urine tests and hair follicle testing
               once every seventy (70) days, with the first urine test to start on
               November 28, 2018, and each week thereafter, and the first hair
               follicle test to start on January 28, 2019, and every seventy (70)
               days thereafter. []Father shall submit the result of his testing to []
               [M]other on demand, and shall allow [] [M]other access to all
               testing records.


       (Appellant’s App. Vol. II, pp. 23-24).


[24]   Turning to the heart of Father’s claim, Father contends that, since he had been

       “sober” from alcohol, “and drug-free for a period of one-year at the time of his

       September 2018 hearing,” the trial court should have relieved him all the drug

       screen and rehabilitation obligations contained in the July 14, 2017 Order.

       (Appellant’s Br. p. 11).


[25]   Mother argues that to the extent the trial court would be required to engage in

       the two-prong analysis required by Indiana Code section 31-14-14-1(a) in

       restricting Father’s parenting time, there is ample evidence supporting the trial

       court’s Order upholding the restrictions on Father’s parenting time. At the

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 16 of 25
       evidentiary hearing, GAL Umpleby testified as to Father’s lengthy battle with

       drug addiction since she became involved in the case in 2013 and testified that

       the only time Father was “sober” was during the time he was incarcerated. (Tr.

       Vol. II, p. 98). When questioned whether it was appropriate for Father to have

       unsupervised visits with the Child, GAL Umpleby testified that she was not

       comfortable lifting Father’s supervised visits, and her position was summarized

       with the statement, “I think we need to see how [Father] does on his own . .

       .without the incarceration.” (Tr. Vol. II, p. 98).


[26]   Father’s contention that he had been sober and drug-free for a period of one

       year at the time of the September 2018 evidentiary hearing wholly ignores the

       circumstances and context in which the July 14, 2017 Order was fashioned.

       The July 14, 2017 Order contemplated voluntary drug rehabilitation, not forced

       drug rehabilitation through incarceration. There were no drug screens or

       follicle tests administered during Father’s incarceration, and Father admittedly

       stated that following his release from community corrections, he had not

       undergone any drug screenings. Obviously, Mother did not have access to any

       of his medical reports during that time to ensure that Father was not using

       drugs.


[27]   Here, we find that the evidence supports the trial court’s reestablishment of the

       July 14, 2017 Order, which requires Father to undergo drug rehabilitation

       before gaining unsupervised visits with the Child. Significantly, the trial court

       found that because Father had not addressed his drug addiction issues,

       unsupervised visitation was not in the Child’s best interests, and that

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 17 of 25
       unsupervised visitation would be detrimental to the Child’s emotional and

       physical health. Father has not shown that the evidence does not support the

       findings or that the findings do not support the trial court’s conclusion to

       maintain restrictions to his parenting time. Thus, Father’s contentions that the

       trial court abused its discretion by denying him unsupervised parenting time

       fails.


                                                  III. Contempt

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

       court’s discretion. Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct. App.

       1999), trans. denied. When reviewing a contempt order, we will neither reweigh

       the evidence nor judge the credibility of witnesses, and unless after a review of

       the entire record we have a firm and definite belief a mistake has been made by

       the trial court, the trial court’s judgment will be affirmed. Piercey v. Piercey, 727

       N.E.2d 26, 31-32 (Ind. Ct. App. 2000). “In order to be punished for contempt

       of a court’s order, there must be an order commanding the accused to do or

       refrain from doing something.” Id. at 32 (citing Adler v. Adler, 713 N.E.2d 348,

       354 (Ind. Ct. App. 1999)). To hold a party in contempt for a violation of a

       court order, the trial court must find that the party acted with “willful

       disobedience.” Id.


[29]   Father argues that the trial court abused its discretion by failing to find Mother

       in contempt after Mother willfully and intentionally denied him parenting time,

       as per the July 14, 2017 Order. Also, Father argues that he did not willfully



       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 18 of 25
       violate the trial court’s Order for failing to pay his child support obligation and

       Mother’s attorney’s fees.


                                             A. Parenting Time Refusal

[30]   Father’s contempt petition against Mother was filed July 12, 2018 following his

       release from incarceration in June 2018. The trial court, however, found that

       Mother was not in contempt of court for denying Father parenting time as

       stipulated by the July 14, 2017 Order. In a section entitled “Contempt

       Proceedings” the trial court issued the following order, in part:


                  [Mother] did not willfully disobey this [c]ourt’s July 14, 2017
                  parenting time order considering the evidence and reasonable
                  inferences. [Mother’s] actions were in response to [Father’s] very
                  serious criminal conduct; . . . her fear for [Child’s] safety and best
                  interests; and, the complete absence of any effort on her part to
                  alienate [Child] from Father. Accordingly, the [c]ourt finds that
                  [Mother] is not in contempt . . . .


       (Appellant’s App. Vol. II, p. 25).


[31]   In determining whether Mother was in contempt of the parenting time order,

       the trial court found GAL Umpleby’s report 2 instructive, and it referenced




       2
           GAL Umpleby’s report was not included in the record for our review.


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019    Page 19 of 25
       relative portions as follows: “[Father] was very frustrated upon his release from

       incarceration that he was not able to fall back into the parenting time schedule

       established by the July 2017 order.” (Appellant’s App. Vol. II, p. 25). The

       report continues


               [Mother] believes that this entire situation has been incredibly
               unfair to [Child] and that he deserves consistency and a reliable,
               dependable father. [Mother] wants to be able to protect [Child].
               She does agree there is value in [Child’s] relationship with his
               [Father], but she is struggling with how to keep [Child] safe.
               [Mother] is not spiteful and maintains no hatred against [Father],
               but enough is enough. [Father] has battled addiction [during the
               Child’s] entire life. Last September, [Father] was using
               methamphetamine and heroin. He was forced into sobriety as a
               result of incarceration. [Mother] doesn’t know if it is a genuine
               sobriety, as this has been a years-long battle for [Father].


       (Appellant’s App. Vol. II, p. 25).


[32]   At the evidentiary hearing, Mother admitted that she had denied Father

       parenting time. When asked to explain her reasons, Mother testified that she

       was mostly concerned about the Child’s safety considering Father had

       unresolved drug addiction issues. Mother further explained that it was not

       Father’s use of “narcotics” or “marijuana,” but it was the “methamphetamine”

       use that she found most troubling and she continued, “I feel like [the Child]

       should not be in any kind of environment that would expose him to any kind of

       harm.” (Tr. Vol. II, p. 158).




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 20 of 25
[33]   When asked if Mother had engaged in any sort of pattern to alienate the Child

       from Father, GAL Umpleby stated, the “short answer would be, no.” (Tr. Vol.

       II, p. 135). GAL Umpleby then stated that although she felt like Mother was

       “being a little overprotective” of the Child, after Father relapsed to using drugs

       in June 2017 thereby committing the residential entry offense, and further

       relapsed in September 2017 which culminated in multiple criminal offenses by

       Father, GAL Umpleby testified that she began to understand Mother’s

       reservations. (Tr. Vol. II, p. 135).


[34]   At the time of the contempt hearing, Father had not complied with the drug

       screens, follicle hair testing, or completed eighteen months of drug therapy as

       mandated by the July 14, 2017 Order; rather, Father had been forced into

       sobriety because of his incarceration. Mother’s conduct is short of willful

       disobedience given the fact that Father had not successfully completed the

       mandated drug rehabilitation, and there were no guarantees at that point that

       Father was sober from drugs and alcohol. Accordingly, we find that Mother

       met her burden of showing that her conduct did not amount to willful

       disobedience; therefore, we affirm the trial court’s decision.


                                              B. Father’s Contempt

[35]   Based on a child support worksheet, the July 14, 2017 Order required Father to

       pay $67 weekly child support beginning July 21, 2017 for 90 days, and then pay

       $100 per week plus $20 per week toward the arrearage amount of $460.05 as of

       July 14, 2017. Also, the trial court ordered Father to pay $2,000 of Mother’s

       attorney fees.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 21 of 25
[36]   In the Order finding Father in contempt, the trial court determined that


               34. No child support was paid from July 21, 2017 until October
               31, 2017. From October 31, 2017 inclusive of September 5, 2018,
               $1,990.00 was paid in child support. The child support arrearage
               has increased inclusive of September 5, 2018 to $4,041.05. No
               payments were made on attorney fees during this time . . . .


               35. The evidence and reasonable inferences require a
               determination that [Father] willfully disobeyed the child support
               order and order requiring payment of attorney fees. [Father]
               acknowledged the financial obligations but stated that he did not
               have the money to pay and was incarcerated which prevented
               him from paying. [Father] did not take any action to suspend or
               relieve him of the financial obligations. [Father’s] intentional
               conduct in committing the criminal offenses was of his own
               making and does not constitute a legitimate excuse for
               noncompliance with the support order and order requiring
               payment of attorney fees. Therefore, the [c]ourt finds that
               [Father] is in contempt for not paying child support and the
               attorney fee previously ordered. [Father] shall purge himself of
               the contempt by paying an additional $50.00 per week on the
               arrearage of $4,041.05 beginning on the first Friday following the
               entry of this Order and continuing until the arrearage is paid in
               full; and by paying Federal and State income tax refunds received
               on the arrearage until it is paid in full.


               36. [Father] is also ordered to pay $2,000.00 of [Mother’s]
               attorney fees as previously ordered. Said attorney fees shall be
               paid in full within six (6) months from the filing of this order.


               37. In the event [Father] fails to purge himself of his contempt,
               the [c]ourt reserves jurisdiction over the contempt finding and
               judgment to issue further coercive orders.



       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 22 of 25
[37]   Indiana courts have long held that, “after support obligations have accrued, a

       court may not retroactively reduce or eliminate such obligations.” Whited v.

       Whited, 859 N.E.2d 657, 661 (Ind. 2007). Father’s contention on appeal is that

       the trial court should have suspended him from his child support and Mother’s

       attorney’s fees obligation after he was incarcerated in September 2017.


[38]   In Lambert v. Lambert, 861 N.E.2d 1176, 1179 (Ind. 2007), our supreme court

       specifically rejected the idea that child support should be completely suspended

       while a parent is incarcerated, concluding that


               [a]dopting a system that considers incarceration an absolute
               justification for the reduction or suspension of child support
               appears inconsistent with the policy embedded in Indiana’s
               statutes . . . [W]e cannot imagine that the legislature intended for
               incarcerated parents to be granted a full reprieve from their child
               support obligations while their children are minors.


[39]   The Lambert court also held that an incarcerated parent should not be

       considered “voluntarily” unemployed or underemployed under the Child

       Support Guidelines. Id. at 1180. Although criminal activity reflects a

       “voluntary choice,” it is “not quite the same” as voluntarily refusing to work

       because “[t]he choice to commit a crime is so far removed from the decision to

       avoid child support obligations that it is inappropriate to consider them as

       identical.” Id. “[I]mposing impossibly high support payments on incarcerated

       parents acts like a punitive measure and does an injustice to the best interests of

       the child by ignoring factors that can, and frequently do, severely damage the

       parent-child relationship.”

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 23 of 25
[40]   Although the Lambert court dealt with the initial setting of the incarcerated

       parent’s child support obligation, in Clark v. Clark, 902 N.E.2d 813, 817 (Ind.

       2009), our supreme court relied on the reasoning of Lambert to hold that

       incarceration may serve as a changed circumstance so substantial and

       continuing as to make the terms of an existing support order unreasonable,

       thereby justifying modification of the support order. As in Lambert, the Clark

       court held that “a support obligation should be set based on the obligated

       parent’s actual earnings while incarcerated (and other assets available to the

       incarcerated person).” Id.


[41]   Father’s argument that his child support and attorney’s fees obligation should

       have been suspended due to his incarceration is clearly incompatible with

       Lambert. Moreover, if Father wished to have had his child support and

       Mother’s attorney’s fees obligation as per the July 14, 2017 Order modified due

       to his incarceration, as per Clark, he should have filed a petition to modify his

       child support. For whatever reason, Father did not file such a petition.

       Accordingly, we find that Father’s failure to pay his child support and Mother’s

       attorney’s fees, was a willful violation of a court order. As such, we conclude

       that the trial court did not abuse its discretion by finding Father in contempt.


                                             CONCLUSION
[42]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion by ordering Father to complete eighteen months of drug

       rehabilitation before receiving unsupervised parenting time with the Child.


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 24 of 25
       Also, we conclude that the trial court did not abuse its discretion by concluding

       Mother was not in contempt for denying Father parenting time, or for finding

       Father in contempt for nonpayment of child support and Mother’s attorney’s

       fees.


[43]   Affirmed.


[44]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-3038 | May 6, 2019   Page 25 of 25
