MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       May 25 2017, 10:25 am
court except for the purpose of establishing
the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT
Heather M. Shumaker
Schuckit & Associates, PC
Zionsville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Karen Ellen Fielder,                                    May 25, 2017
Appellant-Petitioner,                                   Court of Appeals Case No. 49A02-
                                                        1609-DR-2038
        v.                                              Appeal from the Marion Superior
                                                        Court
Brandon Eric Fielder,                                   The Honorable James B. Osborn,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No. 49D04-
                                                        1104-DR-12772



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017      Page 1 of 11
                               STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Karen Fielder (Mother), appeals the trial court’s

      modification of her parenting time with the minor children.


[2]   We affirm.


                                                   ISSUE
[3]   Mother presents us with one issue on appeal, which we restate as: Whether the

      trial court abused its discretion in modifying her parenting time with her minor

      children.


                      FACTS AND PROCEDURAL HISTORY
[4]   Mother and Appellee-Respondent, Brandon Fielder (Father), have been

      involved in protracted dissolution of marriage and custody proceedings since

      2011. Upon the dissolution of their marriage, Father received sole legal and

      physical custody of the three minor children, now 10-year-old Ke.F., 13-year-

      old Ky.F, and 17-year-old B.F. Mother was granted supervised parenting time

      and was ordered to pay child support. On April 26, 2016, the trial court

      modified Mother’s parenting time schedule, granting her unsupervised visits

      with Ke.F. and Ky.F. for five hours every other weekend. On May 19, 2016,

      Mother filed a motion to modify custody, requesting sole physical custody of

      the minor children.


[5]   On August 15, 2016, the trial court conducted a hearing on Mother’s motion.

      During the hearing, the children’s Guardian ad Litem, David Reed (GAL

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 2 of 11
      Reed), testified as to his recommendations with respect to Mother’s motion.

      GAL Reed recommended leaving sole physical and legal custody with Father

      because the “children are doing very well in his care, and they are succeeding.”

      (Transcript p. 159). Expressing his surprise that the unsupervised visits with

      Mother were going well, he advised that Mother’s unsupervised parenting time

      should be increased to gradually become more in line with the Indiana

      Parenting Time Guidelines (the Guidelines), with the exception of overnight

      visitation. To ensure the children’s safety, GAL Reed suggested that the

      children have access to a phone to contact Father at any time they feel unsafe or

      uncomfortable during the visit. Recognizing that “there’s a positive movement

      with regard to the relationship [Mother] has with her children,” GAL Reed

      clarified that “extending [her] time actually makes me nervous as to how they

      might do going forward. I hope they continue to do well.” (Tr. pp. 161-62,

      165).


[6]   The trial court extensively questioned GAL Reed as to why he did not

      recommend overnight visitation in accordance with the Guidelines. In

      response, GAL Reed recalled certain incidents with Mother which occurred

      prior to the previous modification, and which had been taken into account

      when the previous order had granted Mother limited unsupervised visitation.

      GAL Reed mentioned that after the limited unsupervised visitation took effect,

      Ke.F. and Ky.F. “began to tell me that they are reluctant to spend the night

      with their [M]other.” (Tr. p. 164). “When I ask them what they want to see

      happen, they have both [] expressed the desire to spend more time with their


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 3 of 11
      [M]other, [], which I think is healthy, but they have both voiced reservations

      about spending the night with her.” (Tr. pp. 164-65). GAL Reed tempered his

      remarks and indicated that he could envision a time when overnight visits

      would be appropriate

              if things continue to go well with them having extended time
              together with no issues noted and the children feeling
              comfortable and feeling safe, [], they have access to a phone; they
              can contact [Father] if they feel uncomfortable or unsafe, then I
              could consider at some point down the road thinking that would
              be a reasonable thing to do.


      (Tr. p. 165).


[7]   Likewise, Father expressed his surprise that the five-hour unsupervised visits

      were going well: “[D]uring those five hour visits during the day, [] she keeps

      going from event to event, . . ., keeping the kids occupied during the entire time

      with the things that they’re doing, which makes it a little easier as opposed to

      just home time.” (Tr. p. 174). In line with GAL Reed’s recommendation,

      Father opined that “extending the visits would still be appropriate at this time

      just because [the children] have not expressed any deep concerns to me. [M]y

      concern is that still if they go into much longer or overnight during those down

      times when kids aren’t doing something every minute that is that where it could

      get more stressful on her. That’s my only concern.” (Tr. p. 175).


[8]   The following day, on August 16, 2016, the trial court issued its Order on

      Mother’s motion for modification of child custody, which concluded, in

      pertinent part:
      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 4 of 11
        1. Since the last [c]ourt Order modifying parenting time,
           nothing has changed that would support the [c]ourt’s granting
           Mother’s request for full custody. Father will continue to
           have sole physical and legal custody of the children.


        2. Since the last [c]ourt Order modifying parenting time,
           Mother’s unsupervised time with her children has gone
           without incident. Mother has displayed improved coping
           skills and more stability than in the past. Therefore Mother’s
           unsupervised time with [Ky.F. and Ke.F] will be increased to
           twelve hours every other weekend (either Saturday or
           Sunday). The parties may agree as to whether the visits occur
           on Saturday or Sunday and what hours the visits shall take
           place. But in the absence of agreement, the visits shall take
           place on Saturdays from 8:00 a.m. to 8:00 p.m. If conflicts
           arise for these visits on the part of either party, the parties
           shall communicate with one another via text or email as soon
           as the conflict is known and arrange an alternative date for the
           visit. During all times with Mother, the children are allowed
           to have a cellular telephone and are permitted to contact
           Father if at any point they feel uncomfortable or unsafe. In
           that event, Father may immediately retrieve the children.


        3. Mother and Father are ordered to actively communicate
           through the communication book. If the need for more
           immediate communication arises, Mother and Father may
           either text or email each other to address the immediate
           concern.


        4. The [c]ourt reminds both Mother and Father that neither
           should speak negatively about the other parent in the presence
           of or within earshot of the children.


        5. The GAL is directed to conduct a one-month and three-
           month review with the children to determine how the

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 5 of 11
                    visitations are proceeding and to take any other action the
                    GAL may deem appropriate.


                    ****


                7. All other prior [c]ourt Orders remain in effect.


       (Appellant’s App. Conf. Vol., pp. 50-51). 1


[9]    Mother now appeals. Additional facts will be provided as necessary.


                                 DISCUSSION AND DECISION
[10]   No longer contesting the denial of a change in custody, Mother focuses her

       argument on the trial court’s change in parenting time. Specifically, she

       contends that the modification of her parenting time in deviation of the

       minimum recommendations under the Guidelines required the trial court to

       make a finding that the visitation would endanger her children’s physical health

       or significantly impair their emotional development. Because the trial court

       failed to make that explicit finding, Mother claims that she is entitled to the

       parenting time in accordance with the Guidelines.




       1
         We recognize that Mother excluded the trial court’s Order from public access pursuant to Appellate Rule
       9(G), and therefore, we will endeavor to maintain confidentiality on appeal by omitting certain names and
       facts. But an appellate judicial opinion that both decides the case and articulates the law requires
       consideration of the underlying facts. Thus, we have included a number of facts derived from the
       confidential record because we deem such information essential to the resolution of the litigation and
       appropriate to further the establishment of precedent and the development of the law. See Drake v. Dickey, 2
       N.E.3d 30, 32 (Ind. Ct. App. 2013), aff’d, 12 N.E.3d 875 (Ind. 2014).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017               Page 6 of 11
[11]   “In all visitation controversies, courts are required to give foremost

       consideration to the best interests of the child.” Hatmaker v. Hatmaker, 998

       N.E.2d 758, 760 (Ind. Ct. App. 2013) (quoting Marlow v. Marlow, 702 N.E.2d

       733, 735 (Ind. Ct. App. 1998), trans, denied), trans. denied. We review parenting

       time decisions for an abuse of discretion. Hatmaker, 998 N.E.2d at 761. 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. Id. It appears that in the instant case, the trial court

       entered sua sponte findings. In such a situation, the specific factual findings

       control only the issues that they cover, and a general judgment standard applies

       to issues upon which there are no findings. Stone v. Stone, 991 N.E.2d 992, 998

       (Ind. Ct. App. 2013), aff’d on reh’g, 4 N.E.3d 666 (Ind. Ct. App. 2013). “It is not

       necessary that each and every finding be correct, and even if one or more

       findings are clearly erroneous, we may affirm the judgment if it is supported by

       other findings or otherwise supported by the record.” Id. We may affirm a

       general judgment with sua sponte findings on any legal theory supported by the

       evidence. Id. In reviewing the accuracy of the findings, we first consider

       whether the evidence supports them. Id. We then consider whether the

       findings support the judgment. Id. “We will disregard a finding only if it is

       clearly erroneous, which means the record contains no facts to support it either

       directly or by inference.” Id.


[12]   A judgment also is clearly erroneous if it relies on an incorrect legal standard,

       and we will not defer to a trial court’s legal conclusions. Id. at 998-99. We give

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 7 of 11
       due regard to the trial court’s ability to assess the credibility of witnesses and

       will not reweigh the evidence, and we must consider only the evidence most

       favorable to the judgment along with all reasonable inferences drawn in favor of

       the judgments. Id. at 999. Additionally, we “give considerable deference to the

       findings of the trial court in family law matters.” MacLafferty v. MacLafferty, 829

       N.E.2d 938, 940 (Ind. 2005). This deference is a reflection that the trial court is

       in the best position to judge the facts, ascertain family dynamics, and judge

       witness credibility. Id. “But to the extent a ruling is based on an error of law or

       is not supported by the evidence, it is reversible, and the trial court has no

       discretion to reach the wrong result.” Id. at 941.


[13]   Initially we note that Father did not file an appellate brief. When the appellee

       has failed to submit an answer brief we need not undertake the burden of

       developing an argument on the appellee’s behalf. Trinity Homes, LLC v. Fang,

       848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial court’s

       judgment if the appellant’s brief presents a case of prima facie error. Id. Prima

       facie error in this context is defined as, “at first sight, on first appearance, or on

       the face of it.” Id. Where an appellant is unable to meet this burden, we will

       affirm. Id.


[14]   Restriction or denial of parenting time as recommended under the Guidelines is

       governed by Indiana Code Section 31-17-4-2, which provides as follows:

               The court may modify an order granting or denying parenting
               time rights whenever modification would serve in the best
               interests of the child. However, the court shall not restrict a

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 8 of 11
               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.


       Indiana recognizes that the right of a noncustodial parent to spend time with his

       or her children is a “precious privilege.” Duncan v. Duncan, 843 N.E.2d 966,

       969 (Ind. Ct. App. 2006), trans. denied. Thus, although a court may modify a

       parenting time order when the modification would serve the interest of the child

       or children, a parent’s parenting time rights shall not be restricted unless the

       court finds that the parenting time might endanger the child’s physical health or

       significantly impair the child’s emotional development. Id. Even though the

       statute uses the word “might,” we have previously interpreted this language to

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

       “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), reh’g denied. A parent

       who seeks to restrict a parent’s parenting time rights bears the burden of

       presenting evidence justifying such a restriction. Id.


[15]   While we agree with Mother that the trial court did not explicitly find that

       parenting time in accordance with the Guidelines would endanger the

       children’s physical health or significantly impair the children’s emotional

       development, the trial court concluded so implicitly. See, e.g., J.M. v. N.M., 844

       N.E.2d 590, 600 (Ind. Ct. App. 2006) (Although no express finding was made,

       evidence was presented to support the conclusion that unsupervised parenting

       time would significantly impair the child’s emotional development.), trans.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 9 of 11
       denied. In its findings, the trial court articulated a concern for the children’s

       safety by ordering that “[d]uring all times with Mother, the children are allowed

       to have a cellular telephone and are permitted to contact Father if at any point

       they feel uncomfortable or unsafe.” (Appellant’s Conf. Vol., p. 51).


[16]   Moreover, the evidence presented at the hearing supports a similar conclusion.

       Even though both GAL Reed and Father expressed surprise at the relative

       success of the current unsupervised visitations, both articulated strong

       reservations to immediately increase the unsupervised visitation to the

       Guidelines’ recommended parenting time. While agreeing that Mother should

       receive an increase in visitation time with the children, based on past

       experience, they both advised to gradually increase the parenting time so as to

       secure the safety of the children and not make these visits too “stressful” for

       Mother. (Tr. p. 175). Even the children voiced a hesitation, through GAL

       Reed’s testimony, to overnight visitation with Mother at this time.


[17]   While we recognize that the current unsupervised visitation schedule still falls

       shy of the recommended parenting time under the Guidelines, it does represent

       an improvement on the previous order and provides Mother with immediate

       opportunities for more favorable visitation and a pathway to eventually secure

       parenting time in accordance with the Guidelines. Overall, we conclude that

       the trial court took a thoughtful approach to the visitation issue and struck a

       balance that adequately addresses the concerns of all, while recognizing the

       “positive movement” of Mother’s relationship with the children, and by

       providing Mother with opportunities for more rewarding parenting time,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 10 of 11
       immediately and in the future. (Tr. p. 162). As the wellbeing of the children is

       always our foremost concern, we affirm the trial court that at this time visitation

       pursuant to the Guidelines between Mother and the children would endanger

       their physical health or significantly impair their emotional development. See

       I.C. § 31-17-4-2. Therefore, we conclude that Mother failed to establish an

       abuse of discretion by the trial court.


                                            CONCLUSION
[18]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       when it modified Mother’s parenting time.


[19]   Affirmed.


[20]   May, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2038 | May 25, 2017   Page 11 of 11
