      MEMORANDUM DECISION                                                      FILED
                                                                         Feb 13 2018, 10:02 am
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                    CLERK
                                                                           Indiana Supreme Court
      regarded as precedent or cited before any                               Court of Appeals
                                                                                and Tax Court
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Tula Kavadias                                            Adam J. Sedia
      Kavadias & Associates, PC                                Hoeppner, Wagner & Evans, LLP
      Crown Point, Indiana                                     Merrillville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In Re: The Marriage of:                                  February 13, 2018

      Maher N. Daklalla,                                       Court of Appeals Case No.
                                                               45A03-1708-DR-1947
      Appellant-Petitioner,
                                                               Appeal from the Lake Superior
              v.                                               Court
                                                               The Honorable Elizabeth F.
      Rana E. Dahdal,                                          Tavitas, Judge
      f/k/a Rana E. Daklalla,                                  Trial Court Cause No.
                                                               45D03-1305-DR-431
      Appellee-Respondent.



      Najam, Judge.


                                       Statement of the Case
[1]   Maher Daklalla (“Father”) appeals the trial court’s order modifying Rana

      Dahdal’s (“Mother”) parenting time with the parties’ child, L.D. (“Child”), and

      Court of Appeals of Indiana | Memorandum Decision 45A03-1708-DR-1947 | February 13, 2018     Page 1 of 12
      finding Father in contempt of court. Father presents the following dispositive

      issues for our review:


              1.       Whether the trial court improperly shifted the burden of
                       proof to Father on Mother’s petition to modify parenting
                       time.

              2.       Whether the trial court abused its discretion when it found
                       Father in contempt of court.

              3.       Whether the trial court erred when it granted Mother’s
                       motion for a permanent injunction enjoining Father from
                       interfering with Mother’s parenting time with Child.


[2]   We affirm in part and reverse in part.


                                 Facts and Procedural History
[3]   Father and Mother hail from Syria, where they were married in 2008. They

      later lived together in the United States, where, in 2010, Mother gave birth to

      Child. During the Spring of 2013, Father alleged that Mother had threatened to

      kill Child and had stabbed Father. Accordingly, on May 22, Father filed a

      petition for dissolution of marriage, and he obtained an order of protection

      against Mother, who moved out of the family home. Pursuant to the order of

      protection, Mother’s visitations with Child were to be supervised. Judith

      Haney, a supervised visitation monitor, oversaw Mother’s visitations with

      Child at The Children’s Tree House in Crown Point.


[4]   On April 13, 2015, the trial court entered the dissolution decree, which

      provided in relevant part that Father had custody of Child, Mother was to pay

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      child support to Father, and Mother’s supervised visitations with Child would

      continue to take place at The Children’s Tree House. The decree provided

      further that, pursuant to the parties’ agreement, “Rebecca Wit[zke], MSW,

      shall serve in the capacity of reunification therapist. Father shall participate in

      the sessions as determined by the therapist.” Appellant’s App. Vol. II at 21.


[5]   However, before she began attending the supervised visits between Mother and

      Child, Witzke informed the parties’ attorneys that she would not be acting as a

      reunification therapist. Instead, she would “sit in [on] the visitation just to see

      if there was anything that was restricting it from being successful and that [she]

      could intervene with a parent if necessary.” Tr. at 80. Witzke attended thirteen

      visitations between Mother and Child, which continued to be supervised by

      Haney. Then, in March 2016, Father’s attorney notified Witzke that Father

      was rescinding his consent for her participation in the supervised visitations

      between Mother and Child. Also in March 2016, Mother became a United

      States citizen. And in April, without notifying either Father or the trial court of

      her travel plans, Mother went to Italy for one month to visit with family.


[6]   On June 22, 2016, Father filed with the trial court a motion to change the

      location of Mother’s supervised visits and to terminate reunification therapy. In

      that motion, Father averred that The Children’s Tree House had ceased

      operations and that reunification therapy with Witzke should be terminated for

      “lack of progress.” Appellant’s App. Vol. II at 36. In response, Mother filed a

      petition to modify parenting time, a rule to show cause why Father should not

      be found in contempt of court, and a petition for an injunction “enjoining

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      Father from interfering with Mother’s parenting time” with Child. Id. at 42.

      Mother sought “unsupervised and unfettered parenting time” with Child. Id. at

      40.


[7]   On May 10 and May 30, 2017, the trial court held a consolidated hearing on all

      pending motions. The trial court took the matters under advisement and, on

      July 25, the court granted Mother’s motion for modification of parenting time

      and found Father in contempt of court. The trial court found and concluded in

      relevant part as follows:


              11. Father testified that Mother cannot satisfy his concerns
              that Mother will flee to Syria with the child. Father claims that
              Mother, in the past, has threatened to take the child to Syria.
              Additionally, Father fears that Mother will flee with the child to
              Syria with the help of Mother’s family who work for the Syrian
              government.

              12. Since the Dissolution Decree, Mother has gained better
              understanding of the English language; she has a job, a driver’s
              license, and, most significantly, has become a U.S. citizen.

              13. Mother has diligently visited with her daughter despite the
              many obstacles.

              14. Mother has diligently phoned her daughter nearly daily,
              which the Court finds Father has thwarted.

              15. Father has also thwarted visitation by objecting to Ms.
              Wit[z]ke’s involvement.

              16. Mother and Father are unable to communicate with each
              other.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1708-DR-1947 | February 13, 2018   Page 4 of 12
        17. No evidence was presented that Mother poses any threat
        of physical or emotional harm to the child.

                                                ***

        ANALYSIS AND CONCLUSIONS OF LAW

        1.    The Court finds that no evidence was presented that
        Mother is a genuine flight risk; and no evidence was presented
        that Mother poses a threat to the physical or emotional well-
        being of the child.

        2.     The Court finds that Father willfully terminated the
        reunification therapy and interfered with Mother’s parenting time
        with the Child.

        3.     The Court finds a Guardian ad Litem should be appointed
        to represent the best interests of the child.

        IT IS THEREFORE ORDERED, ADJUDGED AND
        DECREED THAT:

        1.     The Court grants in part and denies in part Father’s
        Motion to Change Location for Mother’s Supervised Visits and
        for Termination of Reunification Therapy.

                                                ***

        4.   The Court grants Mother’s Petition to Modify Parenting
        Time Order.

        5.     [The Guardian ad Litem] shall monitor four (4) visitations
        between Mother and the child one hour per week. After four
        sessions, if the Guardian ad Litem has no objections, Mother
        shall begin unsupervised parenting time with the child to be
        phased in as follows:


Court of Appeals of Indiana | Memorandum Decision 45A03-1708-DR-1947 | February 13, 2018   Page 5 of 12
              Week 5:          2 hours. . . .
              Week 6:          4 hours. . . .
              Week 7:          8 hours. . . .
              Week 8:          [16 hours]
              Week 9:          Saturday 6:00 p.m. until Sunday 6:00 p.m.
              Week 10:         Friday 6:00 p.m. until Sunday 6:00 p.m.

              Thereafter, the Indiana Parenting Time Guidelines shall be
              followed.

              6.    The Court grants the Petition for Rule to Show Cause.
              Father is in willful contempt of Court for failure to abide by the
              Order for reunification therapy.

              7.    As sanctions, the Court orders Father to pay Mother’s
              attorney fees for litigation of the contempt proceedings. Attorney
              O’Donnell shall file, within fourteen (14) days, an Attorney Fee
              Affidavit.

              8.    Father may purge himself of contempt by abiding by all
              Court Orders regarding parenting time.

              9.     The Court grants Mother a permanent injunction
              enjoining Father from interfering with Mother’s parenting time
              with the parties’ minor child.


      Id. at 21-24. This appeal ensued.


                                     Discussion and Decision
                                       Issue One: Burden of Proof

[8]   Indiana Code Section 31-17-4-2 provides that 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

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       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. Id. Parenting time decisions are reviewed for an abuse of

       discretion. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). Judgments

       in custody matters typically turn on the facts and will be set aside only when

       they are clearly erroneous. Id.


[9]    Father contends that “[i]t is clear from the wording of the order that the trial

       court improperly shifted to the Father the burden of proof on the Mother’s

       petition.” Appellant’s Br. at 18-19. To support this contention, Father directs

       us to the trial court’s failure to make a finding on Child’s best interests and the

       court’s finding that “[n]o evidence was presented that Mother poses any threat

       of physical or emotional harm to the child.” Appellant’s App. Vol. II at 22. In

       essence, Father asserts that the court’s finding implies that there was no

       evidence presented by Father that Mother poses any threat of physical or

       emotional harm to Child, which, in turn, suggests that the court thought that

       Father was required to present such evidence. We cannot agree with Father’s

       contention on this issue.


[10]   First, the trial court entered findings and conclusions sua sponte, and it was not

       required to make a specific finding on Child’s best interests. See I.C. § 31-17-4-

       2. Second, Mother presented evidence that she did not present any threat of

       physical or emotional harm to Child. The trial court found Mother’s testimony

       to be credible. In addition, Witzke testified that Mother’s visitations with Child

       need not be supervised. Indeed, Father concedes that the evidence supports the

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       trial court’s findings on the modification of parenting time, and he “does not

       contend that the findings do not support the judgment.” Reply Br. at 16.


[11]   We hold that Father’s contention that the trial court improperly shifted the

       burden of proof to Father on Mother’s petition to modify is pure speculation. It

       is well settled that we presume that the trial court, as the factfinder, correctly

       applied and followed the law. Bordenkecher v. State, 562 N.E.2d 49, 51 (Ind. Ct.

       App. 1990), trans. denied. Father has not carried his burden on appeal to show

       that the trial court erred on this issue.


                                            Issue Two: Contempt

[12]   Father next contends that the trial court abused its discretion when it found him

       in contempt of court. In order to be held in contempt for failing to comply with

       a court order, a party must have willfully disobeyed the order. Deel v. Deel, 909

       N.E.2d 1028, 1032 (Ind. Ct. App. 2009). The order must have been so clear

       and certain that there could be no question as to what the party must do, or not

       do, and so there could be no question regarding whether the order is violated.

       Id. A party may not be held in contempt for failing to comply with an

       ambiguous or indefinite order. Id. Otherwise, a party could be held in

       contempt for obeying an ambiguous order in good faith. Id. The determination

       of whether a party is in contempt of court is a matter left to the trial court’s

       discretion. Id. We will reverse a trial court’s finding of contempt only where

       there is no evidence or inferences from the record to support it. Id. As with

       other sufficiency matters, we will neither reweigh the evidence nor judge


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       witness credibility. Id. All orders contained within a dissolution of marriage

       decree may be enforced by contempt. Ind. Code § 31-15-7-10 (2018).


[13]   Here, the dissolution decree provided in relevant part that Witzke “shall serve

       in the capacity of reunification therapist” and that “Father shall participate in

       the sessions as determined by the therapist.” Appellant’s App. Vol. II at 21. In

       support of its conclusion that Father “is in willful contempt of Court for failure

       to abide by the Order for reunification therapy,” the trial court found that

       Father had “thwarted visitation by objecting to Ms. Wit[z]ke’s involvement.”

       Id. at 22-23. But the undisputed evidence shows that, at the outset, Witzke

       informed counsel for both Father and Mother that she would not be conducting

       reunification therapy. And at the factfinding hearing, Witzke testified that she

       did not serve as a reunification therapist. Because there was no reunification

       therapy occurring, Father cannot be found to have violated the court order

       mandating reunification therapy when he terminated Witzke’s participation in

       Mother’s supervised visitation with Child.


[14]   Further, Haney conducted all 190 sessions of Mother’s supervised visitation

       with Child, which included thirteen sessions attended by Witzke. Father did

       not interfere with Haney’s participation in those visitations. Indeed, Haney

       testified that Mother’s supervised visitations with Child could have continued

       after Father told Witzke to stop participating. But Mother left for Italy for one

       month and, shortly thereafter, The Children’s Tree House ceased operations.

       In June, Father moved the trial court to designate a new location for Mother’s



       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-DR-1947 | February 13, 2018   Page 9 of 12
       supervised visitations. The evidence does not support the trial court’s finding

       that Father thwarted Mother’s visitations with Child.


[15]   Still, Mother contends that the trial court was justified in finding Father in

       contempt of court based on his conduct in thwarting Mother’s attempts to

       communicate with Child by telephone. But the trial court explicitly based its

       contempt finding on Father’s “failure to abide by the Order for reunification

       therapy.” Id. at 23. Thus, Father’s interference with Mother’s telephonic

       communication with Child cannot support the trial court’s contempt finding.

       We reverse the trial court’s contempt finding and, accordingly, reverse the

       court’s award of attorney’s fees as sanctions therefor.


                                           Issue Three: Injunction

[16]   Finally, Father contends that the trial court erred when it entered an injunction

       enjoining him from interfering with Mother’s parenting time with Child.

       Father points out that, while Mother petitioned for the injunction, neither party

       presented evidence or argument on the issue at the factfinding hearing. The

       grant or denial of a request for an injunction rests within the sound discretion of

       the trial court, and our review is limited to whether there was a clear abuse of

       that discretion. Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164, 171-72 (Ind.

       Ct. App. 2008).


[17]   Mother moved the trial court for an injunction under Indiana Code Section 31-

       17-4-4, which provides as follows:


               A noncustodial parent who:

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                (1) has been granted parenting time rights with a child who lives
                with the custodial parent;

                (2) regularly pays support ordered by a court for the child; and

                (3) is barred by a custodial parent from exercising parenting time
                rights ordered for the noncustodial parent and the child;

                may file, in the court that has jurisdiction over the dissolution of
                marriage, an application for an injunction against the custodial
                parent under Rule 65 of the Indiana Rules of Trial Procedure.


       (Emphasis added.) As Father correctly points out, Mother did not present

       evidence to show that she regularly pays her child support obligation under the

       dissolution decree. Accordingly, the trial court abused its discretion when it

       entered the injunction against Father.1


                                                       Conclusion

[18]   The trial court did not shift the burden of proof to Father on Mother’s petition

       to modify parenting time. The trial court abused its discretion when it found

       Father in contempt of the dissolution decree. And the trial court abused its

       discretion when it entered an injunction against Father.


[19]   Affirmed in part and reversed in part.




       1
        Mother’s contention that Father waived his argument on this issue for failure to raise it to the trial court is
       without merit.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-DR-1947 | February 13, 2018           Page 11 of 12
Mathias, J., and Barnes, J., concur.




Court of Appeals of Indiana | Memorandum Decision 45A03-1708-DR-1947 | February 13, 2018   Page 12 of 12
