MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Apr 12 2018, 6:33 am

court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Nicholas J. Hursh
Fort Wayne, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Samuel S. Longanbach,                                     April 12, 2018
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          76A03-1709-JP-2176
        v.                                                Appeal from the Steuben Circuit
                                                          Court
Odessa J. Pawloski,                                       The Honorable Allen N. Wheat,
Appellee-Respondent                                       Judge
                                                          The Honorable Randy Coffey,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          76C01-1210-JP-398



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 76A03-1709-JP-2176 | April 12, 2018                Page 1 of 6
[1]   Samuel Longanbach (Father) appeals from the trial court’s denial of his petition

      for modification of parenting time with respect to Odessa Pawloski (Mother)

      and his son, E.W.L. (Child).


[2]   We reverse and remand.


                                        Facts & Procedural History


[3]   Child was born on August 24, 2012, and Father’s paternity was established

      shortly thereafter. The parties entered into an agreement regarding custody,

      support, and parenting time (Agreed Order), which the trial court approved on

      December 31, 2012. Pursuant to the Agreed Order, the parties shared joint

      legal custody of Child and Mother had primary physical custody. With regard

      to parenting time, the Agreed Order provided in relevant part:


              6.       The parties agree that Father will be entitled to parent with
                       [Child] as mutually agreed, and consistent with the current
                       schedule: Wednesdays from appx. 5:15 p.m. to 9 p.m. and
                       on Sundays from Noon to 6 p.m.


              7.       If at some point, this schedule needs to be modified, and
                       the parties are unable to mutually agree upon a new
                       schedule, the parties agree that Father is entitled to, at
                       minimum, parenting time based on the Indiana Parenting
                       Time Guidelines, consistent with the minor child’s age.


      Appendix at 12.


[4]   The parties gradually expanded Father’s parenting time as Child aged, with

      overnights beginning sometime after Child was one year old. By July 2015,

      Court of Appeals of Indiana | Memorandum Decision 76A03-1709-JP-2176 | April 12, 2018   Page 2 of 6
      Father regularly exercised overnight parenting time based on an alternating

      schedule – Wednesday through Friday in one week and Tuesday through

      Wednesday and Friday through Sunday the next week. Thus, Father had five

      overnights with Child over each two-week period.


[5]   In September 2016, Mother and Father discussed modifying the schedule due to

      Child starting preschool. They had multiple conversations but could not agree

      on a schedule. As a result, Mother unilaterally implemented a new schedule

      until they could agree on one together. This schedule reduced Father’s regular

      parenting time and provided him with a weekly midweek overnight and

      alternating weekends. Thus, Father received slightly more parenting time than

      the minimum provided by the Indiana Parenting Time Guidelines (the

      Guidelines), with the Guidelines being the default under the Agreed Order.


[6]   On September 16, 2016, Father filed a petition for modification of parenting

      time. He sought modification of the Agreed Order from 2012 and requested

      that the parties “share equally physical custody and parenting time”. Appendix

      at 24. After mediation failed, the matter proceeded to a final evidentiary

      hearing on April 12, June 7, and July 5, 2017.


[7]   Mother acknowledged that Father was a very good father but testified that she

      did not believe sharing equal physical custody was in Child’s best interests at

      such a young age. She testified that she did not feel Child was emotionally

      mature enough to be away from her, his older sister, and his dogs that much.

      Mother detailed prior issues with Child being anxious about and protesting


      Court of Appeals of Indiana | Memorandum Decision 76A03-1709-JP-2176 | April 12, 2018   Page 3 of 6
      going from Mother’s care to Father’s, and she noted that exchanges have

      improved since the most-recent change in parenting time. Mother testified that

      Child needed a “stable, consistent weekly schedule”. Transcript of April 12, 2017

      Hearing at 12.


[8]   While Mother did not agree with Father’s request for equal parenting time, she

      testified that Father should receive more time than he was currently receiving.

      Accordingly, she proposed a parenting time schedule that she believed would be

      in Child’s best interests. This proposed schedule was in excess of the

      Guidelines and would provide Father with weekly midweek overnights on

      Wednesdays (Wednesday at 5:15 p.m. through 6:00 p.m. on Thursday) and

      alternating weekends (after school Friday through Monday morning).


[9]   At the conclusion of the hearing, Mother’s counsel asked the trial court to

      “modify parenting time consistent with mother’s request, which does allow

      [Father] additional overnights above and beyond the Indiana Parenting Time

      Guidelines.” Transcript of July 5, 2017 Hearing at 111. Counsel continued:


              Mother agrees that he’s a good father. Mother acknowledges
              that time with father is appropriate. She’s simply stressing to the
              Court that the child is too young to do week on, week off. He’s
              not mature enough emotionally. He has a lot of changes in his
              life that would make it difficult for him to adjust.


      Id. Despite Mother’s agreement that it was in Child’s best interests to modify

      parenting time and grant Father time in excess of the Guidelines, the trial court




      Court of Appeals of Indiana | Memorandum Decision 76A03-1709-JP-2176 | April 12, 2018   Page 4 of 6
       issued an order on July 11, 2017, denying modification. After an unsuccessful

       motion to correct error, Father now appeals.


                                            Discussion & Decision


[10]   Mother has not filed an appellee’s brief. As a result, we will not undertake the

       burden of developing arguments on her behalf and will reverse if Father

       establishes prima facie error. See Duty v. CIT Group/Consumer Fin., Inc., 86

       N.E.3d 214, 215 (Ind. Ct. App. 2017). Prima facie, in this context, means at

       first sight, on first appearance, or on the face of it. Id.


[11]   The evidence establishes that Child has two loving and involved parents, as

       well as supportive extended family. The parties have a history of co-parenting

       well together, and the instant disagreement is hopefully just a minor blip on the

       radar of an otherwise model co-parenting situation. At the hearing, both

       Mother and Father agreed that Child’s best interests would be served by a

       modification of the existing parenting time order and that such modification

       should provide Father with time beyond the minimum set out in the

       Guidelines.1 Nothing in the record establishes otherwise.


[12]   It appears that the trial court agreed with Mother that the modification sought

       by Father – equal parenting time – was not in Child’s best interests. Father

       does not dispute that this was within the trial court’s discretion. We agree with




       1
        Ind. Code § 31-14-14-2 provides that a court may modify a parenting time order “whenever modification
       would serve the best interests of the child.”

       Court of Appeals of Indiana | Memorandum Decision 76A03-1709-JP-2176 | April 12, 2018         Page 5 of 6
       Father, however, that the trial court erred in its outright refusal to modify

       parenting time.2 On remand, we direct the trial court to issue a modified

       parenting time order consistent with the schedule proposed by Mother at the

       hearing.


[13]   Judgment reversed and remanded.


       Najam, J. and Robb, J., concur.




       2
         Although we reverse based on the evidence, we note that the alternative argument presented by Father
       based on I.C. § 31-14-14-1(a) is without merit and represents a fundamental misunderstanding of the law in
       this regard.

       Court of Appeals of Indiana | Memorandum Decision 76A03-1709-JP-2176 | April 12, 2018            Page 6 of 6
