MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                          Apr 07 2016, 9:09 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Andrea L. Ciobanu                                        David A. Brooks
Alex Beeman                                              Brooks Law Office, P.C.
Ciobanu Law, P.C.                                        Valparaiso, Indiana
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Heather Renee Czahor,                                    April 7, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         66A04-1508-DR-1174
        v.                                               Appeal from the Pulaski Circuit
                                                         Court
Eric Anthony Czahor,                                     The Honorable Robert B. Mrzlack,
Appellee-Petitioner.                                     Special Judge
                                                         Trial Court Cause No.
                                                         66C01-1110-DR-58



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016              Page 1 of 9
                                          Case Summary
[1]   Eric Anthony Czahor (“Father”) and Heather Renee Czahor (“Mother”) agreed

      to share custody of their three children and alternate parenting time on a weekly

      basis. But when Mother’s boyfriend strangled her, Father sought to modify

      custody and parenting time. The parties, however, reached an agreement that

      Mother’s boyfriend could not have any contact with the children, and the trial

      court entered an order to that effect. Soon thereafter, Mother sought to remove

      the restriction so that her boyfriend could be in the presence of her children.

[2]   To the extent Mother seeks to collaterally attack the imposition of the

      restriction that her boyfriend cannot have any contact with her children, she

      agreed to that specific restriction and cannot do so. And to the extent Mother

      seeks to modify the child-custody order to remove this agreed-upon restriction,

      the trial court did not commit clear error in determining that it was in the best

      interests of the children that Mother’s boyfriend not have any contact with them

      while he was on probation for attacking Mother. We therefore affirm the trial

      court.



                            Facts and Procedural History
[3]   In 2011 Father filed a petition to dissolve his marriage to Mother. Father and

      Mother ultimately reached an agreement to share custody of their three minor




      Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016   Page 2 of 9
      children and to alternate parenting time on a weekly basis.1 Appellant’s App. p.

      3, 21. The trial court approved the parties’ agreement and dissolved their

      marriage in February 2013.


[4]   Mother began dating Dale Nester shortly after she and Father separated, and

      she later moved in with Nester. During Mother’s weeks, the children stayed

      with Mother and Nester. In October 2014, Nester, who was drunk, and Mother

      got into an argument at Nester’s auto shop. Nester choked Mother until she

      passed out. Mother thought she was going to die. Jeremy Rehn was present

      during the incident and had to pull Nester off of Mother. Nester then left the

      shop. Mother talked to Nester on the phone, and he said that he was going to

      kill them all. Nester went to Rehn’s house, where he fired two shots into

      Rehn’s garage.

[5]   The State charged Nester with Level 5 felony intimidation (Rehn), Level 6

      felony strangulation (Mother), and Class A misdemeanor domestic battery

      (Mother). Nester later pled guilty to Level 6 felony intimidation and Class A

      misdemeanor domestic battery, and the trial court sentenced him to an

      aggregate term of two-and-a-half years, with six months executed through home

      detention and two years suspended.

[6]   Shortly after the incident, Father filed a motion for emergency change of

      custody and modification of parenting time because he believed that Mother



      1
          Neither the parties’ agreement nor the dissolution decree are included in the record on appeal.


      Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016                  Page 3 of 9
      was “not taking appropriate actions in regards to the physical altercation and

      shooting” and that “the children would be in danger in her care.” Appellant’s

      App. p. 13-14. In January 2015, Mother and Father—each represented by

      counsel—agreed in writing to modify the existing child-custody order.

      Specifically, Father agreed to withdraw his motion for change of custody and

      modification of parenting time, and Mother and Father “agree[d] that Dale

      Nester shall have no contact with the minor children . . . .” Id. at 16 (Agreed

      Modification). The trial court entered an order to that effect in February 2015.

      Id. at 18 (Agreed Order).


[7]   In June 2015—less than five months after Mother and Father agreed to the

      modification and when Nester started the probation portion of his sentence—

      Mother filed a motion to modify the agreed order to allow the parties’ children

      “to be in the presence of Dale Nester . . . .” Id. at 20. At the hearing, Mother

      argued that the children were not present during the incident and were not

      harmed and that Nester had completed anger-management classes. Following

      the hearing, the trial court denied Mother’s motion, finding that it was “in the

      best interests of the minor children of the parties that Dale Nester have no

      contact with the minor children while he is serving his sentence for Intimidation

      and Domestic Battery, and pending further order of the Court.” Id. at 23. The

      court said that it could revisit the issue when Nester’s probation ended. Tr. p.

      73-74.

[8]   Mother now appeals.



      Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016   Page 4 of 9
                                    Discussion and Decision
[9]    Mother appeals the trial court’s denial of her motion to modify the agreed

       order, which provided that Nester could not have any contact with her children.

       The trial court entered findings of fact and conclusions in its order denying

       Mother’s motion. Pursuant to Indiana Trial Rule 52(A), a reviewing court shall

       not set aside the findings or judgment unless clearly erroneous, and due regard

       shall be given to the opportunity of the trial court to judge the credibility of the

       witnesses. Steele-Giri v. Steele, No. 45S04-1512-DR-00682 (Ind. Mar. 15, 2016).

       Where, as here, a trial court enters findings sua sponte, the appellate court

       reviews issues covered by the findings with a two-tiered standard of review that

       asks whether the evidence supports the findings, and whether the findings

       support the judgment. Id.


[10]   Specifically, Mother argues that the trial court “did not make the requisite

       findings to support a parenting time restriction in this case.” Appellant’s Br. p.

       14; see Ind. Code § 31-17-4-2 (“[T]he court shall not restrict a parent’s 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.” (emphasis

       added)).2 This appears to be a collateral attack on the part of the agreed order

       that provides “Dale Nester shall have no contact with the . . . minor children.”




       2
        Although Mother agreed that Nester could not have any contact with her children, she does not explain
       how this restricted her parenting “time.” As Mother testified at the hearing, she still had her children every
       other week, but she did not stay with Nester that week. Instead, she stayed with Nester the week she did not
       have her children. Tr. p. 31.

       Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016               Page 5 of 9
       Appellant’s App. p. 18. Mother, however, agreed to this restriction. See id. at

       16 (written agreement between parties that “Dale Nester shall have no contact

       with the minor children”). And she did not appeal it. Instead, less than five

       months later, Mother sought to remove the restriction because she did not

       “believe that the children would be harmed or placed in jeopardy of any harm if

       they were in the presence of Dale Nester as the children have never been

       harmed by him.” Id. at 20.


[11]   In other words, Mother changed her mind about Nester being in the presence of

       her children and sought to modify the child-custody order. Such modifications

       are governed by Indiana Code section 31-17-2-1:

               The court may not modify a child custody order unless:


                        (1) the modification is in the best interests of the child; and


                        (2) there is a substantial change in one (1) or more of the
                        factors that the court may consider under section 8 and, if
                        applicable, section 8.5 of this chapter.


[12]   Ind. Code § 31-17-2-21(a). The party seeking to modify custody bears the

       burden of demonstrating that the existing custody should be altered. Steele-Giri,

       No. 45S04-1512-DR-682.

[13]   Here, the trial court determined that it was in the best interests of the children

       that “Nester have no contact with the minor children while he is serving his

       sentence for Intimidation and Domestic Battery, and pending further order of


       Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016   Page 6 of 9
       the Court.” Appellant’s App. p. 23. The court reasoned that Nester victimized

       Mother and her children, who, before the incident, were living with Mother and

       Nester every other week. Id. at 22-23. The record supports this. That is, an

       intoxicated Nester strangled Mother, who passed out. Mother thought she was

       going to die. Rehn had to pull Nester off of Mother. Nester then threatened to

       kill all of them and fired shots into Rehn’s garage. Therefore, even assuming

       that Mother could have established a substantial change in circumstances, see

       I.C. § 31-17-2-21(a), Mother has failed to persuade us that the trial court’s best-

       interests determination is clearly erroneous.

[14]   Affirmed.


       Crone, J., concurs.

       Bailey, J., concurs in result with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016   Page 7 of 9
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Heather Renee Czahor,                                    April 7, 2016
       Appellant-Respondent,                                    Court of Appeals Case No.
                                                                66A04-1508-DR-1174
               v.                                               Appeal from the Pulaski Circuit
                                                                Court
       Eric Anthony Czahor,                                     The Honorable Robert B. Mrzlack,
       Appellee-Petitioner.                                     Special Judge
                                                                Trial Court Cause No.
                                                                66C01-1110-DR-58



       Bailey, Judge, concurring in result


[15]   Restriction of parenting time is governed by Indiana Code Section 31-17-4-2,

       which provides:

               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
               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.


[16]   Mother complains that no specific finding of endangerment has been made,

       although her time with the children is subject to a restriction excluding her

       batterer. I do not see Mother’s challenge as a collateral attack upon the custody

       order. Mother simply ignores the procedural posture of this case and wishes to

       proceed as if the trial court’s order on appeal was an original restrictive

       Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016   Page 8 of 9
       parenting time order. However, the parenting time restriction was already in

       place at the parent’s behest, and Mother fails to acknowledge her burden of

       proof in seeking modification.


[17]   In all parenting time controversies, courts are required to give foremost

       consideration to the best interests of the child or children involved. J.M. v.

       N.M., 844 N.E.2d 590, 599 (Ind. Ct. App. 2006), trans. denied. Mother, whose

       partner was still serving a criminal sentence for an attack upon her, failed to

       persuade the trial court that a parenting time modification would be in the best

       interests of the children. Specifically, the trial court concluded:

               It is in the best interests of the minor children of the parties that
               Dale Nester have no contact with the minor children while he is
               serving his sentence for Intimidation and Domestic Battery, and
               pending further order of the Court.


       (App. at 23.)

[18]   We reverse a trial court’s determination of a parenting time issue only when the

       trial court has manifestly abused its discretion; no abuse of discretion occurs if

       there is a rational basis in the record supporting the trial court’s determination.

       J.M., 844 N.E.2d at 599. The evidentiary record amply supports the trial

       court’s decision. Thus, I concur in the result reached by the majority.




       Court of Appeals of Indiana | Memorandum Decision 66A04-1508-DR-1174 | April 7, 2016   Page 9 of 9
