MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Jul 24 2015, 8:50 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANTS
Donna Jameson
Greenwood, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Diane Lane,                                               July 24, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          32A04-1501-DR-41
Darrell Lane,                                             Appeal from the Hendricks Superior
                                                          Probate Division;
Appellant-Intervenor,                                     The Honorable G. Thomas Gray,
                                                          Special Judge;
        v.                                                32D03-1301-DR-28


Danny English,
Appellee-Respondent.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A04-1501-DR-41 | July 24, 2015      Page 1 of 6
[1]   Diane Lane (“Mother”) and Darrell Lane (“Grandfather”) appeal the court’s

      removal from its docket the hearing set for January 9, 2015, on their motion to

      modify parenting time. 1


[2]   We reverse and remand.


                                   Facts and Procedural History
[3]   Mother filed for divorce from Danny English (“Father”) in July, 2002. The

      union produced one child, B.L. (“Child”). After a contested custody hearing,

      the court granted Mother and Father joint legal custody. Through the years,

      multiple motions for modification of custody and visitation have been before

      the court.


[4]   Father made allegations of sexual abuse against Mother and her brother. After

      investigation, Child Protective Services (“CPS”) “found Father’s allegations to

      be unsubstantiated[.]” (App. at 38.) Grandfather reported bruising on Child in

      2007, and CPS substantiated the allegations that Father had caused the bruising

      on Child’s leg. Father has sought counseling and received a certificate of

      completion for a parenting class.


[5]   Mother is mostly wheelchair-bound and is unable to care for Child without the

      aid of her parents. Father has several ailments including “arthritis, atrial



      1
        We note numerous typographical errors in the Appellants’ Brief, including misidentification of dates and
      people. (See, e.g., Appellants’ Br. at 4) (“Father using disparaging language when speak with Father,” which
      appears from the context to be a reference to Father’s disparaging language toward Grandfather). Such
      errors hinder our review, and we admonish counsel to proofread her briefs more diligently.

      Court of Appeals of Indiana | Memorandum Decision 32A04-1501-DR-41 | July 24, 2015                Page 2 of 6
      fibrillation, depression, obesity, hypoglycemia, and an eye problem.” (Id. at

      33.) As a result, both Mother and Father receive social security disability, and

      Grandparents have been heavily involved in the rearing of Child. Although

      communication between the parties has been contentious, the court found in

      2008, “Grandfather shall communicate with Father and shall provide Father

      with information as to [Child’s] school schedules, extracurricular activities,

      healthcare appointments, and other major events in [Child’s] life.” (Id. at 47.)

      The court ordered the parties to refrain from “speak[ing] negatively of the

      others in front of [Child].” (Id. at 48.)


[6]   On July 23, 2008, the court granted Mother and Grandfather joint legal custody

      of Child. Mother and Grandfather were also awarded “primary physical

      custody of [Child], subject to Father’s parenting time[.]” (Id. at 47.)

      Nevertheless, problems have continued. On July 26, 2013, based on a May 31,

      2013, hearing, the court ordered the parties to follow the March 1, 2013,

      Indiana Parenting Time Guidelines (“IPTG”).


[7]   On May 30, 2014, Mother and Grandfather filed a Motion for Contempt

      against Father due to problems with parenting time exchanges. A hearing was

      set for June 27, 2014. Father answered and also filed a petition requesting

      information regarding Child’s college savings account and attorney fees.

      Mother and Grandfather requested and were granted a continuance. The

      hearing was reset for July 25, 2014. Father filed a petition to be allowed to take

      Child to his church during his parenting time, requested an order regarding

      division of health care expenses for Child, and requested parenting time

      Court of Appeals of Indiana | Memorandum Decision 32A04-1501-DR-41 | July 24, 2015   Page 3 of 6
      exchanges go back to the way they had been. Father also requested and was

      granted a continuance. The hearing was reset for September 25, 2014. Prior to

      that date, the parties agreed to continue all pending matters until further notice.


[8]   On October 29, 2014, Mother and Grandfather filed a petition to modify the

      parenting time orders. Discovery ensued. A hearing was scheduled for

      December 18, 2014. Mother and Grandfather requested a continuance, which

      was granted. The court reset the hearing for January 9, 2015. On December

      24, 2014, Father filed a motion for continuance of the January hearing. On

      December 30, 2014, the court granted it, removed the hearing from the docket,

      and issued the following order:

              [Father] has filed for a continuance of the matter for very good cause.
              A review of the file finds that the incident complained of in the
              contempt petition is now ancient history, not because of anyone’s
              attempt to put it off, but just the history of the case.
              The Court sees no good reason to keep this issue on the docket. No
              new issues have been filed since the one incident that created the
              contempt petition. The Court feels this issue complained of was
              probable [sic] serious at the time, but has lost its contemptible nature
              over time.
              Everyone can agree that, at best, the parties will be on the watch for
              any reason to come back to Court. This is the wrong approach to this
              case. Mistakes are made in any divorce and this one is no different.
              Dragging all the parties back to Court will do no one any good,
              especially the child. The Court has found that in other cases such as
              this the child begins to sense that they [sic] are the problem and the
              reason for continually going back to Court. This must stop.
              The Court asks all parties to recall its lecture the first time this Court
              was present in the Courtroom. [Father] is the child’s father and that
              fact cannot be changed. His impulsive actions do need to be



      Court of Appeals of Indiana | Memorandum Decision 32A04-1501-DR-41 | July 24, 2015   Page 4 of 6
               controlled and monitored. But, contempt does no one any good and
               only harms the child.
               Therefore, the Court will not reset the present contempt petition for
               further hearing. If in the future, really contemptuous actions arise, the
               Court will direct its attention to those issues.
       (Id. at 106.)


                                      Discussion and Decision
[9]    We note Father did not submit an appellee’s brief. When an appellee does not

       file a brief, we do not need to develop an argument for him, and we apply a less

       stringent standard of review. In re Guardianship of R.M.M., 901 N.E.2d 586, 588

       (Ind. Ct. App. 2009). We may reverse the trial court if the appellant is able to

       establish prima facie error, which is error at first sight, on first appearance, or on

       the face of it. Id. The appellee’s failure to submit a brief, however, does not

       relieve us of our obligation to correctly apply the law to the facts in the record

       in order to determine whether reversal is required. Khaja v. Khan, 902 N.E.2d

       857, 868 (Ind. Ct. App. 2009), reh’g denied. Where an appellant is unable to

       meet that burden, we will affirm. Blair v. Emmert, 495 N.E.2d 769, 771 (Ind. Ct.

       App. 1986).


[10]   Mother and Grandfather assert the trial court abused its discretion by vacating

       the hearing set for January 9, 2015, without resetting it. Trial judges are and

       should be granted substantial deference in the scheduling of matters before

       them. But on the record before us, it appears the court vacated the hearing set

       for January 9, 2015, on the mistaken belief that the hearing was to address only

       the contempt petition filed in May, 2014. (See App. at 106) (“Court will not

       Court of Appeals of Indiana | Memorandum Decision 32A04-1501-DR-41 | July 24, 2015   Page 5 of 6
       reset the present contempt petition for further hearing.”). However, the

       scheduled hearing was to take evidence on Mother and Grandfather’s petition

       to modify parenting time, which was filed in October, 2014. Discovery was in

       process when the parties requested continuances. It is unclear whether the trial

       court intended to vacate without resetting the hearing on the motion to modify

       parenting time, but that appears to be the effect of the order.


[11]   We reverse and remand for the trial court to either set a hearing on the motion

       to modify parenting time or to clarify its previous order.


[12]   Reversed and remanded.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1501-DR-41 | July 24, 2015   Page 6 of 6
