MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    May 11 2017, 5:36 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Laura Boyer King                                        Tia R. Brewer
Scott & Aplin LLC                                       Marion, Indiana
Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ashley E. Moore,                                        May 11, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A04-1609-DR-2207
        v.                                              Appeal from the Grant Superior
                                                        Court
David A Nacke,                                          The Honorable Warren Haas,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        27D03-1307-DR-236



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 1 of 11
[1]   Ashley E. Moore (“Mother”) appeals the trial court’s Order Modifying

      Parenting Time in favor of David A. Nacke (“Father”). Mother raises two

      issues, one of which we find dispositive and revise and restate as whether the

      court abused its discretion by modifying Father’s parenting time. We reverse.


                                      Facts and Procedural History

[2]   Mother and Father were married on October 4, 2008, and divorced on May 23,

      2014. They have two daughters born from the marriage: A.N, born in 2009,

      and E.N., born in 2011 (the “Children”). The parties agreed that Mother would

      have primary physical custody of the Children and that Mother and Father

      would share joint legal custody. The dissolution decree awarded Father

      parenting time every other week from Thursday at 1:00 p.m. to Sunday at 10:00

      a.m., and then every other week from Thursday at 1:00 p.m. to Friday at 9:00

      a.m., and additionally non-overnight midweek parenting time every

      Wednesday, resulting in four overnight visits in the two-week schedule.


[3]   Mother worked as a photographer, and she could perform about ninety percent

      of her work from home. She schedules her photography sessions when the

      Children are at school or gone. She has “maybe” two photo sessions away

      from her home per week during the spring and summer, and in the winter she

      sees “[m]aybe one (1) a month.” January 29, 2016 Transcript at 13.


[4]   On November 18, 2015, Father filed a Petition to Modify Parenting Time, a

      Petition for Citation, and a Motion for Change of Judge, in which he requested

      that his Wednesday parenting time be modified to overnight visits for two

      Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 2 of 11
      additional overnights in the two-week schedule. Father’s request for a change

      of judge was granted, and the case was transferred to Grant Superior Court 3.

      On December 16, 2015, Mother filed a Petition to Modify Parenting Time and

      Child Support, in which she requested that one Thursday be modified to non-

      overnight midweek parenting time, which would result in one fewer overnight

      for Father in the two-week schedule.


[5]   On January 29, 2016, the court held a hearing on the parents’ petitions to

      modify parenting time and child support. At the hearing, the parties came to an

      agreement regarding the use of care providers for the Children and stipulated

      that if either parent needed to leave the Children, it was acceptable for their

      parents to care for the Children as part of that parent’s parenting time.

      Following the stipulation, Father withdrew his Petition for a Citation.


[6]   At the hearing, Father introduced a recorded telephone conversation between

      him and Mother from November 5, 2015, which the trial court admitted over

      Mother’s objection. During the call, Mother used foul language and insults,

      including, “I am sick of you,” and “[y]ou’re an idiot. You’re a f------ idiot . . . .”

      January 29, 2016 Transcript at 115-116. After hearing the recording, the court

      stated, “[u]ntil I heard that recording, I thought I had two (2) marvelous parents

      putting the needs of the children first in most cases, working with one another

      well and, uh, unfortunately then the splash of water went on that. So that

      makes it very difficult.” Id. at 120. The court further stated that Mother, “just

      really, really, um, did poorly. And I’m expecting better of you,” and after



      Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 3 of 11
      Mother expressed disappointment in herself, the court continued: “Good. So,

      this is a great chance to do better.” Id.


[7]   On February 3, 2016, the court issued an Order Modifying Parenting Time

      stating in part:


              4.      Mother is self-employed as a professional photographer
                      and is often busy working in that capacity on weekends. . .
                      .

              5.      The parties are equally good when it comes to providing
                      care, love, and attention to the children.

              6.      At some point Mother began using Father’s desire for
                      “extra” parenting time as a club or leverage against him,
                      instead of putting the best interests of the children first.
                      The Court finds it necessary to modify the existing
                      parenting time orders. To best accommodate the parties’
                      schedules, the Court modifies the parenting time order as
                      follows:

                      A.       Every other week from Thursday at 3:00 p.m. until
                               Sunday at 5:00 p.m. Father is not required to take
                               the children to church, but may do so, if he wishes.

                      B.       Every other week from Thursday at 3:00 p.m. until
                               Sunday at 8:00 a.m. This will make it possible for
                               Mother to take the children to church on that
                               Sunday.

                      C.       The other provisions of the Parenting Time
                               Guidelines are incorporated. . . .

      Appellant’s Appendix Volume II at 14.


[8]   On February 11, 2016, Mother filed a Motion to Clarify Order Modifying

      Parenting Time concerning the court’s ruling as it pertained to the summer


      Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 4 of 11
      months, and on March 4, 2016, Mother filed a notice of appeal. On July 7,

      2016, this Court entered an order dismissing the appeal, without prejudice,

      because the February 3, 2016 order was not a final appealable order. The trial

      court held a hearing on August 24, 2016, during which the court stated that

      “the parenting time was actually designed to . . . work around [Mother’s]

      choice of being a professional photographer.” August 24, 2016 Transcript at 4.

      On August 25, 2016, Mother filed an Amended Motion for Change of Judge,

      and the motion was denied the next day.


[9]   On August 26, 2016, the court issued an Order Modifying Child Support and

      Clarifying Parenting Time stating that “summer parenting time was to be 1 full

      week with Father and 1 full week with Mother during the girls’ summer

      vacation from school.” Appellant’s Appendix Volume II at 22. The court also

      stated in its order as follows:


              Happily, it seems Mother and Father are good parents and have
              created a loving environment for their children despite their
              personal and courtroom disputes.

                                               *****

              The parenting time order was the Court’s effort to reduce
              uncertainty and to accommodate Mother’s work schedule as a
              professional photographer. The traditional parenting time order
              didn’t work for Mother and she was using Father’s parenting
              time as a vehicle to punish Father. During her testimony on
              January 29, 2016, and again on August 24, 2016, the Court was
              impressed with how pleasant, professional, and caring she
              presented herself to be. Unfortunately, outside the courtroom her
              demeanor was quite different.

                                               *****

      Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 5 of 11
               Despite the differences presented at the hearings, Mother and
               Father both appear to genuinely care for their children and the
               current parenting time order seems to be working for them and
               the children.

       Id. at 17, 19, 23. The order included a transcript of the November 5, 2015

       recorded phone conversation, and afterward the court stated: “The only thing

       missing from the transcript is the terrible and hateful way Mother made those

       statements to Father trying to control his contact with the children, the

       undersigned felt and feels that the parenting time orders entered on February 3,

       2016, were and are necessary.” Id. at 22.


                                                   Discussion

[10]   The issue is whether the court abused its discretion by modifying Father’s

       parenting time. Where, as here, the court entered findings sua sponte, such

       findings control only as to the issues they cover, and a general judgment will

       control as to the issues upon which there are no findings. Yanoff v. Muncy, 688

       N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made findings of fact,

       we apply the following two-tier standard of review: We determine whether the

       evidence supports the findings of fact, and whether the findings of fact support

       the conclusions thereon. Id. Findings will be set aside if they are clearly

       erroneous. Id. “Findings are clearly erroneous only when the record contains

       no facts to support them either directly or by inference.” Id. A judgment is

       clearly erroneous if it applies the wrong legal standard to properly found facts.

       Id. To determine that a finding or conclusion is clearly erroneous, our review of


       Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 6 of 11
       the evidence must leave us with the firm conviction that a mistake has been

       made. Id. “A general judgment entered with findings will be affirmed if it can

       be sustained on any legal theory supported by the evidence.” Id.


[11]   A decision about parenting time requires us to “give foremost consideration to

       the best interests of the child.” Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.

       2013) (quoting Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App. 1998),

       trans. denied); see also Ind. Code § 31-17-4-2 (“The court may modify an order

       granting or denying parenting time rights whenever modification would serve

       the best interests of the child. . . .”). Parenting time decisions are reviewed for

       an abuse of discretion. Perkinson, 989 N.E.2d at 761. Judgments in custody

       matters typically turn on the facts and will be set aside only when they are

       clearly erroneous. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). “We

       will not substitute our own judgment if any evidence or legitimate inferences

       support the trial court’s judgment.” Id. at 1257-1258. A trial court’s finding

       that modification is in a child’s best interest must be either explicit or implicit in

       its order. K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 458 (Ind. 2009).


[12]   Mother asserts that the trial court abused its discretion in modifying parenting

       time in favor of Father where it made no finding that a modification was in the

       Children’s best interest. She argues that the court “modified the parents’

       parenting time radically by removing Fridays and Saturdays from [her]

       schedule altogether” and that there was no evidence such modification was in

       the Children’s best interest. Appellant’s Brief at 19. She contends that the

       court’s express purpose of the modification was to accommodate her work

       Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 7 of 11
       schedule, which is not a proper basis for modification, nor was it supported by

       the evidence. She further argues that the modification was a result of the

       court’s opinion of her after hearing the November 5, 2015 recording.


[13]   Father contends the court did not abuse its discretion and that the findings

       supported the modification because “[t]he evidence support [sic] the inference

       that Mother having control over granting or denial of additional parenting time

       was used a [sic] leverage or a weapon against Father.” Appellee’s Brief at 9.

       He asserts that although the court may not have used the specific language, “the

       evidence presented clearly supports the trial court’s decision and that decision is

       in the best interest of the children.” Id.


[14]   We find that the court failed to articulate how the parenting time modification

       would serve the Children’s best interest. In analyzing the best interests of the

       children under Ind. Code § 31-17-4-2, it is appropriate to examine the factors

       enunciated in Ind. Code § 31-17-2-8. See In re Paternity of Snyder, 26 N.E.3d 996,

       998 (Ind. Ct. App. 2015) (noting that considering the factors in Ind. Code § 31-

       17-2-8 is appropriate in analyzing the child’s best interests under Ind. Code §

       31-17-4-2); see also Milcherska v. Hoerstman, 56 N.E.3d 634, 638 (Ind. Ct. App.

       2016) (noting that the factors listed in Ind. Code § 31-17-2-8 apply when

       analyzing the best interests of the child in family law matters). Ind. Code § 31-

       17-2-8 lists the following factors for determining the best interests of the child:


               (1)     The age and sex of the child.

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


       Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 8 of 11
               (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 parent or parents;

                       (B)      the child’s sibling; and

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

               (5)     The child’s adjustment to the child’s:

                       (A)      home;

                       (B)      school; and

                       (C)      community.

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

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

[15]   The primary reason given by the court in modifying Father’s parenting time

       was Mother’s work schedule. In its February 3, 2016 Order Modifying

       Parenting Time, it stated that the modification was ordered “[t]o best

       accommodate the parties’ schedules . . . .” Appellant’s Appendix Volume II at

       14. In its August 26, 2016 Order Modifying Child Support and Clarifying

       Parenting Time, it reiterated that, “[t]he parenting time order was the Court’s

       effort to reduce uncertainty and to accommodate Mother’s work schedule . . . .”

       Id. at 19. However, there was no evidence presented that Mother’s work

       schedule was having a detrimental effect on the Children, or even that her work


       Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 9 of 11
       interfered with her time with the Children. Indeed, Father’s motion did not

       even request additional weekend parenting time and instead focused on

       changing his Wednesday parenting time to overnights. In the absence of such

       evidence demonstrating that the modified parenting time schedule serves the

       Children’s best interest, we do not find that the trial court had a proper basis

       upon which to modify Father’s parenting time.


[16]   In addition to Mother’s work schedule, the court indicated in its orders that it

       modified Father’s parenting time due to its perception that “Mother began

       using Father’s desire for ‘extra’ parenting time as a club or leverage against him,

       instead of putting the best interests of the children first.” Id. at 14. In its August

       26, 2016 order, the court took the unusual step of transcribing the November 5,

       2015 recording and included its observation that “[t]he only thing missing from

       the transcript is the terrible and hateful way Mother made those statements to

       Father trying to control his contact with the children . . . .” Id. at 22. Again,

       however, the court did not modify Father’s parenting time in the manner he

       requested, and it did not explain how the schedule it set, particularly as opposed

       to ordering Wednesday overnights as Father requested, better serves the

       Children’s best interest. We find that the parenting time modification orders,

       which eliminated entirely Mother’s parenting time on Fridays and Saturdays

       during the school year, were crafted in part to punish Mother.


[17]   In its February 3, 2016 order, the court made a specific finding that “[t]he

       parties are equally good when it comes to providing care, love, and attention to

       the children.” Id. at 14. In its August 26, 2016 order, it found that “Mother

       Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017   Page 10 of 11
       and Father are good parents and have created a loving environment for their

       children despite their personal and courtroom disputes,” and “Mother and

       Father both appear to genuinely care for their children . . . .” Id. at 17, 23. As

       discussed, the court did not provide reasons for modifying Father’s parenting

       time on bases that relate to serving the Children’s best interest. We therefore

       conclude that the court abused its discretion when it modified Father’s

       parenting time. We reverse the court’s orders and reinstate the previous

       parenting time schedule provided in the dissolution decree. The court’s order

       modifying child support, contained in the August 26, 2016 order and predicated

       on the parenting time modification, is also reversed. 1


                                                     Conclusion

[18]   For the foregoing reasons, we reverse the court’s orders modifying Father’s

       parenting time and child support.


[19]   Reversed.


       Vaidik, C.J., and Bradford, J., concur.




       1
         We note that evidence was presented at the August 24, 2016 hearing that since the court’s initial February
       3, 2016 order, Mother has ceased pursuing employment as a photographer and now is employed by the same
       school the Children attend as a “technician teacher,” in which she teaches “anything like computer or media
       wise to students.” August 24, 2016 Transcript at 15.

       Court of Appeals of Indiana | Memorandum Decision 27A04-1609-DR-2207 | May 11, 2017            Page 11 of 11
