                                                                                 FILED
                                                                            Jul 26 2017, 10:00 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John R. Maley                                               Darryn L. Duchon
Leah L. Seigel                                              Indianapolis, Indiana
Barnes & Thornburg, LLP                                     Monty K. Woolsey
Indianapolis, Indiana                                       Andrew R. Bloch
                                                            Cross, Pennamped, Woolsey &
                                                            Glazier, P.C.
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In Re the Paternity of:                                     July 26, 2017
G.G.B.W. a Minor Child,                                     Court of Appeals Case No.
                                                            49A04-1611-JP-2474
J.B.,
                                                            Appeal from the Marion Circuit
Appellant-Petitioner,                                       Court
        v.                                                  The Honorable Sheryl Lynch,
                                                            Judge
S.W.,                                                       Trial Court Cause No.
                                                            49C01-1101-JP-3803
Appellee-Respondent.




Bailey, Judge.




Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017                             Page 1 of 16
                                            Case Summary
[1]   J.B. (“Father”) and S.W. (“Mother”) are the parents of one daughter,

      G.G.B.W. (“Child”). In 2015, Father petitioned to modify legal custody of

      Child, and subsequently filed a contempt petition and motion for rule to show

      cause in which Father alleged that Mother was in violation of a paternity

      decree. The trial court denied Father’s petitions and motion, and ordered

      Father to pay a portion of Mother’s attorney fees. Father now appeals.


[2]   We affirm in part, reverse in part, and remand.



                                                      Issues
[3]   Father presents the following restated issues:

              I.       Whether the trial court articulated an erroneous
                       interpretation of the Decree and thereby abused its
                       discretion in failing to find Mother in contempt;


              II.      Whether the trial court abused its discretion in denying
                       Father’s petition to modify legal custody; and


              III.     Whether the trial court abused its discretion in ordering
                       Father to pay a portion of Mother’s attorney fees.


                             Facts and Procedural History
[4]   Father and Mother had a brief relationship while married to other spouses, and

      Child was born in 2007. Mother remained married and Father subsequently


      Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017     Page 2 of 16
      remarried. In 2011, Father and Mother entered an Agreed Decree of Paternity

      concerning Child (the “Decree”) that the trial court approved and incorporated

      into an order. The Decree contains the following provision relating to legal

      custody: “The parties shall share joint legal custody of [Child] . . . which shall

      be defined as follows: Mother must seek Father’s input prior to Mother making

      any major medical, religious, or educational decisions for [Child].” Appellant’s

      App. Vol. II at 47-48. The Decree also includes the following provision relating

      to vaccinations: “If the child attends a school that requires vaccinations for

      enrollment, and the child will be denied enrollment unless she receives the

      vaccinations, then the child will be given the required vaccinations for

      enrollment.” Appellant’s App. Vol. II at 51.


[5]   Child was not vaccinated following her birth. At the time of the Decree, Child

      attended a Montessori school that did not require vaccinations. The following

      year, upon Father’s request, Child was to attend kindergarten at a public

      school. The school required that its students be vaccinated but, pursuant to

      Indiana Code section 20-34-3-2, the school allowed an unvaccinated student to

      attend if a parent executed a form claiming a religious objection to

      immunization. Mother sought Father’s consent to sign the form, but Father did

      not consent. Mother then signed the form, and Child began attending the

      school unvaccinated. In subsequent years, Mother submitted the form without

      consulting Father, and Child has continued to attend the public school.


[6]   In early 2015, when Father learned that Child would be traveling on an

      extended European Disney Cruise, Father expressed concern to Mother about

      Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017   Page 3 of 16
      Child remaining unvaccinated. On May 18, 2015, Father petitioned to modify

      legal custody of Child as to medical decisions only, alleging a substantial

      change in circumstances in that Child had not received any vaccinations since

      birth. The next month, Father learned that his wife was pregnant, and on July

      29, 2015, Father filed a contempt petition alleging that Mother was violating

      the Decree because she did not “vaccinat[e] [Child] pursuant to” the Decree

      and because she “falsely advised the school of a religious affiliation to avoid

      vaccinating the child.” Appellant’s App. Vol. II at 57.


[7]   During the pendency of Father’s motion and contempt petition, Father and his

      wife became the parents of twins, a boy and a girl. The daughter was born

      healthy and could receive vaccinations on schedule, but the son could not be

      vaccinated due to a serious heart condition. Father was advised by a doctor

      that it was unsafe for the newborns to be around anyone unvaccinated,

      including Child. Acting on that advice, Father stopped exercising overnight

      parenting time and would not permit Child to physically meet the infants.


[8]   On March 3, 2016, Father filed a motion for rule to show cause. In the motion,

      Father asserted generally the same grounds for contempt contained in his

      petition and alleged that Child’s health was at risk due to being unvaccinated.

      Father also alleged that he was unable to exercise overnight parenting time with

      Child because Child was unvaccinated and posed a risk to his infants.


[9]   The trial court held a hearing in May and June of 2016. At the hearing, Father

      called his son’s doctor who testified in favor of vaccinations, and he called an


      Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017   Page 4 of 16
       Episcopalian priest who testified that the Episcopalian faith—Mother’s faith—

       has no tenet against vaccinations. Mother called two expert witnesses who

       testified about the risks of vaccination and the ineffectiveness of vaccines.


[10]   On October 6, 2016, the trial court denied Father’s petition to modify custody,

       leaving the Decree unchanged. The trial court also denied Father’s contempt

       petition and related motion for rule to show cause, reasoning that Mother

       complied with the Decree when she claimed a religious objection to vaccinating

       Child. Finally, the trial court ordered Father to contribute $10,000 toward

       Mother’s attorney fees.


[11]   This appeal ensued.



                                   Discussion and Decision
                                          Standard of Review
[12]   Upon Mother’s timely written request, the trial court entered findings of fact

       and conclusions thereon pursuant to Indiana Trial Rule 52(A). In reviewing

       findings made pursuant to this rule, “we first determine whether the evidence

       supports the findings and then whether findings support the judgment.” K.I. ex

       rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009). We will “not set aside the

       findings or judgment unless clearly erroneous” and we give “due regard” to

       “the opportunity of the trial court to judge the credibility of the witnesses.” Ind.

       Trial Rule 52(A). Findings of fact are clearly erroneous when there is no

       support for them in the record, either directly or by inference. Steele-Giri v.

       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017   Page 5 of 16
       Steele, 51 N.E.3d 119, 125 (Ind. 2016). A judgment is clearly erroneous when

       there is no evidence supporting the findings or the findings fail to support the

       judgment. In re Adoption of O.R., 16 N.E.3d 965, 973 (Ind. 2014). A judgment

       is also clearly erroneous when the trial court applies the wrong legal standard to

       properly found facts. In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574,

       578 (Ind. 2017).


                                                    Contempt
[13]   Father challenges the trial court’s contempt determination, arguing that the trial

       court misinterpreted the Decree when it failed to hold Mother in contempt.


[14]   It is soundly within the discretion of the trial court to determine whether a party

       is in contempt, and we review the judgment under an abuse of discretion

       standard. Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016). “We will

       reverse a trial court’s contempt findings only if there is no evidence or

       inferences drawn therefrom to support them.” Hamilton v. Hamilton, 914

       N.E.2d 747, 755 (Ind. 2009). Additionally, because the trial court denied

       Father’s petition and motion, Father appeals from a negative judgment. See

       Comm’r, Dep’t of Envtl. Mgmt. v. RLG, Inc., 755 N.E.2d 556, 559 (Ind. 2001). In

       such circumstances, we will reverse the judgment only if it is contrary to law—

       where the evidence leads to but one conclusion and the trial court reached the

       opposite conclusion. Id. Moreover, in conducting our review, we consider the

       evidence in the light most favorable to the appellee. Id.




       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017    Page 6 of 16
[15]   To be held in contempt, a party must have willfully disobeyed a court order.

       City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005). “The order must have

       been so clear and certain that there could be no question as to what the party

       must do, or not do, and so there could be no question regarding whether the

       order is violated.” Id.


[16]   One of Father’s arguments is that the plain language of the Decree “calls for

       vaccinations based on the school’s requirements.” Appellant’s Br. at 22.

       Father directs us to the vaccination provision in the Decree, which reads: “If

       the child attends a school that requires vaccinations for enrollment, and the

       child will be denied enrollment unless she receives the vaccinations, then the

       child will be given the required vaccinations for enrollment.” Appellant’s App.

       Vol. II at 51. Father contends that this provision provides no exception.

       Mother responsively argues that Child was not denied enrollment because

       Mother submitted the religious objection form, and so because Child was not

       denied enrollment, the vaccination provision does not require Child’s

       vaccination.


[17]   It is important to note that this is a case of the trial court interpreting an

       agreement of the parties rather than an order of its own creation. “In the usual

       case, freedom of contract will, it is hoped, produce mutually acceptable accords,

       to which parties will voluntarily adhere.” Voigt v. Voigt, 670 N.E.2d 1271, 1278

       (Ind. 1996). There may be nuances to and purposes underlying the parties’

       agreement to which the trial judge may not be privy. See id. (“[T]he actual

       purpose lying behind any particular provision of a settlement agreement may

       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017     Page 7 of 16
       remain forever hidden from the trial judge. Indeed, it may be quite

       idiosyncratic.”). Indiana Code section 31-14-10-1 provides that in a paternity

       action, the court shall conduct a hearing to determine the issues of child

       support, custody, and parenting time upon finding that a man is the child’s

       biological father. However, the court may dispense with the hearing if the

       mother and father file a verified written stipulation or a joint petition resolving

       those issues. Ind. Code § 31-14-10-3. In that case, the court may approve the

       agreement if it is in the best interest of the child, In re Paternity of M.R.A., 41

       N.E.3d 287, 293 (Ind. Ct. App. 2015), and “shall incorporate provisions of the

       written stipulation or joint petition” into its orders, I.C. § 31-14-10-3. This is

       similar to the provisions of Indiana Code section 31-15-2-17(a) which allows

       parties to a dissolution to agree in writing to provisions for the custody and

       support of their children. Thus, we may look to caselaw discussing

       interpretation of settlement agreements in dissolution actions in addressing the

       issues presented by this paternity case.


[18]   Settlement agreements are contractual in nature and, once incorporated into a

       trial court’s final order, become binding on the parties. Whittaker v. Whittaker,

       44 N.E.3d 716, 719 (Ind. Ct. App. 2015). The court that adopts the agreement

       retains jurisdiction to interpret the terms of the agreement and to enforce them.

       Id. To interpret a contract, the court first considers the parties’ intent as

       expressed in the language of the agreement. Schmidt v. Schmidt, 812 N.E.2d

       1074, 1080 (Ind. Ct. App. 2004). It must then read all the provisions as a whole

       to find an interpretation that harmonizes the contract’s words and phrases and


       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017      Page 8 of 16
       gives effect to the parties’ intentions as of the time they entered the agreement.

       Id. If the language is unambiguous, the intent of the parties must be determined

       from the four corners of the agreement. Id. The terms of an agreement are

       ambiguous “only when reasonably intelligent persons would honestly differ as

       to the meaning of those terms.” Id. Reviewing the terms of a written contract

       is a pure question of law and therefore, our standard of review is de novo.

       Whittaker, 44 N.E.3d at 719.


[19]   Here, the Decree gives Mother latitude to make a range of decisions without

       input—and to make major medical, religious, and educational decisions after

       consulting Father. The vaccination provision, however, is a specific exception

       to this general rule. “It is well settled that when interpreting a contract, specific

       terms control over general terms.” GPI at Danville Crossing, L.P. v. W. Cent.

       Conservancy Dist., 867 N.E.2d 645, 651 (Ind. Ct. App. 2007), trans. denied. Thus,

       where the vaccination provision applies, the vaccination provision controls—

       without reference to the general legal-custody provision. See id.


[20]   The vaccination provision became applicable when Child reached school age,

       and it links the vaccination requirement to that of the school. Under the

       provision, Child could attend the Montessori school unvaccinated because

       vaccination was not a condition of enrollment. The public school, however,

       required vaccination, and the only reason Child could attend was because

       Mother claimed a religious objection to vaccination. “[U]nless the contract

       provides otherwise, all applicable law in force at the time the agreement is made

       impliedly forms a part of the agreement, because the parties are presumed to

       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017    Page 9 of 16
       have had the law in mind.” Schwartz v. Heeter, 994 N.E.2d 1102, 1106 (Ind.

       2013) (citation and internal quotation marks omitted). The religious objection

       exemption to the vaccination requirement has been in effect since 2005.

       Therefore, the parties are presumed to have been aware of it when they entered

       into their agreement in 2011. If the parties intended the religious objection

       exemption to apply, they most likely would not have included the vaccination

       provision in the agreement at all, because a religious objection would always

       trump a school’s vaccination requirement and the provision would be

       meaningless. At the very least, the parties could have provided for this

       exemption to the vaccination requirement in their agreement. Yet, the

       vaccination provision of the Decree is silent as to the religious objection

       exemption. Because there is no such exception in the language of the

       agreement and reading one in would void the provision, and because Mother’s

       wide latitude for decision-making is limited in this instance by the specific

       vaccination provision, the Decree accordingly requires that Child be vaccinated

       based on her school’s requirements.


[21]   The vaccination provision is clear that Child must be vaccinated if her school

       requires it regardless of the existence of the statutory exemption. We

       acknowledge, as the trial court did, that the religious objection statute does not

       impose a good faith requirement in order to invoke the exemption. We further

       acknowledge the trial court found “Mother’s testimony regarding her personal

       religious beliefs and how those affect her opinion on vaccinations to be sincere

       and valid to her.” Appellant’s App. Vol. II at 40. Although Mother’s “religious


       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017   Page 10 of 16
       objection” to vaccinations seems dubious given evidence that the religion she

       professes to practice does not in fact have a tenet objecting to administering

       vaccinations, the proper use and application of the religious exemption here is

       not at issue. Whether or not Mother would otherwise be entitled to invoke a

       religious objection to vaccinations, she is not entitled to do so here where she is

       subject to a court order approving an agreement she willingly entered into that

       requires vaccinations under these circumstances. Based on our interpretation of

       the contract between the parties, we conclude the trial court’s failure to find

       Mother in contempt for submitting the religious objection form to circumvent

       the agreement is contrary to law.


                                        Custody Modification
[22]   Father contends that the trial court abused its discretion in denying his petition

       to modify legal custody of Child based on Child not receiving any vaccinations

       since birth. We review decisions concerning custody modifications for an abuse

       of discretion, “with a ‘preference for granting latitude and deference to our trial

       judges in family law matters.’” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)

       (quoting In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993)). Following

       the establishment of paternity, a trial court may modify a child-custody order

       only upon a showing that modification is in the child’s best interests and that

       there has been a substantial change in one or more of the factors that the court

       may consider under Indiana Code section 31-14-13-2. I.C. § 31-14-13-6. Those

       factors include:



       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017   Page 11 of 16
               (1) The age and sex of the child.


               (2) The wishes of the child’s parents.


               (3) The wishes of the child, with more consideration given to the
               child’s wishes if the child is at least fourteen (14) years of age.


               (4) The interaction and interrelationship of the child with:


                        (A) the child’s parents;


                        (B) the child’s siblings; and


                        (C) any other person who may significantly affect the
                        child’s best interest.


               (5) The child’s adjustment to home, school, and community.


               (6) The mental and physical health of all individuals involved.


               (7) Evidence of a pattern of domestic or family violence by either
               parent.


       I.C. § 31-14-13-2.


[23]   With respect to modification of legal custody, a trial court should specifically

       consider whether there has also been a change in one of the statutory factors

       governing awards of joint legal custody. Julie C. v. Andrew C., 924 N.E.2d 1249,

       1259-60 (Ind. Ct. App. 2010). In a paternity case, those factors are:



       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017   Page 12 of 16
               (1) the fitness and suitability of each of the persons awarded joint
               legal custody;


               (2) whether the persons awarded joint legal custody are willing
               and able to communicate and cooperate in advancing the child’s
               welfare;


               (3) the wishes of the child, with more consideration given to the
               child’s wishes if the child is at least fourteen (14) years of age;


               (4) whether the child has established a close and beneficial
               relationship with both of the persons awarded joint legal custody;


               (5) whether the persons awarded joint legal custody:


                        (A) live in close proximity to each other; and


                        (B) plan to continue to do so;


               (6) the nature of the physical and emotional environment in the
               home of each of the persons awarded joint legal custody; and


               (7) whether there is a pattern of domestic or family violence.


       I.C. § 31-14-13-2.3(c).


[24]   Here, Mother and Father shared joint legal custody of Child, which was defined

       as requiring Mother to seek Father’s input before making any major medical,

       religious, or educational decisions for Child. We concluded above that the

       Decree requires that Child be vaccinated based on her school’s requirements

       and that Mother is in contempt for submitting the religious objection form in
       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017      Page 13 of 16
       order to circumvent the parties’ agreement. Based on Mother’s actions, there is

       a substantial change in Mother’s ability to communicate and cooperate with

       Father in advancing Child’s welfare. For the same reasons, modification of

       legal custody is in Child’s best interests. Accordingly, the trial court abused its

       discretion in denying Father’s petition to modify legal custody of Child for the

       limited purpose of making medical decisions concerning vaccinations.


                                                Attorney Fees
[25]   Father next argues that the trial court abused its discretion when it ordered him

       to contribute $10,000 toward Mother’s attorney fees. We review a trial court’s

       award of attorney’s fees for an abuse of discretion. In re Paternity of M.R.A., 41

       N.E.3d at 296. An abuse of discretion occurs when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before the

       court or if the court has misinterpreted the law. DePuy Orthopaedics, Inc. v.

       Brown, 29 N.E.3d 729, 731-32 (Ind. 2015).


[26]   Pursuant to Indiana Code section 31-14-18-2, a court in a paternity action may

       order a party to pay “(1) a reasonable amount for the cost to the other party of

       maintaining an action under this article; and (2) a reasonable amount for

       attorney’s fees, including amounts for legal services provided and costs

       incurred, before the commencement of the proceedings or after entry of

       judgment.” In awarding attorney fees, the trial court must consider the

       resources of the parties, their economic condition, the ability of the parties to

       engage in gainful employment and to earn adequate income, and such factors


       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017   Page 14 of 16
       that bear on the reasonableness of the award. Kieffer v. Trockman, 56 N.E.3d 27,

       33 (Ind. Ct. App. 2016). “The trial court may also consider any misconduct by

       one party that causes the other party to directly incur additional fees.” In re

       Paternity of M.R.A., 41 N.E.3d at 296. Moreover, “[w]hen one party is in a

       superior position to pay fees over the other party, an award of attorney fees is

       proper.” A.G.R. ex rel. Conflenti v. Huff, 815 N.E.2d 120, 127-28 (Ind. Ct. App.

       2004), trans. denied.


[27]   In ordering Father to pay $10,000 toward Mother’s attorney fees, the trial court

       found “that Father is in a superior economic position to Mother and that there

       is a significant disparity in their incomes.” Appellant’s App. Vol. II at 45. The

       trial court determined that Mother earned an annual income of approximately

       $60,000 and Father earned an annual income of approximately $150,000. The

       trial court also found that Mother incurred approximately $42,000 in attorney

       fees and Father incurred approximately $49,000 in attorney fees.


[28]   Father argues that the $10,000 fee award is unreasonable because there was

       evidence that Mother’s household income is higher than his, and that Mother

       could potentially earn twice as much if she were not a full-time parent. Father

       also asserts that Mother engaged in misconduct by submitting the religious

       objection form.


[29]   Had the record included only the disparity in Mother’s and Father’s personal

       incomes, we might have affirmed the attorney fee award. Here, however,

       Mother contemptuously circumvented the Decree, causing Father to initiate the


       Court of Appeals of Indiana | Opinion 49A04-1611-JP-2474 | July 26, 2017   Page 15 of 16
       instant proceedings—which Mother did not successfully defend. In light of

       Mother’s misconduct, we conclude that the trial court abused its discretion in

       ordering Father to contribute $10,000 toward her attorney fees.



                                                 Conclusion
[30]   The trial court abused its discretion when it denied Father’s contempt petition

       and related motion for rule to show cause, based on its misinterpretation of the

       Decree when analyzing the issues of this case. The trial court also abused its

       discretion in denying Father’s petition to modify legal custody of Child for the

       limited purpose of making medical vaccination decisions. Moreover, the trial

       court abused its discretion in requiring Father to contribute toward Mother’s

       attorney fees. Neither party challenges the denial of Father’s request for an

       order of estoppel, and we accordingly leave that portion of the trial court’s

       order undisturbed.


[31]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Robb, J., concur.




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