                                                                Nov 27 2013, 5:53 am

FOR PUBLICATION




ATTORNEY FOR APPELLANT:                        ATTORNEY FOR APPELLEE:

WILLIAM A. RAMSEY                              DEANNA A. DEAN-WEBSTER
Murphy Ice & Koeneman LLP                      Dean-Webster Wright LLP
Fort Wayne, Indiana                            Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

GLENN HATMAKER,                           )
                                          )
      Appellant,                          )
                                          )
             vs.                          )   No. 49A05-1305-DR-253
                                          )
BETTY HATMAKER,                           )
                                          )
      Appellee.                           )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable David J. Dreyer, Judge
                          Cause No. 49D10-1002-DR-6242


                               November 27, 2013

                         OPINION - FOR PUBLICATION

BAILEY, Judge
                                     Case Summary

       Glenn Hatmaker (“Father”) appeals from the deemed denial of a motion to correct

error which challenged an order denying his motions for unsupervised parenting time with

his child with Betty Hatmaker (“Mother”), and modification of child support. We reverse

and remand for further proceedings consistent with this opinion.

                                          Issues

       Father presents two issues for review:

       I.     Whether his parenting time was improperly restricted or eliminated; and

       II.    Whether the trial court abused its discretion in its refusal to modify
              Father’s child support obligation.

                             Facts and Procedural History

       Father and Mother were married in 2003 and separated in February of 2010. Father

was convicted of committing battery upon Mother and, on November 21, 2011, the parties

were divorced. At that time, Father was awarded only supervised visitation with the sole

child of the marriage, R.H., contingent upon the completion of domestic violence counseling.

       Father, who was receiving unemployment compensation of $390 per week, was

ordered to pay child support of $85 per week. At that time, Mother was earning $388.60 per

week and incurring child care expenses.

       Father completed domestic violence counseling and parenting classes. He also

submitted to a mental health evaluation but “no mental health care was recommended.”

(App. 16.) Accordingly, Father was eligible for alternative misdemeanor sentencing. He

also exercised parenting time with R.H. under the supervision of Kid’s Voice.

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       On January 8, 2013, Father filed a motion requesting unsupervised parenting time,

alleging that Kid’s Voice “no longer had time available,” that R.H. was suffering from

parental alienation syndrome, and that an order for supervision premised upon Indiana Code

section 31-14-14-5 (providing for a presumption of supervision in some domestic violence

cases) was not valid more than two years after the crime. (App. 21.) He also averred that his

income had decreased by more than 20% since the entry of the existing child support order,

and requested a reduction in his obligation.

       On February 19, 2013, a hearing was conducted at which both parties testified. Father

testified that he worked two days per week at a law firm and typically saw R.H. only about

two hours per month because the supervision fees were unaffordable. Mother testified that

she was afraid of Father, that he had obtained her address and sent letters, and also visited

R.H.’s school and questioned the principal about R.H.’s enrollment. On the same day as the

school visit, Mother had called police and an officer had discovered a decapitated rabbit on

Mother’s doorstep. Mother suspected Father as the source.

       On March 4, 2013, the trial court entered an order providing in relevant part:

       1. Respondent’s motions are denied.

       2. Parenting time shall be furnished to Respondent as previously ordered, and
          may be modified upon agreement of the parties at any time.

(App. 40.) Father filed a motion to correct error, which was deemed denied. This appeal

ensued.
                                 Discussion and Decision

                              I. Restriction of Parenting Time


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       Father was initially afforded only supervised parenting time through Kids’ Voice.

Apparently due to lack of funds, Father’s parenting time decreased to two hours monthly and,

according to Father, Kids’ Voice was no longer able or willing to maintain a time slot for

him. Father argues that the trial court’s refusal to lift the restriction and his inability to pay

for supervised sessions if available effectively eliminates his parenting time and that he is

entitled to unsupervised time with R.H..

       “In all visitation controversies, courts are required to give foremost consideration to

the best interests of the child.” Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App.

1998), trans. denied. We review parenting time decisions for an abuse of discretion. Id. 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. Sexton v.

Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.

       “The right of non-custodial parents to visit with their children is a ‘“sacred and

precious privilege.”’ Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App. 2003) (quoting

McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. Ct. App. 1997), trans. denied).

“Ideally, a child should have a well-founded relationship with each parent.” Id. Restriction

of parenting time is governed by Indiana Code section 31-17-4-1(a), which provides:

       A parent not granted custody of the child is entitled to reasonable parenting
       time rights unless the court finds, after a hearing, that parenting time by the
       noncustodial parent might endanger the child’s physical health or significantly
       impair the child’s emotional development.

Even though the statute uses the word “might,” this Court has previously interpreted the

language to mean that a court may not restrict parenting time unless that parenting time

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“would” endanger the child’s physical health or emotional development. D.B. v. M.B.V.,

913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009). A party who seeks to restrict a parent’s

visitation rights bears the burden of presenting evidence justifying such a restriction. Id.

The burden of proof is by a preponderance of the evidence. In re Paternity of W.C., 952

N.E.2d 810, 816 (Ind. Ct. App. 2011). We believe that an order for supervision constitutes

such a restriction.

        Here, the dissolution decree that limited Father to supervised parenting time included

no specific finding of endangerment. It appears that the restriction may have been premised,

at least in part, upon Indiana Code section 31-17-2-8.3, providing in relevant part:

        (a) This section applies if a court finds that a noncustodial parent has been
            convicted of a crime involving domestic or family violence that was
            witnessed or heard by the noncustodial parent’s child.

        (b) There is created a rebuttable presumption that the court shall order that the
            noncustodial parent’s parenting time with the child must be supervised:

            For at least one (1) year and not more than two (2) years immediately
            following the crime involving domestic or family violence[.]1

        Alleging that the statutory period had expired and the presumption was no longer

operative, Father sought modification of the existing parenting time order.                        Such

modifications are 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.

1
  The dissolution decree does not explicitly reference the statute or include a factual finding that R.H.
witnessed or heard domestic violence. However, the dissolution decree referred to Father’s arrest and
conviction for domestic battery and we presume that the dissolution court was aware of the statute.

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       Words and phrases within a statute are to be given their plain, ordinary, and usual

meaning unless a contrary purpose is clearly shown by the statute itself. Barger v. Pate, 831

N.E.2d 758, 763 (Ind. Ct. App. 2005). By its plain language, the statutory presumption of

Indiana Code section 31-17-2-8.3 has lapsed. In turn, the language of the modification

statute provides that parenting time rights may not be restricted absent a finding by the court

that parenting time might endanger the child’s health or significantly impair his or her

emotional development. We believe supervised visitation constitutes such a restriction.

       Here, the trial court heard evidence that Father had obtained Mother’s address, sent

letters and visited R.H.’s school. Mother testified to her fear of Father and her suspicion that

he left a decapitated rabbit at her residence. Documentary evidence indicated that Father had

completed anger management and parenting classes, participated in a mental health

evaluation, and qualified for alternative misdemeanor sentencing for the battery upon

Mother.

       The trial court made no finding of endangerment. Indeed, the trial court implicitly

found that parenting time modification presented no likely danger to R.H. as the order

provides for modification “upon agreement of the parties at any time.” (App. 40). In

essence, the order confers upon Mother the prerogative to enforce the supervision restriction

at her discretion. The order is erroneous, as it is internally inconsistent and in contravention

of statutory authority. Accordingly, we reverse the order denying Father parental access

except when supervised or upon agreement of Mother. We remand with instructions to the

trial court to either enter an order containing sufficient findings to support a parenting time


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restriction or enter an order that does not contain such a restriction. See Walker v. Nelson,

911 N.E.2d 124, 130 (Ind. Ct. App. 2009).

        Because it will likely arise on remand, we address Father’s claim that supervision fees

are unaffordable in his economic circumstances, and should be a factor militating toward an

order for unsupervised parenting time. The right of parenting time is subordinated to the best

interests of the child. Lasater v. Lasater, 809 N.E.2d 380, 401 (Ind. Ct. App. 2004).

Accordingly, if unsupervised parenting time would pose a danger to a child, the parent is not

entitled to dispense with supervision because of the costs associated with supervisory

programs. That said, however, our parenting time statutes do not prohibit the trial court from

exploring affordable options for low-income parents, such as grandparent, relative, or child

advocate volunteer supervision. Moreover, it appears that Mother has much greater earnings

than does Father and may be able to contribute to costs of supervision.

                               II. Modification of Child Support

        Indiana Code section 31-16-8-1 provides that child support modification may be made

“upon a showing of changed circumstances so substantial and continuing as to make the

terms unreasonable” or where a party has been ordered to pay an amount that differs by more

than twenty percent from the child support guideline amount and the existing order was

issued at least twelve months prior to the petition for modification. A trial court’s decision

regarding child support will be upheld absent an abuse of discretion. Sexton, 946 N.E.2d at

1183.

        Father contends that the trial court abused its discretion by refusing to modify his child


                                                7
support obligation in the face of uncontroverted evidence that his income had significantly

decreased while Mother’s had significantly increased. Mother does not dispute that her

income has increased while Father’s decreased, but argues that Father could not obtain a

modification based upon an unsigned child support worksheet. Father then responds that he

electronically signed a packet of materials including his economic statement and a child

support worksheet, while Mother failed to submit an economic statement. Nevertheless, we

need not enter into a debate regarding the sufficiency of Father’s purported electronic

signature, because a substantial change in circumstances is made evident from the parents’

testimony under oath, child support worksheets, paycheck stubs, and other documentation.

        Mother’s signed worksheet indicates that her income had increased from $388.60

weekly to $837 weekly. She no longer incurred child care expenses, but paid $15 per week

in medical and dental insurance premiums for R.H. In addition to his worksheet, Father

submitted into evidence a document disclosing that he had exhausted his unemployment

benefits. He submitted paycheck stubs from part-time work and testified that he had, two

weeks previously, obtained employment paying $128 per week. Mother also submitted into

evidence her paycheck stubs.

       Based upon this data, the Indiana Child Support Guideline amount of Father’s

obligation would be $22 weekly. The existing order was for $85 weekly. It is also

noteworthy that Father was responsible for paying all costs of supervised parenting time.

The trial court’s refusal to modify Father’s child support is contrary to the facts and

circumstances before it. We therefore reverse the order and remand for a child support order


                                             8
consistent with the Indiana Child Support Guidelines or providing reasons for a deviation.

        Because it will likely arise on remand, we address Father’s contention that a

modification of his child support should be retroactive to the date he filed his petition.

Generally, the trial court has the discretionary power to make a modification for child support

relate back to the date the petition to modify is filed or any date thereafter chosen by the trial

court. Sexton, 946 N.E.2d at 1183. Accordingly, while the trial court may choose to grant

Father’s request for relation back to the filing date, Father has no statutory entitlement to

such.

                                          Conclusion

        The order for supervised parenting time, modifiable upon agreement of the parties, is

contrary to law. The trial court abused its discretion by refusing to modify Father’s child

support obligation in the face of uncontroverted evidence that Mother’s income had increased

substantially while Father’s income had decreased substantially.

        Reversed and remanded for further proceedings consistent with this opinion.

MAY, J., and BRADFORD, J., concur.




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