MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jun 13 2017, 7:10 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Darlene R. Seymour                                       William P. Means
Ciyou & Dixon, P.C.                                      Roberts Means, LLC
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                   June 13, 2017

J.W.,                                                    Court of Appeals Case No.
                                                         29A02-1612-DR-2869
Appellant-Petitioner,
                                                         Appeal from the Hamilton
        v.                                               Superior Court
                                                         The Honorable David K. Najjar,
M.W.,                                                    Magistrate
                                                         Trial Court Cause No.
Appellee-Respondent
                                                         29D01-1006-DR-1444



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1612-DR-2869 | June 13, 2017           Page 1 of 11
[1]   J.W. (Father) appeals the trial court’s order modifying the child custody

      arrangement between Father and his ex-wife, M.W. (Mother). Father argues

      that the trial court erred in two respects: (1) by awarding sole legal custody of

      their children to Mother; and (2) by ordering that Father must get Mother’s

      permission before enrolling the children in extracurricular activities, even if

      those activities take place during his parenting time. Finding that the trial court

      did not err by naming Mother sole legal custodian but that it is improper to

      require Father to obtain Mother’s consent to the children’s extracurricular

      activities when they are with Father, we affirm in part and reverse in part.


                                                     Facts
[2]   Two children were born of the parents’ marriage: E.W., born in November

      2006, and M.W., born in February 2009. Father and Mother were divorced on

      January 14, 2011. Pursuant to the decree of dissolution, Mother was granted

      primary physical and sole legal custody of the children; Father was awarded

      parenting time pursuant to the Indiana Parenting Time Guidelines. On May 9,

      2013, Father filed a petition to modify custody. The parties participated in

      mediation and, on January 28, 2014, the trial court approved a mediated

      agreement. The mediated agreement provided that Mother and Father would

      share joint legal custody of the children and that Father would have additional

      overnights with the children on Wednesdays.


[3]   At some point, communication between the parents began to deteriorate and

      they became unable to agree about issues such as the children’s extracurricular


      Court of Appeals of Indiana | Memorandum Decision 29A02-1612-DR-2869 | June 13, 2017   Page 2 of 11
      activities. The children are heavily involved in dance classes and competitions,

      but Father wants them to be exposed to other activities. He enjoys taking them

      to tennis and golf lessons at his country club, but feels compelled to take them

      to dance instead during his parenting time. Additionally, Father was reluctant

      to provide Mother with contact information when the girls are not at his home

      during his parenting time.


[4]   Over the course of 2015 and 2016, the parties filed many pleadings with the trial

      court. Mother filed multiple motions for contempt, a motion to modify child

      support, and a motion to determine the children’s extracurricular activities.

      Father filed a petition to modify parenting time, and Mother then filed a

      counter-petition to modify parenting time and custody. The trial court held a

      hearing on all pending motions on April 14 and July 18, 2016. On August 5,

      2016, the trial court issued an order on all pending matters. In relevant part, the

      trial court found and held as follows:

              12.      The Court also finds that [Father] is in contempt of court
                       for failing to provide specific contact information to
                       [Mother] when the children are at a sleepover. The Court
                       finds that the Mediated Agreed Entry is specific with
                       respect to the information to be delivered to [Mother]
                       whenever the children are attending a sleepover and that
                       [Father] has willfully failed to deliver such information.


                                                      ***


              19.      As the Court has noted above, the parties have great
                       difficulty in communicating effectively with one another.
                       The Court also finds that the parties are not co-parenting
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                 in an effective manner as [Father] has pursued extra-
                 curricular activities for the children unilaterally and has
                 refused to communicate with [Mother] on certain basic
                 aspects of co-parenting. The most notable example of this
                 is [Father’s] refusal to provide [Mother] with contact
                 information for individuals with whom the children would
                 be spending the night.


        20.      The Court finds, therefore, that it is in the best interests of
                 the children that the parties not exercise joint legal
                 custody, and that [Mother] be awarded sole legal custody
                 of the children.


        21.      The Court finds that it is in the best interests of the
                 children that the parties communicate as much as possible.
                 To this end, [Mother] is ordered to communicate with
                 [Father] regarding important events in the children’s lives,
                 particularly those items which require decisions as to the
                 children’s health, education, religious upbringing, and
                 welfare. To the extent that the parties can agree on those
                 decisions, they should do so. To the extent that the parties
                 cannot agree, after making a good faith attempt to agree,
                 [Mother] shall make the decision. [Father] shall not
                 unilaterally make decisions for the children, and should
                 not sign the children up for extra-curricular activities
                 without the consent of [Mother].


                                                ***


        27.      . . . Should [Father] enroll the children in any activity
                 without [Mother’s] consent, [Father] shall not be entitled
                 to any credit for [any] expenses he incurs for such activity,
                 nor shall [Mother] be obligated in any way to contribute
                 towards the expenses for the activity.


Court of Appeals of Indiana | Memorandum Decision 29A02-1612-DR-2869 | June 13, 2017   Page 4 of 11
      Appellant’s App. Vol. II p. 27-29.


[5]   At some point, the parties realized that there was a conflict in paragraphs

      twenty-one and twenty-seven of the trial court’s order. The parties brought that

      to the trial court’s attention and, on November 23, 2016, the trial court issued

      an order clarifying its prior order:


              4.       To the extent any conflict between the two noted
                       paragraphs exists or is perceive[d] to exist, paragraph 21 of
                       the Order controls and Father must obtain Mother’s
                       consent prior to enrolling the parties’ children in
                       extracurricular activities, including activities during
                       Father’s parenting time.


              5.       Paragraph 27 of the Order is not intended to convey that
                       Father may enroll the children in extracurricular activities
                       without Mother’s consent.


      Appealed Order p. 2. Father now appeals.


                                   Discussion and Decision
                           I. Modification of Legal Custody
[6]   Father argues that the trial court erred by modifying the parties’ legal custody

      arrangement such that Mother has sole legal custody of the children. When

      considering a modification from joint legal custody to sole legal custody, we

      must determine whether there has been a substantial change in one or more of

      the factors listed in Indiana Code section 31-17-2-15, in addition to considering




      Court of Appeals of Indiana | Memorandum Decision 29A02-1612-DR-2869 | June 13, 2017   Page 5 of 11
any substantial change to the factors in Indiana Code section 31-17-2-8,1 as is

typically necessary for physical custody modifications. Milcherska v. Hoersman,

56 N.E.3d 634, 641 (Ind. Ct. App. 2016). Indiana Code section 31-17-2-15

provides that in evaluating a legal custody arrangement, the court shall consider

the following factors:

           (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;




1
    The court shall determine custody and enter a custody order in accordance with the best interests of
    the child. In determining the best interests of the child, there is no presumption favoring either
    parent. The court shall consider all relevant factors, including the following:
    (1)    The age and sex of the child.
    (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, and if the evidence is
           sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.



Court of Appeals of Indiana | Memorandum Decision 29A02-1612-DR-2869 | June 13, 2017                       Page 6 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)      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.


This Court recently explained that the second factor above is significant:


        Our courts have reiterated that factor (2), whether the parents are
        willing and able to cooperate in advancing the child’s welfare, is
        of particular importance in making legal custody determinations.
        Julie C. [v. Andrew C.], 924 N.E.2d [1249,] 1260 [Ind. Ct. App.
        2010)]; see also Carmichael [v. Siegel], 754 N.E.2d [619,] 635 [Ind.
        Ct. App. 2001] (“One of the key factors to consider when
        determining whether joint legal custody is appropriate is whether
        the persons awarded joint custody are willing and able to
        communicate and cooperate in advancing the child's welfare.”).
        Where “the parties have made child-rearing a battleground, then
        joint custody is not appropriate.” Periquet–Febres v. Febres, 659
        N.E.2d 602, 605 (Ind. Ct. App. 1995). “Indeed, to award joint
        legal custody to individually capable parents who cannot work
        together is tantamount to the proverbial folly of cutting the baby
        in half in order to effect a fair distribution of the child to

Court of Appeals of Indiana | Memorandum Decision 29A02-1612-DR-2869 | June 13, 2017   Page 7 of 11
              competing parents.” Swadner v. Swadner, 897 N.E.2d 966, 974
              (Ind. Ct. App. 2008) (quotation omitted).


      Milcherska, 56 N.E.3d at 641-42.


[7]   We afford trial courts a great deal of deference in family law matters

              because of their unique, direct interactions with the parties face-
              to-face, often over an extended period of time. Thus enabled to
              access credibility and character through both factual testimony
              and intuitive discernment, our trial judges are in a superior
              position to ascertain information and apply common sense,
              particularly in the determination of the best interests of the
              involved children.


[8]   Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). In reviewing a trial court’s order

      in a family law matter, we will neither reweigh evidence nor reassess witness

      credibility, and will view the evidence in the light most favorable to the

      judgment. D.C. v. J.A.C., 977 N.E.2d 951, 954 (Ind. 2012).


[9]   Here, the trial court found that the parents are no longer able to work together

      or communicate effectively. Evidence in the record supporting this finding

      includes:


           Father has failed to provide Mother with the right of first refusal when he
            is unable to care for the children during his parenting time. Tr. p. 62-63.
           Father has refused to provide Mother with the host name and telephone
            number of the location where the children were staying if they were not
            with Father during his parenting time. Id. at 200-01.
           Father and Mother are unable to agree about the children’s
            extracurricular activities. Specifically, Mother wants to increase the
            amount of time the children spend dancing, and Father wants them to

      Court of Appeals of Indiana | Memorandum Decision 29A02-1612-DR-2869 | June 13, 2017   Page 8 of 11
                branch out to other activities. Despite many efforts, the parties continue
                to disagree. Id. at 165-66, 183, 225-27.

       Based on this evidence, the trial court found that the parents were no longer

       communicating or co-parenting effectively and, as a result, it was in the best

       interests of the children that Mother be awarded sole legal custody. We find

       that this evidence supports the trial court’s conclusions that there was a

       substantial change in the statutory factor regarding the parents’ communication

       and cooperation and that the modification was in the children’s best interests.

       The trial court had the benefit of assessing the witnesses and the situation in a

       way that we cannot do based solely on a paper record. We cannot and will not

       second-guess its carefully considered decision, and decline to reverse on this

       issue.


                                II. Extracurricular Activities
[10]   Father next argues that, even if the trial court did not err by naming Mother the

       children’s sole legal custodian, it erred by ordering that Father must obtain

       Mother’s consent to enroll the children in extracurricular activities, even if

       those activities occur during his parenting time. Father argues that this order

       impermissibly infringes on his constitutional rights as a parent. He insists that

       even if Mother has sole legal custody, “she should not have the authority to

       control what activities Father engaged in with the children during his parenting

       time.” Appellant’s Br. p. 13.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1612-DR-2869 | June 13, 2017   Page 9 of 11
[11]   Initially, we note that Mother acknowledges that her rights as legal custodian of

       the children do not extend to small matters such as extracurricular activities:

       “Mother agrees with Father that ‘legal custody’ relates to major decisions

       regarding a child’s upbringing, including education, health care, and religion.”

       Appellee’s Br. p. 7. Thus, the order relating to the children’s extracurricular

       activities is a separate “consent requirement . . . based upon issues in [the] area

       of child-related communication.” Id. at 9. We agree that this portion of the

       order should not be analyzed in the context of legal custody, but instead in the

       context of a parent’s right to make unilateral decisions regarding the way in

       which her children spend their time when they are in the care and custody of

       their other parent.


[12]   Here, the trial court found that the parents have difficulty communicating and

       reaching agreements about the children’s extracurricular activities. To solve

       this issue by giving Mother the sole right to consent or refuse, however, goes a

       step too far. Would the trial court require Father to ask Mother’s permission to

       take the children to see a particular movie when they are with him? To take

       them to a particular restaurant? To take them to a sporting event, or a parade,

       or for a hike in a park? We see no meaningful way to distinguish between these

       examples and the example at issue here, namely, Father’s desire to sign the

       children up for golf and/or tennis lessons when they are with him, at his cost,

       causing no interference whatsoever to Mother or her time with them.


[13]   There is no suggestion that the activities in which the children have participated

       when with Father are inappropriate or harmful in any way. He has taken them

       Court of Appeals of Indiana | Memorandum Decision 29A02-1612-DR-2869 | June 13, 2017   Page 10 of 11
       to play tennis and golf, which are perfectly appropriate and beneficial activities

       for children. So long as that is the case, it is inappropriate to require that

       Mother have the right to refuse the way in which the children spend their time

       when they are with Father. Therefore, while we affirm the portion of the order

       naming Mother as the children’s legal custodian, we reverse the portion of the

       order requiring that Father obtain her permission for the children’s

       extracurricular activities when they are with him.


[14]   We strongly encourage these parents to put aside their own issues and learn to

       work together for the sake of their children. If Mother and Father are able to

       agree on the fundamental issues such as education and religion, they should

       find a way to agree about the much smaller issue of extracurricular activities.


[15]   The judgment of the trial court is affirmed in part and reversed in part.


       Barnes, J., and Crone, J., concur.




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