MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                           Aug 31 2016, 8:00 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael H. Michmerhuizen                                Nicholas J. Hursh
Barrett McNagny LLP                                     Paul R. Sturm
Fort Wayne, Indiana                                     Shambaugh, Kast, Beck &
                                                        Williams, LLP
                                                        Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of:                                  August 31, 2016
                                                        Court of Appeals Case No.
David A. Anzelmo,                                       17A03-1512-DR-2170
Appellant-Respondent,                                   Appeal from the Dekalb Superior
                                                        Court
        v.                                              The Honorable Monte L. Brown,
                                                        Judge
Elizabeth M. Anzelmo,                                   Trial Court Cause No.
Appellee-Petitioner.                                    17D02-1011-DR-323




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016       Page 1 of 24
                                       Statement of the Case
[1]   David A. Anzelmo (“Father”) appeals the trial court’s denial of his Motion to

      Continue a custody modification hearing where the court granted Elizabeth M.

      Anzelmo (“Mother”) sole legal custody of their two children. At the same

      hearing, the court found Father in contempt of court due to Father’s failure to

      pay child support and for extracurricular expenses. Father raises the following

      issues for our review:


              1.      Whether Father was prejudiced by the denial of his request
                      for a continuance.


              2.      Whether the trial court abused its discretion when it
                      modified custody and parenting time.


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


                                 Facts and Procedural History
[3]   On October 1, 2010, Mother filed a petition for dissolution of marriage against

      Father. On January 26, 2012, the parties entered into a Mediated Marital

      Settlement (“the Settlement”). The Settlement provided, in relevant part, that

      the parties would have joint legal custody of their minor children, with Mother

      having primary physical custody. The Settlement also allowed Father parenting

      time with the children pursuant to the Indiana Parenting Guidelines, with the

      following additions: one overnight visit on weekdays, one extra weekday visit,

      and alternate weekends extended by one day. On May 2, the parties entered

      into a Stipulation for Court Order to Counsel and Mediate Child Issues,

      Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 2 of 24
      whereby the parties stipulated that, prior to seeking assistance from the Court,

      the parties would seek counseling with Reverend Dr. Thomas Smith regarding

      issues associated with parenting time. The dissolution court accepted that

      stipulation (“the stipulation”).


[4]   On March 19, 2015, Mother filed a Verified Information for Rule to Show

      Cause (“March 19 Rule to Show Cause”) in which she asserted that Father had

      refused to pay both his child support obligations and his portion of the

      children’s extracurricular expenses. On April 14, Mother filed another Rule to

      Show Cause (“April 14 Rule to Show Cause”) in which she asserted that Father

      had failed to abide by parenting time exchange stipulations. The trial court

      scheduled both Rules to Show Cause for a hearing for June 15.


[5]   On June 3, Father asked his counsel to withdraw, and Father’s counsel filed his

      motion to withdraw with the trial court. On June 10, the court granted that

      motion. On June 11, Father filed a letter with the court requesting a

      continuance for the June 15 hearing date due to lack of legal representation.

      The court granted Father’s request for a continuance and rescheduled the

      hearing for August 5.


[6]   On June 24, Mother filed a Verified Petition to Modify Custody and

      Respondent’s Parenting Time (“Petition to Modify Custody”), which the court

      also scheduled for hearing on August 5. About three weeks after Mother’s

      filing, on July 13 Father contacted Attorney Linda Peters Chrzan and requested

      that she represent him. However, she informed him that, because of a prior


      Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 3 of 24
      commitment, she would be unable to represent him on the August 5 hearing

      date. Chrzan also informed Father that, even if she were available to represent

      him, less than thirty days would not be sufficient time for her to prepare for a

      contested custody hearing. Since Father had a desire to be represented by

      Chrzan, Chrzan sent an email to Mother’s counsel on July 17 and stated that

      Father had contacted her to be his counsel, but that she was unavailable on

      August 5. She requested that Mother’s counsel agree to reset the hearing

      following mediation consistent with the Indiana Parenting Time Guidelines.

      Chrzan followed up with Mother’s counsel on July 20 and 23. Mother’s

      counsel did not respond until July 23, when he advised Chrzan that Mother did

      not agree to continue the hearing.


[7]   On July 29, Father filed a letter with the court in which he requested a

      continuance due to Chrzan’s scheduling conflict (“Motion to Continue”).

      However, the trial court denied his request on July 31. On August 5, Father

      appeared pro se and Mother appeared with counsel. At the hearing, Father

      renewed his request for a continuance, but the court denied it.


[8]   On September 1, the trial court issued an order in which it denied the April 14

      Rule to Show Cause. In regards to the March 19 Rule to Show Cause, the

      court found that Father had refused to pay his child support and his portion of

      the extracurricular expenses. Therefore, the trial court found Father in

      contempt and ordered him to pay his obligations within sixty days of the

      contempt order. Finally, in regards to the Petition to Modify Custody, the



      Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 4 of 24
court entered the following relevant findings of fact, conclusions thereon, and

judgment:


        11.     That with regard to the Petitioner’s Petition to Modify
                Custody and Parenting Time, the Court makes the
                following findings and conclusions:


                (a)     That Petitioner no longer agrees that joing legal
                        custody is in the best interest of the parties’ minor
                        children;


                (b)     That the communication between Petitioner and
                        Respondent has deteriorated from the date said
                        agreement was entered into and specifically has
                        deteriorated further since August 20, 2014, to the
                        point where it is largely ineffective between the two
                        parties;


                (c)     That the evidence established that the children’s
                        homework is not being properly completed when
                        with Respondent;


                (d)     That the exchange of the children for parenting time
                        purposes is often time[s] hostile and [the children]
                        are frequently not exchanged as agreed upon; and


                (e)     That the Court finds there is a substantial change in
                        more than one of the factors the Court may consider
                        pursuant to I.C. 31-17-2-8.


        12.     That the Court finds that a modification of the Custody
                and Parenting Time Order heretofore entered is in the best
                interest of the parties’ minor children.


Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 5 of 24
              13.     That the Custody Order heretofore entered is modified and
                      the Petitioner is immediately granted the sole legal and
                      sole physical custody of the parties’ minor children.


              14.     That the Parenting Time Order heretofore entered is
                      modified immediately and Respondent is now granted
                      parenting time with the parties’ minor children as so
                      provided for in the Indiana Parenting Time Guidelines,
                      specifically, section 2(D)(1), a copy of which Parenting
                      Time Guidelines are attached hereto[,] incorporated
                      herein[,] and made a part hereof.


              15.     That the exchange of the children for parenting time
                      purposes shall occur as provided for at paragraph 1(c) of
                      the Mediated Stipulation filed on August 20, 2014.


              16.     That both parties are admonished that[,] unless otherwise
                      agreed to in writing (which can include e-mail and text
                      messaging)[,] said exchange shall be completed in a timely
                      manner as provided for in the Parenting Time Guidelines.


      Appellant’s App. at A-022-23.


[9]   On September 28, Father, by counsel, filed a Motion to Correct Error and

      Request for a New Trial on the grounds that the court had erred when it denied

      his Motion to Continue. Father asserted that the trial court violated his due

      process rights in its failure to allow him to obtain new counsel and that the

      modification of custody was contrary to the children’s best interests and not




      Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 6 of 24
       supported by the record. Furthermore, he also contended that six weeks1 was

       not sufficient time to prepare for a contested custody trial and that the finding of

       contempt was in error. This appeal ensued.


                                         Discussion and Decision
                                          Denial of Motion to Continue

[10]   Father first asserts that the trial court erred when it denied the Motion to

       Continue. Our standard of review for a denial of a motion for a continuance is

       well-settled:2

                 The decision to grant or deny a motion for a continuance is
                 within the sound discretion of the trial court. We will reverse the
                 trial court only for an abuse of that discretion. An abuse of
                 discretion may be found on the denial of a motion for
                 continuance when the moving party has shown good cause for
                 granting the motion. A trial court abuses its discretion when it
                 reaches a conclusion which is clearly against the logic and effect
                 of the facts or the reasonable and probable deductions which may
                 be drawn therefrom. If good cause is shown for granting the
                 motion, denial of a continuance will be deemed to be an abuse of
                 discretion.


       F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012) (citations and

       quotations omitted).




       1
           Mother filed Petition to Modify Custody on June 24, which was six weeks prior to the hearing date.
       2
        This appeal ensues from a Motion to Correct Error regarding the denial of Father’s Motion to Continue.
       The standard of review for a Motion to Correct Error is also an abuse of discretion. Allstate Ins. Co. v.
       Hennings, 827 N.E.2d 1244, 1250 (Ind. Ct. App. 2005).

       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016           Page 7 of 24
[11]   Father contends that the trial court abused its discretion when it denied his

       Motion to Continue. Specifically, Father contends that he showed good cause

       for the continuance because he was did not have counsel, was diligent in

       attempting to hire new counsel, and did not have sufficient time to prepare for

       hearing once he did find new counsel. He also maintains that he was

       prejudiced by the denial of his Motion to Continue because he had to proceed

       pro se during the August 5 hearing.


[12]   “The withdrawal of legal counsel does not entitle a party to an automatic

       continuance, and the moving party must show diligence in procuring counsel.”

       Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292, 311 (Ind. Ct. App. 2000)

       (citations omitted). In Riggins, we held that the appellant did not diligently seek

       new counsel when over eight months had elapsed between the time his first

       attorney withdrew and the trial, and over five months had elapsed between the

       time his second attorney withdrew and the trial, yet the appellant had contacted

       only eight attorneys in that entire time period. Id. at 311-12. We also noted

       that the appellant did not obtain counsel until thirty days before trial and, even

       then, counsel’s representation was conditioned on the appellant obtaining a

       sixty-day continuance. Id. Under such circumstances, we held that the trial

       court did not abuse its discretion in denying the appellant’s motion for a

       continuance. Id. at 312.


[13]   Similarly, in Gunshekar v. Grose, 915 N.E.2d 953, 956 (Ind. 2009), the

       appellants’ attorney filed a motion to withdraw eight weeks before trial. Id. at

       954. The trial court granted the attorney’s motion six weeks before trial. Id.

       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 8 of 24
       Eleven days before trial and nearly forty-five days after counsel had withdrawn,

       the appellants requested a continuance for more time to hire new counsel. Id.

       The trial court denied the request, and our supreme court held that the trial

       court’s judgment was not an abuse of its discretion. Id. at 956. In particular,

       the court reasoned that the appellants neither said nor did anything to indicate

       that they had diligently sought new counsel “during the eight weeks after

       attorney Martin withdrew.” Id.


[14]   In Danner v. Danner, 573 N.E.2d 934, 936-37 (Ind. Ct. App. 1991), trans. denied,

       which involved a modification of the decree of marriage dissolution and a

       protective order, the appellant sought a continuance after he had obtained new

       counsel six weeks before the hearing. On appeal from the trial court’s denial of

       that request, the appellant contended that he was prejudiced by the denial of his

       motion because six weeks was not sufficient time for his new counsel to obtain

       experts. Id. at 937. This court disagreed and affirmed the trial court’s

       judgment. Id. This court reasoned that appellant’s “new counsel entered his

       appearance six weeks before the hearing which was sufficient time to secure

       experts.” Id.


[15]   The present case is similar to both Riggins and Gunshekar in that Father’s

       attempts to secure new counsel were not diligent. After Father contacted

       Chrzan on July 13 and she informed him that she was unavailable for the

       August 5 hearing, Father did not make any other attempts to secure new

       counsel over the ensuing 23 days. Furthermore, the trial court had accepted the

       withdrawal of Father’s initial counsel on June 10, 2015, one week after Father

       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 9 of 24
       had asked his initial counsel to withdraw, and Mother filed the Petition to

       Modify Custody on June 24. Yet, Father did not attempt to contact any

       attorneys at all until he contacted Chrzan on July 13, less than one month

       before the August 5 hearing. Finally, Father’s contention that six weeks was

       insufficient time to prepare for a custody hearing and conduct discovery is no

       more meritorious here than it was in Danner.


[16]   In sum, Father cannot demonstrate that the trial court abused its discretion

       when it denied his Motion to Continue. Accordingly, we affirm the trial court’s

       judgment.


[17]   Father also appeals both the order modifying legal custody and the order

       modifying parenting time. We address each in turn.


                                          Modification of Custody

[18]   Father asserts that the trial court erred when it modified the parties’ custody.

       Our standard of review in a custody modification is for abuse of discretion.

       Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010) (citations

       omitted). However, when the trial court enters findings and conclusions

       pursuant to Indiana Trial Rule 52, as it did here, our standard of review is as

       follows:


               First, we determine whether the evidence supports the findings
               and second, whether the findings support the judgment. In
               deference to the trial court’s proximity to the issues, we disturb
               the judgment only where there is no evidence supporting the
               findings or the findings fail to support the judgment. We do not
               reweigh the evidence, but consider only the evidence favorable to
       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 10 of 24
               the trial court’s judgment. Challengers must establish that the
               trial court’s findings are clearly erroneous. Findings are clearly
               erroneous when a review of the record leaves us firmly convinced
               a mistake has been made. However, while we defer substantially
               to findings of fact, we do not do so to conclusions of law.
               Additionally, a judgment is clearly erroneous under Indiana Trial
               Rule 52 if it relies on an incorrect legal standard. We evaluate
               questions of law de novo and owe no deference to a trial court’s
               determination of such questions.


       Estate of Kappel v. Kappel, 979 N.E.2d 642, 651-52 (Ind. Ct. App. 2012)

       (quotation marks and citations omitted).


[19]   In Julie C., 924 N.E.2d at 1259-60, we held that the trial court must consider

       three statutes when modifying legal custody: Indiana Code Sections 31-17-2-8,

       -15, and -21. Indiana Code Section 31-17-2-21 states in relevant part:

               (a) 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 . . . of
                       this chapter.


               (b) In making its determination, the court shall consider the
               factors listed under section 8 of this chapter.


       Indiana Code Section 31-17-2-8 contains factors that the trial court must

       consider when making an initial custody order, namely:

               (1) The age and sex of the child.
       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 11 of 24
        (2) The wishes of the child’s parent or 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 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.


        (8) Evidence that the child has been cared for by a de facto
        custodian . . .




Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 12 of 24
       Finally, Indiana Code Section 31-17-2-15 contains factors that are pertinent

       specifically to joint legal custody:


               (1) the fitness and suitability of each of the persons awarded joint
               custody;


               (2) whether the persons awarded joint 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 custody;


               (5) whether the persons awarded joint custody:


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


                       (B) plan to continue to do so; and


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


[20]   Here, the trial court found that modification of custody from joint legal custody

       to sole legal custody with Mother was in the best interests of the children and

       that there had been a substantial change in the factors contained in Indiana

       Code Section 31-17-2-8. The court based that finding on: the wishes of

       Mother, the deterioration of communication between the parties, the children’s


       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 13 of 24
       failure to properly complete homework when with Father, and the hostility or

       lack of agreement regarding parenting time exchanges. However, the trial court

       did not enter a finding that the deterioration of communication and hostility

       were solely attributable to Father. Rather, the court admonished both parties to

       timely complete exchanges of the children unless they can agree otherwise.


[21]   The parties’ mutual failure to cooperate cannot provide a basis for changing

       legal custody from joint to solely with Mother. As we have explained in

       another case involving a petition to modify joint custody:

               Generally, cooperation or lack thereof is not appropriate grounds
               for switching custody. Were a court to consider it in determining
               a change of custody, it would impermissibly punish a parent for
               noncompliance with a custody agreement. This is in accordance
               with the supremacy of the child’s interest in permanence and
               stability over a parent’s preferences. To do otherwise would be
               ignoring the very interest courts are trying to protect. Only in
               cases of egregious violations of custody where the child’s welfare
               is at stake should a court modify a custody order. The
               noncustodial parent must show something more than isolated
               acts of misconduct by the custodial parent to warrant a
               modification of [a] child custody order; the noncustodial parent
               must show that the changed circumstances regarding the
               custodial parent’s stability and the child’s well-being are
               substantial and continuing.


       Pierce v. Pierce, 620 N.E. 2d 726, 730 (Ind. Ct. App. 1993) (citation and

       quotations omitted), trans. denied. Pierce involved a petition to modify the same

       type of custody arrangement we have here, namely, joint legal custody, with

       one parent having sole physical custody. Id. at 728. Yet, even in a joint


       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 14 of 24
       custody arrangement, the Pierce court determined that a deterioration in

       parental communication is not a substantial change warranting custody

       modification unless it is so egregious as to adversely affect the child’s welfare.

       Id. at 730. Pierce, unlike the instant case, did involve such egregious

       misbehavior. Id. at 731.


[22]   Here, Mother failed to show substantial changes warranting modification of

       custody. Rather, Mother’s contentions essentially amount to allegations of

       insufficient communication between the two parties. For example, at trial,

       Mother’s counsel stated that, if Father had simply respected her and the pick-up

       times, drop-off times, and children’s extracurricular activities, Mother would

       not have sought custody modification. Tr. at 104-05. However, those

       annoyances do not amount to continuous acts of misconduct that place the

       children’s welfare at risk. See id.


[23]   In addition, although Mother contends that the children’s homework was not

       being completed while in Father’s care, she did not present any evidence that

       indicates that the children were struggling academically. In Hayley v. Hayley,

       771 N.E.2d 743, 748-49 (Ind. Ct. App. 2002), Father demonstrated a substantial

       change in his child’s educational needs when Mother showed a lack of

       commitment in assisting their child, who was struggling academically, with her

       schoolwork at home. Mother told the Court Appointed Special Advocate that

       the school would take care of her child’s academic difficulties. Id. However,

       Father worked with the child on her schoolwork when she stayed for the



       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 15 of 24
       weekend and she usually scored better on her spelling tests because they studied

       together. Id. There are no comparable circumstances in this case.


[24]   Here, there was no egregious custody violation nor was the children’s welfare at

       stake. Pierce, 620 N.E. 2d at 730. We must conclude that the trial court relied

       upon an incorrect legal standard and, thus, clearly erred when it found that

       there had been a substantial change in circumstances warranting modification

       of custody pursuant to Indiana Code § 31-17-2-8. Kappel, 979 N.E.2d at 651-52.

       Accordingly, we reverse the trial court’s modification of custody.


                                       Modification of Parenting Time

[25]   Mother sought not only modification of custody, but also modification of

       parenting time. When a custodial parent seeks to modify a parenting time

       order, as Mother did here, she must show that the modification would serve the

       best interest of the children. I.C. § 31-17-4-2. “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.” Id. Moreover, “[d]espite the statute’s use of

       the word ‘might,’ for over twenty-five years Indiana courts have interpreted the

       statute to require evidence that parenting time ‘would’ (not ‘might’) endanger or

       impair the physical or mental health of the child.”3 Patton v. Patton, 48 N.E.3d




       3
         Thus, Indiana law requires a showing that there “would be” harm to the children from the original
       parenting time order, which Mother has not demonstrated here.

       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016        Page 16 of 24
       17, 21 (Ind. Ct. App. 2015) (quoting Perkinson v. Perkinson, 989 N.E.2d 758, 763

       (Ind. 2013)). Thus, “a parent’s visitation rights shall not be restricted unless the

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

       significantly impair his emotional development.” Hartzell v. Norman T.L., 629

       N.E.2d 1292, 1295 (Ind. Ct. App. 1994) (emphasis original).


[26]   Here, the trial court did not make any finding that Father’s visitation pursuant

       to the original parenting time order would endanger the children’s physical

       health or significantly impair their emotional development, and no evidence

       was presented to support such a finding. Therefore, the trial court committed

       clear error in modifying Father’s parenting time with the children.


[27]   The dissent would hold that the trial court’s reduction of Father’s parenting

       time to the minimum contained in the parenting guidelines was not a

       “restriction” of his parenting time pursuant to Indiana Code Section 31-17-4-2,

       citing Clary-Ghosh v. Ghosh, 26 N.E.3d 986, 991 (Ind. Ct. App. 2015), trans.

       denied. However, that case does not cite any other Indiana case that supports

       that unique reading of the statute. Rather, Indiana cases have consistently held

       that a trial court is required to enforce a parenting time order, even if the order

       allows parenting time above the miminum required under the guidelines, in the

       absence of any finding that parenting time would endanger or significantly impair

       the child. See, e.g., Williamson v. Creamer, 722 N.E.2d 863, 866 (Ind. Ct. App.

       2000) (quoting Hartzell, 629 N.E.2d at 1295); see also Patton, 48 N.E.3d at 21.

       Thus, under long-standing Indiana case law, a parenting time order—even one

       in excess of the minimum parenting time allowed under the guidelines—cannot

       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 17 of 24
       be changed unless there is a finding that the parenting time allowed under the

       order would endanger the child’s physical health or significantly impair his

       emotional development. Hartzell, 629 N.E.2d at 1295.


[28]   Affirmed in part and reversed in part.


       Robb, J., concurs.


       Crone, J., concurs in part and dissents in part with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 18 of 24
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       In re the Marriage of:                                  Court of Appeals Case No.
                                                               17A03-1512-DR-2170
       David A. Anzelmo,
       Appellant-Respondent,

               v.

       Elizabeth M. Anzelmo,
       Appellee-Petitioner.




       Crone, Judge, concurring in part and dissenting in part.


[29]   I agree with my colleagues that the trial court did not abuse its discretion in

       denying Father’s motion to continue, and therefore I concur as to that issue. As

       to the custody issue, however, I respectfully dissent.


[30]   “[I]n custody disputes, the trial court is often called upon to make Solomon-like

       decisions in complex and sensitive matters. The trial court is in a position to

       see the parties, observe their conduct and demeanor, and hear their testimony;

       therefore, its decision receives considerable deference in an appellate court.”

       Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App. 2002) (citations and

       quotation marks omitted), trans. denied. “Custody modification lies within the
       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 19 of 24
       sound discretion of the trial court, and the decision will be reversed only upon a

       showing of manifest abuse of discretion. Such an abuse occurs when the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court.” L.C. v. T.M., 996 N.E.2d 403, 407 (Ind. Ct.

       App. 2013) (citation omitted). Modifications of parenting time are also

       reviewed for abuse of discretion. Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind.

       Ct. App. 2012). We consider only the evidence favorable to the judgment and

       the inferences flowing therefrom. Id.


[31]   With respect to both custody and parenting time, trial courts are uniquely

       positioned to observe which arrangements work and which do not. In my view,

       they should be given great latitude to craft proactive solutions in order to

       protect the best interests of the children involved. Trial courts should not be

       forced to wait until children suffer actual harm before they can take steps to

       resolve disagreements between the parties.


[32]   Pursuant to Indiana Code Section 31-17-2-21, a court may not modify a child

       custody order unless the modification is in the child’s best interests and there is

       a substantial change in one or more of the factors that the court may consider

       under Indiana Code Section 31-17-2-8. That statute sets forth a nonexhaustive

       list, stating that the court “shall consider all relevant factors, including” the eight

       factors mentioned in the majority’s analysis. Ind. Code § 31-17-2-8 (emphases

       added). The trial court found that the communication between Mother and

       Father had “deteriorated … to the point where it is largely ineffective between

       the two parties[.]” Appellant’s App. at 22. The majority characterizes this as a

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       “mutual failure to cooperate” and concludes that it “cannot provide a basis for

       changing legal custody from joint solely to Mother.” Slip op. at 14. I

       respectfully disagree on both counts.


[33]   The record strongly suggests that Father bore the primary responsibility for the

       deterioration in communication. The court found that Father “knowingly,

       willfully, and intentionally” refused to pay child support and reimburse Mother

       for the children’s extracurricular activity expenses, which undoubtedly

       poisoned the well and prompted Mother to file the March 19 Rule to Show

       Cause. Appellant’s App. at 20. Also, Mother testified that Father was

       repeatedly late for parenting exchanges, refused to take the children to their

       extracurricular activities, refused to allow her to schedule the children’s medical

       appointments during his parenting time, and failed to help the children

       complete their homework assignments.


[34]   More important, Mother testified that she never calls Father “because it always

       ends up in a confrontation” and that she could not “communicate those major

       issues of [her] children, specifically issues regarding their medical decisions or

       educational decisions with [Father.]” Tr. at 51. Indiana Code Section 31-9-2-

       67 provides that persons awarded joint legal custody “will share authority and

       responsibility for the major decisions concerning the child's upbringing,

       including the child’s education, health care, and religious training.” Due to the

       significant deterioration in the parties’ ability to discuss major decisions

       concerning the children’s upbringing, the joint legal custody arrangement had

       essentially become unworkable and therefore was no longer in the children’s

       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 21 of 24
       best interests. The parties had tried it, it did not work, and the trial court, in my

       opinion, appropriately remedied the situation.


[35]   Even if the deterioration in communication between Mother and Father could

       fairly be described as a “mutual failure to cooperate,” Pierce does not prohibit a

       modification of joint legal custody on that basis. Notwithstanding the dicta

       quoted by the majority, the upshot of Pierce’s holding is that a parent with

       primary physical custody and joint legal custody may not be rewarded for being

       uncooperative by asking for and receiving sole legal custody based on the lack

       of cooperation. See Pierce, 620 N.E.2d at 731 (“A parent may not sow seeds of

       discord and reap improved custody rights.”). That is not the factual scenario in

       this case. It is important to note that “joint custody” may be either joint legal

       custody or joint physical custody and that the difference between modifying

       joint legal custody and physical custody is a subtle yet important distinction. 4

       When the parties in a joint legal custody situation are mutually responsible for a

       failure to cooperate on major decisions concerning the children’s upbringing,

       the trial court must decide which parent should be awarded sole legal custody



       4
         See Pierce, 620 N.E.2d at 731 (“The trial court found that [father] behaved in such way as to deprive
       [mother] of an opportunity to materially participate in the children’s upbringing. If the reasonableness of joint
       custody were not at issue, this course of conduct would not support a change in custody.”) (emphasis added). The
       majority’s interpretation of Pierce may be due to the imprecise language and internal inconsistencies in the
       Pierce court’s analysis or the fact that the custody modification statute in effect when Pierce was decided stated
       that a court could modify a custody arrangement only upon “a showing of changed circumstances so
       substantial and continuing as to make the existing custody order unreasonable.” Ind. Code § 3-1-11.5-22(d)
       (1993). The legislature removed the unreasonableness requirement in 1994, and thus “a petitioner is no
       longer required to show that an existing custody order is unreasonable before a court will modify it.” Julie C.,
       924 N.E.2d at 1258. Regardless, the decision of whether a deterioration in parental communication is
       sufficiently “egregious as to adversely affect the child’s welfare,” as the majority puts it, is a call better left to
       the trial court than the Court of Appeals.

       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016                 Page 22 of 24
       so that those decisions will no longer be subject to intractable disputes. To

       allow such uncooperativeness to continue would be detrimental to the

       children’s best interests. Assuming for argument’s sake that Mother and Father

       were mutually responsible for the deterioration in communication, I cannot

       conclude that the trial court abused its discretion in awarding sole legal custody

       to Mother based on the record before us.


[36]   As for the trial court’s modification of Father’s parenting time, Indiana Code

       Section 31-17-4-2 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.


       Father claims that the trial court’s reduction of his parenting time to the

       standard amount provided by the Indiana Parenting Time Guidelines

       amounted to a restriction of his parenting time rights and that the trial court

       erred in restricting his rights without making a finding of endangerment or

       impairment. I disagree. See Clary-Ghosh, 26 N.E.3d at 991 (holding that

       reduction of parenting time to standard amount described in Guidelines did not




       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016   Page 23 of 24
       amount to restriction of parenting time rights for purposes of Ind. Code § 31-17-

       4-2).5


[37]   Further, I believe that the trial court did not abuse its discretion in reducing

       Father’s parenting time, given Mother’s testimony that she had to pick up

       Father’s slack in several critical areas. The alternative of requiring actual

       damage or harm to the children prior to remedying this situation does not make

       sense. Father has the standard amount of parenting time allowed by the

       Guidelines. Parenting time is often a fluid situation that requires occasional

       tweaking, and awarding Mother more time was in the children’s best interests

       and well within the trial court’s discretion. I would affirm the trial court in all

       respects.




       5
         The majority states that Clary-Ghosh “does not cite any other Indiana case that supports that unique reading
       of the statute.” Slip op. at 17. In my view, this neither supports nor detracts from the logic of the reasoning
       used by the Clary-Ghosh court. While not dispositive, our supreme court had an opportunity to correct the
       Clary-Ghosh court’s alleged misinterpretation of Indiana Code Section 31-17-4-2 on transfer but declined to do
       so. As for the cases cited by the majority, it bears mentioning that both Hartzell and Williamson were decided
       before the Indiana Parenting Time Guidelines became effective in 2001 and that Patton did not involve the
       reduction of parenting time to the standard amount described in the Guidelines. See Patton, 48 N.E.3d at 21
       (denial of request for unsupervised visitation).

       Court of Appeals of Indiana | Memorandum Decision 17A03-1512-DR-2170 | August 31, 2016           Page 24 of 24
