MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                       Jul 27 2020, 9:03 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
Maggie L. Sadler
Clark Quinn Moses Scott & Grahn, LLP
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Nikoll,                                      July 27, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-DR-2931
        v.                                               Appeal from the Marion Superior
                                                         Court
Miranda Nikoll,                                          The Honorable Marc T.
Appellee-Petitioner.                                     Rothenberg, Judge
                                                         The Honorable Kimberly D.
                                                         Mattingly, Magistrate
                                                         Trial Court Cause No.
                                                         49D07-0907-DR-31180



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020                           Page 1 of 7
                                               Case Summary
[1]   Christopher Nikoll (“Father”) appeals from the denial of his motion to correct

      error, which challenged the denial of his petition for modification of a custody,

      parenting time, and child support order entered contemporaneous with his

      divorce from Miranda Nikoll (“Mother”). Father presents the sole issue of

      whether the trial court abused its discretion by refusing to modify the parenting

      time schedule.1 We affirm.



                               Facts and Procedural History
[2]   When the parties were divorced on February 19, 2013, the dissolution court

      adopted the parties’ agreement to share legal custody of their then four-year-old

      son (“Child”) and divide parenting time such that Father had four overnights

      and Mother had three overnights each week. Father was designated the

      custodial parent, and neither parent was ordered to pay child support.


[3]   On January 28, 2019, Father filed his “Verified Petition to Modify Custody,

      Parenting Time, Child Support and Other Child Related Matters.” (App. Vol.

      II, pg. 14.) Father stated that Child was enrolled in Father’s residential school

      district of Avon, and he proposed that Child stay with him during the school

      week, and that Mother have parenting time on alternate weekends and during




      1
       Mother did not file an appellee’s brief. Pursuant to Indiana Rule of Appellate Procedure 45(D), “the
      appellee’s failure to file timely the appellee’s brief may result in reversal of the trial court or Administrative
      Agency on the appellant’s showing of prima facie error.”

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020                            Page 2 of 7
      alternate weeks of the summer school break. Father also requested that Mother

      be ordered to pay $33.00 weekly in child support. The trial court conducted a

      hearing on July 17, 2019, at which each parent testified briefly. Father also

      submitted into evidence marked calendars depicting his overnights with Child

      in 2018 and the first half of 2019, his paycheck stubs, and a child support

      worksheet.


[4]   On September 12, 2019, the trial court denied Father’s petition for

      modification. He filed a motion to correct error, which was summarily denied

      on November 13, 2019. Father now appeals.



                                 Discussion and Decision
[5]   Generally, a trial court’s ruling on a motion to correct error is reviewed for an

      abuse of discretion. Poiry v. City of New Haven, 113 N.E.3d 1236, 1239 (Ind. Ct.

      App. 2018). A trial court abuses its discretion when its decision is clearly

      against the logic and effect of the facts and circumstances before the court or if

      the court has misinterpreted the law. Id.


[6]   Here, the underlying controversy involves parenting time. Although Father

      discusses a standard of review applicable to a modification of child custody, the

      Chronological Case Summary shows that Father was designated the physical

      custodian of Child and the parents were to share legal custody. Father’s

      petition included within the caption a reference to custody, but the substantive




      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020   Page 3 of 7
      portion contains only a prayer for “modification of parenting time” and any

      derivative change in child support. (App. Vol. II, pg. 15.)


[7]   Indiana Code Section 31-17-4-2 provides in relevant part: “The trial court may

      modify an order granting or denying parenting time whenever modification

      would serve the best interests of the child.” We will review the parenting time

      decision for an abuse of discretion, mindful that, in family law matters, the trial

      court is afforded “latitude and deference,” as explained by our Indiana Supreme

      Court:


               Appellate courts “are in a poor position to look at a cold
               transcript of the record, and conclude that the trial judge, who
               saw the witnesses, observed their demeanor, and scrutinized their
               testimony as it came from the witness stand, did not properly
               understand the significance of the evidence.” Kirk v. Kirk, 770
               N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind.
               201, 204, 210 N.E.2d 850, 852 (1965)). “On appeal it is not
               enough that the evidence might support some other conclusion,
               but it must positively require the conclusion contended for by
               appellant before there is a basis for reversal.” Id. “Appellate
               judges are not to reweigh the evidence nor reassess witness
               credibility, and the evidence should be viewed most favorably to
               the judgment.”


      Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).


[8]   The existing parenting time order, pursuant to an agreement incorporated into

      the dissolution decree, provides that Father is to have the physical care of Child

      from Sunday at 6 p.m. until Thursday at 6 p.m. and Mother is to have Child in

      her care from Thursday at 6 p.m. until Sunday at 6 p.m. At the hearing, Father

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020   Page 4 of 7
       testified that the parenting time agreement had become “pretty much hearsay”

       and the arrangement was “now Saturday at 3 to Wednesday at 3.” (Tr. at 19.)


[9]    Father asserted multiple bases for modification. He testified briefly regarding

       Mother’s perceived parental shortcomings, specifically, that she had permitted

       her husband to spank Child when Child was a toddler, she did not provide

       separate bedrooms for Child and Child’s younger half-sibling, she had not

       informed Father of a lapse in Child’s health insurance, she attended less than all

       of Child’s YMCA sports events, she had missed a pediatric appointment, and

       she had overlooked a failure by Child (an honor roll student) to turn in one

       particular assignment.


[10]   But Father’s primary assertion was that Mother had forgone her exercise of

       parenting time over the preceding eighteen months such that he had become a

       de facto full-time custodian. He sought an order formally reducing Mother’s

       parenting time and a corresponding order for child support consistent with

       Mother having 96 to 100 overnights annually.


[11]   Father introduced into evidence two calendars with notations of his overnights

       with Child in 2018 and the first six months of 2019. According to the

       notations, Father had consistently kept Child in his care approximately 21

       nights per month (in contrast to 16 overnights ordered). He testified that both

       parents had requested modifications in the past, but he was “asking for more

       stability” and to avoid Child having to “bounce back and forth” during the

       school week. (Id. at 23.)


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020   Page 5 of 7
[12]   Mother testified and was asked about Father’s time notations. She did not

       agree that it was an “entirely accurate” record but acknowledged that Father

       had kept Child additional overnights. (Id. at 34.) According to Mother, she

       had accepted Father’s offer to care for Child while Mother recovered from

       health problems and surgeries. Mother testified that she had previously been

       Child’s primary caretaker, and present for Child when he cried to see Father

       and Father did not show up. However, both parents agreed that Father, a

       veteran, had worked hard to overcome his post-traumatic stress disorder and

       alcohol abuse that had affected his relationship with Child in the past. As of the

       hearing date, Mother’s expressed wish was that the parental time “be equal” but

       ultimately, she “just want[ed] [Child] to be happy” with either herself or Father.

       (Id.) She agreed that stability was an appropriate consideration.


[13]   Our review of the record discloses some allegations of temporary parental

       failings, but ultimately the evidence suggests that Child benefits from significant

       time in both homes. He is by all accounts well adjusted, and a straight A

       student who participates in extracurricular activities. He has a younger sibling

       in Mother’s home and reportedly enjoys spending time with the children of

       Father’s girlfriend. There is no indication that he is placed at risk in either

       parental home. Child attends school in Father’s school district of Avon.

       Mother lives nearby in Plainfield, and there was no suggestion of transportation

       difficulty or excessive school absences. By agreement of the parties, Father had

       more time with Child than was court-ordered. Mother testified that this was

       prompted, at least in part, by her medical needs. The trial court, having had the


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020   Page 6 of 7
       benefit of hearing testimony from both parents, and perhaps mindful of the

       adage “if it isn’t broken, don’t fix it,” concluded that it was not in Child’s best

       interests to modify the existing order. We find no abuse of discretion.



                                               Conclusion
[14]   The trial court did not abuse its discretion in denying Father’s motion to correct

       error.


[15]   Affirmed.


       Baker, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2931 | July 27, 2020   Page 7 of 7
