                                                                        FILED
                                                                   Oct 13 2017, 9:14 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Debra Lynch Dubovich                                       Sandra Moreno-Garcia
Levy & Dubovich                                            Hobart, Indiana
Merrillville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Ginger Moell,                                              October 13, 2017
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           45A05-1704-DR-784
        v.                                                 Appeal from the Lake Superior
                                                           Court
Stephen R. Moell,                                          The Honorable John M. Sedia,
Appellee-Petitioner                                        Special Judge
                                                           Trial Court Cause No.
                                                           45D01-1505-DR-3



May, Judge.




Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017                  Page 1 of 15
[1]   Ginger Moell (“Mother”) appeals the trial court’s order regarding custody of

      N.M. and W.M. (collectively, “Children”). She presents several arguments for

      our review, which we restate as:


              1. Whether the trial court had authority to modify the parties’
              settlement agreements;


              2. Whether the trial court abused its discretion when it modified
              the parties’ mediated custody agreement regarding W.M.; and


              3. Whether the trial court abused its discretion when it sua
              sponte granted N.M. authority over decisions regarding his
              exercise of parenting time; health care; and participation in
              school, extracurricular, and religious activities.


      We affirm in part, reverse in part, and remand.



                             Facts and Procedural History
[2]   Mother and Stephen Moell (“Father”) (collectively, “Parents”) divorced on

      October 2, 2012. The dissolution proceedings resulted in three detailed,

      mediated settlement agreements regarding the custody and care of N.M. and

      W.M., born November 18, 1999, and October 17, 2003, respectively. Parents

      used a Parenting Time Coordinator to assist with co-parenting Children.


[3]   In 2013, Father remarried and moved approximately forty-five minutes away

      from Mother’s residence. Children lived in Mother’s residence the majority of

      the time. Children were heavily involved in extracurricular and religious

      activities, and many of those activities interfered with parenting time

      Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017   Page 2 of 15
      arrangements. On March 24, 2015, Father filed a petition to modify parenting

      time. Father filed an amended petition to modify parenting time on June 3,

      2015.


[4]   With the assistance of the Parenting Time Coordinator, the parties entered into

      a Partial Agreed Order regarding Father’s petition to modify parenting time,

      and agreed to use Dr. Marguerite Rebesco to “conduct counseling and therapy

      to help the parties communicate, cooperate and parent their children.” (App.

      Vol. II at 72.) On February 22, 2017, Mother filed a motion for contempt based

      on Father’s cancellation of one of Dr. Rebesco’s appointments.


[5]   On March 10, 2017, the trial court held a hearing on Father’s petition to modify

      parenting time and Mother’s motion for contempt. The trial court interviewed

      Children in camera. On March 30, 2017, the trial court entered an order

      modifying parenting time:


              1. Pursuant to the mediation agreements, entered as orders by
              the Court, [Mother] and [Father] maintain joint legal custody.
              All other provisions of all three mediation agreements pertaining
              to custody and parenting time, including those pertaining to right
              of first refusal, are vacated.


              2. [N.W.] shall exercise parenting time, participation in school,
              extracurricular and religious activities as he shall determine is in
              his own best interests. [N.W.] shall also make all final decisions
              pertaining to his health care.


              3. [Father] and [Mother] shall continue to exercise joint legal
              custody over [W.M.], with [Mother] making all final decisions
              pertaining to education and religious upbringing, including
      Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017     Page 3 of 15
               extracurricular activities associated with each, and [Father]
               making all final decisions over health care.


               4. All issues pertaining to parenting time shall be governed by
               the Indiana Parenting Time Guidelines, including the provisions
               pertaining to Opportunity for Additional Parenting Time, except
               that [Father] shall have parenting time with [W.M.] each week
               from Thursday at 5:00 p.m. through Sunday at 7:00 a.m. For
               purposes of calculating summer and holiday parenting time only,
               [Mother] shall be designated as the custodial parent.


                                                       *****


               7. Kim Harmon is discharged of all duties as Parenting Time
               Coordinator and Dr. Marguerite Rebesco is discharged of all
               duties as counselor with the sincere thanks of the Court for jobs
               well done.


      (Id. at 14-5.)


                                   Discussion and Decision
          Court’s Authority to Modify Terms of Settlement Agreement
[6]   Mother argues the trial court did not have authority to vacate the terms of the

      three mediated settlements ratified as part of their dissolution decree. 1 She




      1
        Mother raised this issue as an abuse of the trial court’s discretion. (See Appellant’s Br. at 33.) However,
      questions about whether the court has authority to rule on an issue are more appropriately framed as
      questions of law that we review de novo, because the resolution is not controlled by the specific facts that may
      have been found by the court. See Howard v. American Family Mut. Ins. Co., 928 N.E.2d 281, 282 (Ind. Ct.
      App. 2010) (whether trial court had authority to perform an action is a question of law the appellate court
      reviews de novo).

      Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017                          Page 4 of 15
      contends the mediated settlement agreements were binding contracts and thus

      the trial court did not have authority to modify them. In support of her

      argument, she cites multiple family law cases that hold settlement agreements

      are binding contracts. However, those cases are distinguishable because they

      deal with property settlements, not settlements involving the care of children.

      See Pohl v. Pohl, 15 N.E.3d 1006 (Ind. 2014) (interpreting spousal maintenance

      agreement); Myers v. Myers, 560 N.E.2d 39 (Ind. 1990) (involving modification

      of maintenance agreement and interpretation of property settlement

      agreement); White v. White, 819 N.E.2d 68 (Ind. Ct. App. 2004) (interpreting

      trial court’s classification of a lien in the parties’ settlement agreement);

      Rothchild v. Devos, 757 N.E.2d 219 (Ind. Ct. App. 2001) (involving the validity

      of a property settlement agreement).


[7]   Mother cites no case law involving the modification of a settlement agreement

      involving child-related matters. To treat a settlement agreement regarding the

      care of children the same as a settlement agreement involving property is

      contrary to the court’s paramount concern of ruling in the best interests of the

      children. See, e.g., Joe v. Lebow, 670 N.E.2d 9, 22 (Ind. Ct. App. 1996) (“in

      deciding whether to modify custody, the paramount concern is the best interests

      of the child”); Wible v. Wible, 245 Ind. 235, 237, 196 N.E.2d 571, 572 (1964)

      (“It is the children’s welfare - not the parents’ - that must control the actions of

      the court.”), reh’g denied; Ind. Code § 31-14-14-2 (“The court may modify an

      order granting or denying parenting time rights whenever modification would

      serve the best interests of the child.”).


      Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017   Page 5 of 15
[8]   Specifically regarding modification of a settlement agreement involving

      children, our Indiana Supreme Court stated in Meehan v. Meehan, 425 N.E.2d

      157 (Ind. 1981), superseded by statute as stated in Reinhart v. Reinhart, 938 N.E.2d

      788, 793 n.2 (Ind. Ct. App. 2010), “the fact that a child support order has been

      entered pursuant to the terms of a settlement agreement, even where, as here, it

      is intended as forever determinative by the parties, is of no consequence to the

      question whether the order should be subsequently modified.” Id. at 160.

      Thus, the trial court had authority to consider Father’s motion for modification

      of parenting time.


                                 Modification of Parenting Time
[9]   Our standard of review in cases involving requests to modify parenting time 2 is

      well-settled:


               Upon review of a trial court’s determination of a visitation issue,
               we will grant latitude and deference to our trial courts, reversing
               only when the trial court manifestly abuses its discretion. Kirk v.



      2
        Mother argues the trial court abused its discretion when it sua sponte modified custody when Father
      requested the trial court modify parenting time. We addressed the differences between a modification of
      custody and a modification of parenting time in Julie C. v. Andrew C., 924 N.E.2d 1249 (Ind. Ct. App. 2010),
      and Miller v. Carpenter, 965 N.E.2d 104 (Ind. Ct. App. 2012). In Julie C., we held a modification of father’s
      overnights to seven overnights during a fourteen-day period was a “de facto modification of custody to joint
      physical custody.” 924 N.E.2d at 1256. In that case, the modification made it so each parent had the child
      essentially fifty percent of the time. However, in Miller, our court held and increase from 35% to 45% of
      overnights was not a modification of custody and instead a modification of parenting time. 965 N.E.2d at
      111.
      In this case, the trial court granted Father three overnights to Mother’s four overnights, excluding holidays.
      Mother is considered the custodial parent, as she was in the past, for calculation of summer and holiday
      parenting time. Therefore, Father and Mother do not share custody of Children equally, and Mother’s
      argument fails based on the holdings of Julie C. and Miller. The trial court did not sua sponte modify custody
      of Children. Instead, it modified parenting time, as Father requested.

      Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017                         Page 6 of 15
               Kirk, 770 N.E.2d 304, 307 (Ind. 2002); Lasater v. Lasater, 809
               N.E.2d 380, 400 (Ind. Ct. App. 2004). No abuse of discretion
               occurs if there is a rational basis in the record supporting the trial
               court’s determination. Lasater, 809 N.E.2d at 400. Therefore, 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.
               Kirk, 770 N.E.2d at 307. We will neither reweigh evidence nor
               judge the credibility of witnesses. Lasater, 809 N.E.2d at 400. In
               all visitation issues, courts are required to give foremost
               consideration to the best interests of the child. Id.


       Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied.


                                   Father’s Parenting Time with W.M.

[10]   Regarding W.M., the trial court observed:


               [W.M.], a young teenager, still needs the guidance of his parents,
               and is used to which parent makes which ultimate decisions
               pertaining to his upbringing, but needs to have more certainty
               and less travel time in his life: [Father] and [Mother] live at least
               a 45-minute drive from each other, resulting in [W.M.] spending
               large chunks of time being transported rather than participating
               in the multitude of activities he enjoys, being able to get his
               homework done, or just plain hanging out with mom or dad in a
               venue other than an automobile. The distance between [Father]
               and [Mother] also makes their agreement regarding what they
               called the Right of First Refusal impractical: a 45-minute drive
               each way puts a great deal of stress not only on [W.M.], but also
               his parents. It is simply too great a distance to travel for the
               exercise of three hours of parenting time.


       (App. Vol. II at 14.) Based thereon, the trial court ordered:



       Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017   Page 7 of 15
                3. [Father] and [Mother] shall continue to exercise joint legal
                custody over [W.M.], with [Mother] making all final decisions
                pertaining to education and religious upbringing, including
                extracurricular activities associated with each, and [Father]
                making all final decisions over health care. 3


                4. All issues pertaining to parenting time shall be governed by
                the Indiana Parenting Time Guidelines, including the provisions
                pertaining to Opportunity for Additional Parenting Time, except
                that [Father] shall have parenting time with [W.M.] each week
                from Thursday at 5:00 p.m. through Sunday at 7:00 a.m. For
                purposes of calculating summer and holiday parenting only,
                [Mother] shall be designated as the custodial parent.


       (Id. at 15) (footnote added).


[11]   Mother argues modification of Father’s parenting time with W.M. is not in

       W.M.’s best interests because the trial court noted Children were “happy,

       healthy, and well-adjusted.” (Id. at 12.) However, the trial court also noted the

       current arrangements “have brought contention, confusion and stress upon all

       of them” and it was in Children’s “best interests to modify the current custodial

       and parenting time arrangements to bring some modicum of stability,

       consistency and certainty to their lives.” (Id.) Both parties presented evidence




       3
         Mother takes issue with the trial court’s use of the language “joint legal custody” to describe the
       arrangement agreed to by the parties regarding the legal decisions each make on W.M.’s behalf. However, in
       Gonzalez v. Gonzalez, we held a very similar arrangement was “joint legal custody.” 893 N.E.2d 333, 336
       (Ind. Ct. App. 2008). In Gonzalez, we affirmed a custody arrangement whereby Father would make all
       decisions regarding education and religious training and Mother would make health care decisions. While
       we recognized the distribution of decision-making power was not “a typical joint legal custody arrangement,”
       id., we nevertheless referred to the court’s order as one granting “joint legal custody.” Id. at 336-7. Thus, the
       trial court here was not incorrect when it termed parents’ identical arrangement as joint legal custody.

       Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017                          Page 8 of 15
       of difficulty with the current parenting time schedule including issues with

       homework completion, transportation, church attendance, and bonding with

       stepmother. As it is evident the current agreement has caused problems as

       Children have gotten older, the record demonstrates modification of Father’s

       parenting time is in W.M.’s best interest. Mother’s argument is an invitation

       for us to reweigh the evidence, which we may not do. See Duncan, 843 N.E.2d

       at 969 (appellate court cannot reweigh evidence or judge credibility of

       witnesses).


                               Findings and Conclusions Regarding N.M.

[12]   The trial court ordered, “[N.M.] shall exercise parenting time, participation in

       school, extracurricular and religious activities as he shall determine is in his

       own best interests. [N.M.] shall also make all final decisions pertaining to his

       health care.” (App. Vol. II at 14.) Regarding N.M., the trial court observed,


               [Father’s] and [Mother’s] custodial arrangement is particularly
               outdated when it comes to [N.M.], who, by all accounts is a
               mature, level-headed young man: he will be an adult in six
               months’ time. How much time he spends with each parent, in
               which religious or educational activities he should participate
               and what is in his best interest as far as health care should be
               decisions that [N.M.], and not his parents, should make.


       (Id. at 13.)


[13]   Mother argues the trial court’s order amounts to “quasi-emancipation” and

       there “was no evidence that N.M. was emotionally or financially equipped to



       Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017   Page 9 of 15
       make the type of decisions the trial court imposed upon him.” (Br. of Appellant

       at 23.) Further, she notes:


               This portion of the order is even more troubling because neither
               party requested N.M.’s quasi-emancipation. There was no
               petition on file or testimony from either parent requesting that
               outcome. If either parent had been provided with reasonable
               notice that the result was even a possibility, the parents may have
               presented relevant evidence to the trial court as to why this
               would or would not be in the child’s best interests.


       (Id.) Father contends, in essence, the trial court’s decision was an exercise of

       judicial economy considering N.M.’s age and the trial court was “saving time

       and resources of everyone involved by preventing further litigation after N.M.

       reaches the age of eighteen.” (Br. of Appellee at 9.) This is a matter of first

       impression, and neither party has provided much legal precedent for his or her

       respective arguments.


[14]   Indiana Code section 31-16-6-6, which governs the emancipation of a child for

       child support purposes, is in place to “require that parents provide protection

       and support for the welfare of their children until the children reach the

       specified age or no longer require such care and support.” Butrum v. Roman,

       803 N.E.2d 1139, 1146 (Ind. Ct. App. 2004), reh’g denied, trans. denied, abrogated

       on other grounds by Hirsch v. Oliver, 970 N.E.2d 651, 658 (Ind. 2012).

       Emancipation occurs by operation of statute when a child becomes nineteen

       years old. Ind. Code § 31-16-6-6(a). Emancipation can also occur when a child

       is at least eighteen years old, “has not attended a secondary school or


       Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017   Page 10 of 15
       postsecondary educational institution for the prior four (4) months and is not

       enrolled in a secondary school or postsecondary educational institution” and “is

       or is capable of supporting himself or herself through employment.” Ind. Code

       § 31-16-6-6(a)(3). Additionally, a child can be considered legally emancipated

       before turning nineteen years old if the child “(1) is on active duty in the United

       States armed services; (2) has married; or (3) is not under the care or control of:

       (A) either parent; or (B) an individual or agency approved by the court.” Ind.

       Code § 31-16-6-6(b).


[15]   Here, the trial court has essentially removed N.M. from the care and control of

       his parents. Pursuant to the court’s order, he is not required to comply with

       parenting time requirements, can make his own healthcare decisions, and can

       make decisions about his education, extracurricular activities, and religious

       training. His parents, however, are still required to support him financially, as

       the trial court did not modify the child support agreement. There is also no

       evidence to suggest N.M. lives outside of Mother or Father’s house or has

       employment. While the trial court’s order did not amount to emancipation as

       contemplated in Indiana Code section 31-16-6-6, we are still troubled by the

       implications of allowing a minor, regardless of age and maturity, carte blanche in

       making decisions regarding his life while his parents are still legally bound to

       support him financially.


[16]   Parents have a “constitutionally recognized fundamental right to control the

       upbringing, education, and religious training of their children. . . . [and] have

       the right to raise their children as they see fit.” Swartz v. Swartz, 720 N.E.2d

       Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017   Page 11 of 15
       1219, 1221 (Ind. Ct. App. 1999). Specifically regarding the exercise of

       parenting time, the Indiana Parenting Guidelines Section I(E)(3) states: “If a

       child is reluctant to participate in parenting time, each parent shall be

       responsible to ensure the child complies with the scheduled parenting time. In

       no event shall a child be allowed to make the decision on whether scheduled

       parenting time takes place.” Further, Comment 1 under Indiana Parenting

       Time Guideline Section II(E), provides, in relevant part:


               The rearing of a teenager requires parents to make decisions
               about what their teen should be allowed to do, when, and with
               whom. . . . If parents are not able to agree, the teenager, who
               very much wants freedom from adult authority, should never be
               used as the “tie breaker.” . . . As a general rule, a teenager
               should be involved in making important decisions if the parents
               agree the opportunity to make the decision is valuable, and the
               value of that opportunity outweighs any possible harm of a poor
               decision. If the parents feel the welfare of the child is dependent
               on the decision made, and if they allow the child to make a
               decision simply because they cannot agree, the parents are in
               danger of failing the child.


[17]   The trial court noted the good intentions of the parties regarding parenting time

       have not worn the test of time:


               When [Father] and [Mother] dissolved their marriage, they made
               a good faith effort in the spirit of cooperative parenting to reach
               accord regarding all the incidents of their marriage, including
               their two young sons [N.M.] and [W.M.]. Unfortunately, after
               three mediated agreements, the appointment of a parenting time
               coordinator, and extensive counseling, the custodial and
               parenting time arrangements that were achieved through
               mediation have brought contention, confusion and stress on all of

       Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017   Page 12 of 15
        them. The boys have grown to be happy, healthy, and well-
        adjusted. They are both excellent students and enjoy
        participation in many school, religious and sports extracurricular
        activities which have grown exponentially as they attained their
        teenage years. Serious conflicts have arisen between [Father] and
        [Mother] as they navigate through their boys’ numerous activities
        as they try to implement the parenting time arrangements they
        mediated. Notwithstanding their good faith, and their
        willingness to obtain assistance through counseling, mediation
        and parenting time coordination, it is in the boys’ best interests to
        modify the current custodial and parenting time arrangements to
        bring some modicum of stability, consistency and certainty to
        their lives.


(App. Vol. II at 12.) During the hearing, Father indicated he did “not feel that

[his] parenting time [was] ever given as a priority,” (Tr. at 75), because Mother

would routinely schedule activities on dates when Children were scheduled to

be with Father. Mother expressed frustration at Father’s alleged inattention to

Children’s homework responsibilities when Children were in his care. The

Parenting Time Coordinator indicated:


        I feel with [N.M.], it has been a little bit - there’s been some
        conflict there with [N.M.] pulling away at some points, feeling,
        again - you know, [N.M.] expressed to me that he basically
        wanted the fighting to stop, did not want his parents to continue
        going to Court, and basically wanted the emails to stop, you
        know, this incessant communication and feeling that everything
        needed to be perfect in the family. So I mean he was basically
        looking for some flexibility. You know, he loves his - he loves
        both his parents, so.


        [W.M.], I feel maybe a little bit emotionally may be more aligned
        with [Mother] in that he - I think he’s nervous and afraid to upset

Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017   Page 13 of 15
               anybody at this point. He [sic?] younger. So he’s trying to
               navigate through both parents so that he can stay out of the
               middle of the conflict. So I feel like he’s a little bit more flexible.
               He’s younger at this point.


       (Id. at 16.)


[18]   Based on the level of turmoil between the parties, it is understandable the trial

       court would want to attempt something novel to resolve an issue that may well

       be moot in a short amount of time based on N.M.’s age. However, it is not in

       the record how N.M. would qualify for emancipation at eighteen years old,

       which is the age at which the court claims he “will be an adult in six months’

       time.” (App. Vol. II at 13.) Further, the trial court’s order regarding N.M.

       contradicts the provisions and commentary provided by the Indiana Parenting

       Time Guidelines. Based thereon, we reverse the trial court’s decision regarding

       the modification of parenting time of N.M. and remand for further

       proceedings. 4



                                                 Conclusion



       4
         Mother also argues the trial court abused its discretion when it modified its earlier order requiring the
       parties and Children to attend counseling sessions with Dr. Rebesco by discharging Dr. Rebesco from service
       in its final order. The order stemmed from an agreement between the parties to engage in the counseling
       services to “help the parties communicate, cooperate and parent their children.” (App. Vol. II at 72.)
       The trial court did not indicate why it released Dr. Rebesco in this case. As we reverse the trial court’s
       decision regarding N.M., it may be possible Dr. Rebesco’s services are still required. We remand the issue to
       the trial court for further consideration and detailed findings.



       Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017                      Page 14 of 15
[19]   We conclude the trial court did not err as a matter of law when it vacated the

       parties’ original settlement agreements regarding Children’s care. Nor did the

       court abuse its discretion when it modified Father’s parenting time with W.M.

       However, the trial court did not have authority to allow N.M. to make his own

       decisions regarding parenting time and related issues. Therefore, we affirm in

       part, reverse in part, and remand for proceedings consistent with this opinion.


[20]   Affirmed in part, reversed in part, remanded.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 45A05-1704-DR-784 | October 13, 2017   Page 15 of 15
