MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Dec 18 2018, 8:53 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
Michael H. Michmerhuizen
Barrett McNagny LLP
Fort Wayne, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of                                   December 18, 2018

J.G.H.,                                                 Court of Appeals Case No.
                                                        18A-DC-1444
Appellant-Respondent,
                                                        Appeal from the Adams Circuit
        v.                                              Court
                                                        The Honorable Chad E. Kukelhan,
K.R.K.,                                                 Judge
                                                        Trial Court Cause No.
Appellee-Petitioner
                                                        01C01-1711-DC-48



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018              Page 1 of 12
                                             Case Summary
[1]   As part of an amended decree dissolving the marriage of J.G.H. (“Father”) and

      K.R.K. (“Mother”), the trial court found that Father was entitled to no

      parenting time with the couple’s two-year-old son (“Child”). Father appeals,

      claiming that the trial court erred in failing to specify a factual basis for denying

      his parenting time rights and that the evidence does not support such a denial.

      He also challenges the court’s award of certain attorney’s fees to Mother.

      Finding no reversible error in the specificity of the findings on parenting time or

      in the trial court’s award of attorney’s fees, we affirm on those issues.

      However, concluding that the trial court’s decision to deny Father parenting

      time is contrary to law, we reverse and remand.


                                 Facts and Procedural History
[2]   Father and Mother were married in January 2016. They separated in June

      2016, when Child was an infant. Father saw Child three or four times

      thereafter. In November 2017, Wife filed a petition for marital dissolution. She

      asked that Father not be granted any parenting time, citing an incident during

      her pregnancy with Child in which Father struck her head, pulled her hair, and

      dragged her into a bedroom in the presence of a three-year-old child. As a

      result of the incident, Mother obtained a no-contact order, and Father was

      charged with domestic battery and invasion of privacy. Father pled guilty and

      served eight months in the Department of Correction (“DOC”). After his

      release, he was legally prevented from contacting Mother to request time with



      Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018   Page 2 of 12
      Child. He attempted to establish contact with Mother’s relatives through social

      media but was unsuccessful.


[3]   On April 24, 2018, the trial court conducted a final hearing on Mother’s

      dissolution petition. A week later, the court issued a dissolution decree that

      included provisions setting Father’s weekly child support obligation at $80 and

      “order[ing] that [Father] shall have no parenting time with [Child].”

      Appellant’s App. Vol. 2 at 8.


[4]   On May 29, 2018, Father filed a motion to correct error, challenging the

      sufficiency of the trial court’s finding on the issue of parenting time and the

      sufficiency of evidence to support the denial of parenting time. Mother filed a

      statement in opposition to Father’s motion as well as a proposed amended

      dissolution decree and a proposed order on the motion to correct error. The

      trial court adopted both of Mother’s proposed orders and denied Father’s

      motion to correct error. The court awarded Mother $385 in attorney’s fees

      attributable to her opposition to Father’s motion to correct error. Father now

      appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision

       Section 1 – The trial court’s amended findings on the issue of
             Father’s parenting time are sufficiently specific.
[5]   Father first asserts that the trial court erred by failing to make specific findings

      on the issue of his parenting time. At the outset, we note that Mother has failed

      to file an appellee’s brief. When an appellee fails to submit a brief, we will not

      Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018   Page 3 of 12
      undertake the burden of developing her arguments. Meisberger v. Bishop, 15

      N.E.3d 653, 656 (Ind. Ct. App. 2014). Rather, we apply a less stringent

      standard of review and will reverse if the appellant establishes prima facie error.

      Id. Prima facie error is error “at first sight, on first appearance, or on the face of

      it.” Solms v. Solms, 982 N.E.2d 1, 2 (Ind. Ct. App. 2012).


[6]   Indiana Code Section 31-17-4-2 reads, in relevant part, “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.” The trial court must make specific findings to

      support its parenting time order. Perkinson v. Perkinson, 989 N.E.2d 758, 765

      (Ind. 2013). This means that the court must give a sufficient written

      explanation indicating why parenting time is being denied. Rickman v. Rickman,

      993 N.E.2d 1166, 1169 (Ind. Ct. App. 2013). In other words, “a factual basis

      and a finding as to potential endangerment of [the child’s] physical health or

      safety or significant impairment of his emotional development are necessary.”

      Id.


[7]   Here, the parties do not dispute that the parenting time finding in the trial

      court’s original dissolution decree was not sufficiently specific. See Appellant’s

      App. Vol. 2 at 8 (“The Court orders that [Father] shall have no parenting time

      with [Child].”). The court’s amended decree, issued after Father filed his




      Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018   Page 4 of 12
      motion to correct error, includes the following findings relevant to his parenting

      time:1


               11. The Court finds that Father was convicted of Domestic
               Battery in the Presence of a Child as a Level 6 Felony on
               February 27, 2017, in the Wells Circuit Court, Cause Number
               90C01-1606-F5-00024, and that Mother was the victim of the
               battery.


               12. The Court also finds that Father is currently on parole for
               said conviction and that a No Contact Order is in effect in that
               Cause, preventing Father from contacting Mother, until the
               completion of Father’s sentence.


               13. The Court further finds that Father has not seen or had any
               contact with the child since November of 2016.


               14. Based on the testimony presented, the Court finds that the
               exercise of parenting time by Father would endanger the child’s
               physical health and significantly impair the child’s emotional
               development.


               15. The Court orders that Father shall have no parenting time
               with the parties’ minor child.


      Id. at 11.


[8]   In evaluating these findings, we believe them to be sufficiently specific to

      indicate the trial court’s reasons for its decision to deny Father parenting time. 2



      1
        The trial court’s findings include different designations for Father and Mother. For consistency’s sake, we
      refer to them as Father and Mother.

      Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018                 Page 5 of 12
       That said, we now turn to whether the trial court’s ultimate decision to deny

       parenting time is contrary to law.


       Section 2 – The trial court’s decision to deny Father parenting
                    time with Child is contrary to law.
[9]    Father contends that even if the findings are sufficiently specific on the issue of

       parenting time, the trial court’s ultimate decision to deny him parenting time is

       contrary to law. Here, Father’s appeal comes to us following the denial of his

       motion to correct error. Generally, we review both parenting time decisions

       and denials of motions to correct error using an abuse of discretion standard.

       Meisberger, 15 N.E.3d at 656. We neither reweigh evidence nor reassess witness

       credibility. Id. We reverse only where the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before it or where the

       court errs as a matter of law. Id.


[10]   Where, as here, a trial court has issued findings of fact and conclusions thereon,

       we apply a two-tiered standard of review, determining first whether the

       evidence supports the findings and second whether the findings support the

       judgment. Sexton v. Sexton, 970 N.E.2d 707, 710 (Ind. Ct. App. 2012), trans.

       denied. We will not set aside a trial court’s findings unless they are clearly

       erroneous, meaning that our review of the record leaves us firmly convinced



       2
         Father criticizes the amended findings because the trial court adopted Mother’s proposed findings
       verbatim. A trial court’s verbatim adoption of a party’s proposed findings is not prohibited. Country
       Contractors, Inc. v. A Westside Storage of Indianapolis, Inc., 4 N.E.3d 677, 694 (Ind. Ct. App. 2014). “Although
       we by no means encourage the wholesale adoption of a party’s proposed findings and conclusions, the critical
       inquiry is whether such findings, as adopted by the court, are clearly erroneous.” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018                  Page 6 of 12
       that a mistake has been made. Id. We give due regard to the trial court’s

       opportunity to assess the credibility of witnesses and therefore consider only the

       evidence and reasonable inferences favorable to the judgment without

       reweighing the evidence or assessing witness credibility. Nelson v. Nelson, 10

       N.E.3d 1283, 1285 (Ind. Ct. App. 2014). We do not defer to the trial court’s

       conclusions of law and will find clear error if the court has applied an incorrect

       legal standard. Sexton, 970 N.E.2d at 710. Again, we note that because Mother

       has not filed an appellee’s brief, Father need only establish prima facie error.

       Meisberger, 15 N.E.3d at 656.


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

       the best interests of the child.” Id. In considering best interests, our courts and

       our legislature have recognized that the right of a noncustodial parent to visit

       his or her children is a “sacred and precious privilege.” Hatmaker v. Hatmaker,

       998 N.E.2d 758, 761 (Ind. Ct. App. 2013) (quoting Appolon v. Faught, 796

       N.E.2d 297, 300 (Ind. Ct. App. 2003)). “Extraordinary circumstances must

       exist to deny parenting time to a parent, which necessarily denies the same to

       the child.” Perkinson, 989 N.E.2d at 765.


[12]   As previously stated, our legislature has expressed a presumption in favor of

       parenting time by requiring that “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.” Ind. Code § 31-17-4-2 (emphases added). “Even though the

       statute uses the word ‘might,’ this Court has previously interpreted the language

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018   Page 7 of 12
       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) (citing Stewart v. Stewart,

       521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied).


[13]   Similarly, the Indiana Parenting Time Guidelines stress that the child has the

       right to parenting time. Ind. Parenting Guideline 1(E)(5). Thus, our analysis

       must take into account the rights of both Father and Child to a mutual

       relationship. See Perkinson, 989 N.E.2d at 764 (“Not only does a noncustodial

       parent have a presumed right of parenting time, but the child has the correlative

       right to receive parenting time from the noncustodial parent because it is

       presumed to be in the child’s best interest.”)


[14]   In evaluating the egregiousness of Father’s incident of violence against Mother

       in light of the presumption in favor of parenting time, we find instructive the

       case of D.B., where the mother was awarded physical custody of the couple’s

       teenage children following an extremely contentious divorce. 913 N.E.2d at

       1272-73. During the father’s parenting time, he and the children often exhibited

       volatile behavior toward each other, e.g., food throwing, name calling, and

       accusations of father breaking a windshield and throwing one of the children

       into a movie theater seat. Id. at 1273. After the movie theater incident, the

       visits ceased. Eventually, after several cross-accusations between the father and

       mother, the father filed a contempt petition against the mother and requested

       mid-week parenting time. Id. Relying on testimony from the guardian ad litem

       concerning the children’s wishes and ineffective counseling sessions, the trial

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018   Page 8 of 12
       court eliminated the father’s parenting time altogether. Id. The father

       appealed, and another panel of this Court reversed and recommended

       supervised visitation, reasoning that the past interaction between the father and

       the children “does not approach the egregious circumstances in which we have

       previously found that parenting time may be terminated, such as when a parent

       sexually molests a child.” Id. at 1275. See, e.g., Duncan v. Duncan, 843 N.E.2d

       966, 972 (Ind. Ct. App. 2006) (visitation suspended “for a time” where

       substantiated evidence showed that father molested one child, threatened

       another with gun, showed no remorse, and refused counseling), trans. denied; cf.

       K.B. v. S.B., 415 N.E.2d 749, 756 (Ind. Ct. App. 1981) (court permitted

       parenting time where evidence of molestation by father was conflicting).


[15]   In its amended order, the trial court in this case identified three reasons for its

       decision to deny Father any parenting time: (1) that he was convicted of

       domestic battery against Mother; (2) that he is on parole and under a no-contact

       order as to Mother; and (3) that he has not had contact with Child for a year

       and a half. With respect to domestic battery, the record reflects a single

       incident in which Father struck Mother on the back of the head, pulled her hair,

       and dragged her into a bedroom. This incident occurred before Child was born,

       when Mother was pregnant with him. Mother testified that she had never seen

       Father be physically violent toward any other people. Tr. Vol. 2 at 8-9; see also

       id. at 19 (Father has four other children and is active in their lives). As for

       Father’s lack of contact with Child, the record shows that he visited Child three

       or four times before he was incarcerated. He pled guilty to domestic battery


       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018   Page 9 of 12
       and invasion of privacy, served his time in the DOC, and was released on

       parole. At that time, the no-contact order as to Mother was still in place. Child,

       still a toddler, was in Mother’s custody, meaning that Mother was the

       gatekeeper through which to contact Child. Thus, from a practical standpoint,

       contacting Child meant violating the protective order, which Father did not do.

       Rather, Father attempted to establish contact with Mother’s relatives through

       social media, but they blocked him. In short, the isolated incident that

       precipitated Father’s domestic battery conviction did not endanger Child, and

       the no-contact order has hindered Father in his efforts to contact Child.3


[16]   Moreover, nothing in the amended order reflects the trial court’s consideration

       and rejection of alternative options such as supervised parenting time with

       Child or contact by phone, mail, Skype, or other means of communication.

       Noncustodial parents convicted of far more serious offenses have nevertheless

       been afforded parenting time by phone or mail. See, e.g., Meisberger, 15 N.E.3d

       at 654-55 (father served time for murder and theft, was released to probation,

       fathered a child, violated probation, and was remanded to the DOC).


[17]   Simply put, even though the trial court’s findings are specific enough to explain

       its reasons concerning parenting time, the court’s ultimate decision to deny

       Father parenting time altogether is contrary to Indiana case law, statutory law,

       and Parenting Time Guidelines. As such, we conclude that Father has



       3
         At the hearing, Father admitted to having prior convictions for invasion of privacy and marijuana dealing,
       but the trial court did not reference these in its amended order and did not rely on them in making its
       parenting time determination.

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018              Page 10 of 12
       established prima facie error in the trial court’s judgment. Consequently, we

       reverse and remand for further proceedings consistent with this decision.


         Section 3 – Father has failed to establish prima facie error in
                          the trial court’s fee award.
[18]   Father also challenges Mother’s $385 attorney’s fee award attributable to her

       response in opposition to his motion to correct error. A trial court has broad

       discretion in awarding attorney’s fees, and we reverse only where the court’s

       award is clearly against the logic and effect of the facts and circumstances

       before it. Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App. 2015), trans. denied

       (2016). The purpose of the award of attorney’s fees is to ensure legal

       representation for a party in a dissolution proceeding who might not otherwise

       be able to afford an attorney. Hartley v. Hartley, 862 N.E.2d 274, 286-87 (Ind.

       Ct. App. 2007).


[19]   Here, Father posits, without citation to authority, that because Mother

       conceded that the trial court’s initial findings were insufficient concerning

       parenting time, she is not entitled to attorney’s fees incurred in opposing his

       motion to correct error. Thus, he alleges, an attorney’s fee award is improper

       because his motion to correct error was admittedly “meritorious” in this

       respect. Appellant’s Br. at 10. In making this argument, he appears to conflate

       attorney’s fee awards for bad faith or frivolous actions, see Ind. Code § 34-52-1-

       1, with attorney’s fee awards in marital dissolution cases. See Ind. Code § 31-

       15-10-1 (trial court may order party to marital dissolution to pay reasonable

       amount for cost to other party to maintain or defend any proceeding connected

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018   Page 11 of 12
       with the dissolution and for attorney’s fees for legal services provided); see also

       Barton, 47 N.E.3d at 377 (factors trial court must consider when evaluating

       attorney’s fees requests in marital dissolution proceedings include the parties’

       relative resources, economic condition, employability, and earnings potential).


[20]   Father has failed to discuss or even cite the applicable statute or any cases

       interpreting the statute. As such, he has failed to establish prima facie error in

       the trial court’s fee award. Accordingly, we affirm it.


[21]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-1444 | December 18, 2018   Page 12 of 12
