MEMORANDUM DECISION
                                                                       Apr 10 2015, 7:34 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Laurie Baiden Bumb                                        Kelly A. Lonnberg
Bumb & Vowels, LLP                                        Trisha S. Dudlo
Evansville, Indiana                                       Bamberger Foreman Oswald & Hahn,
                                                          LLP
                                                          Evansville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                   April 10, 2015
                                                         Court of Appeals Cause No.
J. D. S.,                                                82A05-1407-DR-331
Appellant-Respondent,                                    Appeal from the Vanderburgh
                                                         Superior Court.
         v.
                                                         The Honorable Mary Margaret
                                                         Lloyd, Judge.
B. S.,                                                   The Honorable J. August Straus,
Appellee-Petitioner.                                     Magistrate.
                                                         Cause No. 82D04-1307-DR-708




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015         Page 1 of 12
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, J.D.S. (Father), appeals the trial court’s Order modifying

      his extended summer parenting time.


[2]   We remand with instructions.


                                                     ISSUE

[3]   Father raises one issue on appeal which we restate as: Whether the trial court

      abused its discretion in modifying Father’s extended summer parenting time.


                           FACTS AND PROCEDURAL HISTORY

[4]   Father and B.S. (Mother) (collectively, Parents) were married on March 17,

      2001. During their marriage, they had two children, S.S., born in September

      2002, and N.S., born in March 2006 (collectively, the Children). In the spring

      of 2011, Parents separated, and Father moved out of the marital home in

      Evansville, Indiana. On December 27, 2013, the trial court entered a Decree of

      Dissolution, which incorporated the Mediated Settlement Agreement

      (Agreement) reached by Parents.


[5]   Pursuant to the Agreement, Mother had primary physical custody of the

      Children and Father would exercise parenting time, but Parents shared joint

      legal custody. Father would have the Children on Father’s Day, on his

      birthday, and on the 4th of July of each year, while Mother would have the

      Children on Mother’s Day and on her birthday. As for the 2013 Christmas

      break, Parents agreed on an elaborate parenting time schedule. However,


      Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 2 of 12
      Parents agreed that the Indiana Parenting Time Guidelines (Guidelines) would

      apply for the 2014 Christmas break.


[6]   When Parents entered into the Agreement, Father had relocated from

      Evansville to Florida. Parents agreed that the Children would remain in

      Evansville and attend a Catholic parochial school. Father agreed that parenting

      time during the school year would be exercised in Indiana. Because Father

      resided in Florida, Parents agreed that they “shall work together, taking into

      consideration [] Father’s work and travel schedule and the [C]hildren’s

      activities to maximize [] Father’s parenting time . . . .” (Appellant’s App. p. 5).

      Distance being a factor, it was agreed that Father would have an extra week of

      parenting time during the summer of each year. Parents also settled that in the

      event Father would relocate to Evansville, Father would have the Children on

      alternate weekends and a mid-week overnight. In addition, Father agreed to

      pay $275.00 per week in child support, but Parents were to equally share the

      costs of the Children’s extracurricular activities.


[7]   Also, Parents decided that they would sell their two homes—2166 and 2162 E.

      Powell Ave. in Evansville, Indiana. 2166 was their marital residence, and

      Parents used 2162 as a rental property. As for the Parents’ matrimonial home,

      Parents agreed that it shall be sold by a realtor of Father’s choosing and the net

      proceeds to be applied to the “Target, Chase and Evansville Teacher Federal

      Credit Union credit card debt, limited to a maximum of $31,000.00” and the

      remainder of the proceeds if any, to be applied to the “IRS debt.” (Appellant’s



      Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 3 of 12
      App. p. 7). As for the Parents’ rental home, it was agreed that any equity or

      liability should be split equally.


[8]   On January 3, 2014, Mother filed a petition requesting Father to be held in

      contempt. The trial court set a hearing for February 28, 2014. On February 7,

      2014, Father filed a notice of intent to relocate from “his current residence in []

      Florida to a nearby residence.” (Appellant’s Br. p. 2). The Chronological Case

      Summary (CCS) shows that on February 28, 2014, at the contempt hearing, the

      trial court ordered that Mother would have the Children “[one] night whenever

      Father has parenting time of [seven] days in a row.” (Appellant’s App. p. 7).

      On March 7, 2014, Father filed a second notice of intent to relocate, this time,

      back to Evansville, Indiana. Three days later, on March 10, Mother filed a

      Verified Petition to Modify and/or Clarify Information for Contempt and

      Objection to Notice of Relocation. In that petition, Mother alleged that Father

      had failed to comply with the most recent order. Mother also claimed that

      Father interfered with the Children’s sporting activities and had failed to pay for

      the Children’s extracurricular activities. In addition, Mother stated that Father

      had failed to list the marital home for sale and his intention to move back to the

      home is inconsistent with his obligation under the Agreement to sell the home

      and apply the proceeds to the marital debt. Also, Mother alleged that Father’s

      income had since improved because Father was able to travel twice a month

      from Florida on alternating weekends, and that his visits, at some point, turned

      into a week-long event. Due to her suspicion that Father’s income had since

      increased, Mother claimed that there should be an adjustment to the existing


      Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 4 of 12
      child support payments. In addition, Mother sought modification from the

      ordered payment of extracurricular expense from the 50/50 ratio, to Father

      being responsible for 75% and Mother for 25%. As for parenting time, Mother

      argued that it should be modified in accordance with the Guidelines because of

      Father’s ability to be in the Evansville area for a lengthy period of time during

      his visits or in the event that Father moves back to Evansville. Lastly, Mother

      argued that Father should not have the Children for more than a week during

      the school year or for more than six weeks at a time during the summer,

      particularly, if Father moved back to Evansville.


[9]   On May 12, 2014, Father filed a motion to dismiss Mother’s petition. Father

      alleged that the Agreement did not set a timeline to list their marital home for

      sale, and he explained that the listing was delayed due to repair and insurance

      issues of which Mother was made aware. As for Mother’s claim that he had

      interfered with the Children’s sporting events, Father stated that he had missed

      one event due to Mother over-scheduling of activities. Father also stated that

      his salary remained unchanged. Father explained that the only reason he was

      able to travel twice a month was due to budget rates on Allegiant Air. In

      addition, Father claimed that Mother had failed to share the Children’s events

      through Google calendar, and due to that omission, Father had missed N.S.’

      first holy communion, a major life event. Lastly, Father claimed that there

      would be no negative impact on the Children if he moved back to their

      unoccupied marital home.




      Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 5 of 12
[10]   The trial court scheduled a hearing on May 14, 2014, to hear Mother’s petition

       and Father’s motion to dismiss. At the commencement of the hearing, Parents

       informed the court that they had reached a partial agreement, which was recited

       in open court. Mother’s counsel expressed that Father was no longer relocating

       to Evansville; however, Parents had agreed that Father would exercise eight

       overnights per month during the school year but not for more than four

       consecutive days at a time. As for the four-day rule, Mother’s counsel stated it

       would not apply to Father’s parenting time over spring break or Christmas

       break. It was stated that Mother was withdrawing her request to modify the

       child support, and costs of the extracurricular activities. Parents also agreed

       that during Father’s visits in Evansville, Father would maintain the Children’s

       extracurricular activities, including scouting, tennis, archery, karate, and S.S.

       service in Church. Lastly, Mother’s counsel stated that Parents settled that the

       Children’s scheduled activities would be posted on Google calendar and that

       Parents would keep each other informed about the Children’s major life events,

       incidents, or accidents.


[11]   A summary hearing on all pending issues ensued. The most important issue on

       appeal is Father’s extra week of summer parenting time. According to the

       December 27, 2013 Agreement, Parents agreed that summer parenting time will

       be in accordance with the Guidelines with one exception: Father was entitled

       to an extra week of parenting time during the summer of each year. Mother

       posited that because Father would be exercising all the parenting time as per the

       Guidelines—alternating weekends and mid-week overnights—Father should


       Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 6 of 12
       not be entitled to the extra week of parenting time in the summer. Father’s

       counsel argued that distance being a factor, he should continue to have his extra

       week of parenting time in the summer. In addition, Father wished to exercise

       his parenting time in one consecutive block whereas Mother wished that it be

       split in several blocks.


[12]   In determining whether Father would continue to have his extended parenting

       time in the summer, the trial court resolved that “there won’t be that bonus

       extra week because [Father] is getting his eight days during the summer . . . or,

       during the month.” (Tr. p. 42). In addition, the trial court’s Order modifying

       custody stated that:

               5. [] Father shall be entitled to parenting time in Evansville for eight
               (8) days per month, consistent with regular parenting time schedule in
               the Indiana Parenting Time Guidelines as if he were residing in
               Indiana. Because he does not reside in Indiana, he may take those
               days no more than four (4) consecutive days at a time. Spring Break,
               Christmas Break and Summer Break parenting time shall not be
               restricted to four-day limit, per [A]greement.

               6. [] Father shall be entitled to one-half (½) of the summer break for
               parenting time pursuant to the Indiana Parenting Time Guidelines.
               He may take his half of the summer in one extended visit rather than
               breaking up his visit. During each party’s block of summer parenting
               time, the other parent is not entitled to interrupt with temporary
               interim parenting time unless agreed upon by the parties. [] Father
               shall return the [C]hildren to [] Mother at least one week prior to the
               beginning of school, to get them ready and back into a routine.

               (Appellant’s App. p. 9).




       Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 7 of 12
[13]   On June 13, 2014, Father filed a motion to correct error, alleging that pursuant

       to their Agreement, he was entitled to an extra week of summer parenting time.

       In addition, Father contended that “Mother’s [c]ounsel added an issue” as to

       the extra week of parenting time, to which Father “did not agree with nor seek

       to address at [the summary] hearing.” (Appellant’s App. p. 38). Father

       maintained that modification of his extra week of parenting time required

       detailed findings by the trial court, which did not ensue. On June 17, 2014, the

       trial court denied Father’s motion.


[14]   Father now appeals. Additional information will be provided as necessary.


                                   DISCUSSION AND DECISION

[15]   When reviewing a trial court’s determination of a parenting time issue, we will

       grant latitude and deference to our trial courts, reversing only when the trial

       court abuses its discretion. Gomez v. Gomez, 887 N.E.2d 977, 983 (Ind. Ct. App.

       2008). No abuse of discretion occurs if there is a rational basis supporting the

       trial court’s determination. Id. We will not reweigh the evidence or judge the

       credibility of the witnesses. Id. In all parenting time issues, courts are required

       to give foremost consideration to the best interest of the child. Id.


[16]   We note a parent’s right as the noncustodial parent to visit his Children is a

       “precious privilege.” Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App.

       2006), trans. denied. Therefore, a noncustodial parent is generally entitled to

       reasonable visitation rights. Id. The trial court’s modification of a parent’s

       parenting time is governed by Indiana Code section 31-17-4-2, which provides:

       Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 8 of 12
               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.1


[17]   The record shows that at the start of the summary hearing, Parents arrived at a

       partial agreement where Father would have regular parenting time during the

       school year—eight overnights per month. However, Mother requested the trial

       court to equally split the summer parenting schedule as recommended by the

       Guidelines. The trial court granted Mother’s wish by stating “there won’t be

       that bonus extra week because [Father] is getting his eight days during the

       summer . . . or, during the month.” (Tr. p. 42). Father maintains that the trial

       court’s “adherence” to the Guidelines so as to modify his summer parenting

       time is flawed and is not a substitute for modifying parenting time. (Appellant’s

       Br. p. 10). According to Father, because the trial court did not issue any finding

       as to whether that modification would serve the Children’s best interest, we

       should remand this cause. We agree. After combing through the record, there

       was no mention as to whether modification of Father’s summer parenting




       1
        Because we are remanding this cause, we need not address Father’s claim as to whether modification
       amounted to a restriction of his parenting time.

       Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015        Page 9 of 12
       would be in the best interest of the Children. See Hill v. Ramey, 744 N.E.2d 509,

       513 (Ind. Ct. App. 2001) (holding that modification of visitation was “improper

       because the order includes no finding that modification would serve the child’s

       best interests”). Here, the trial court failed to articulate at the hearing or in its

       written order whether modification of his parenting time would serve the

       Children’s best interests. Under these circumstances, we remand for the trial

       court to determine and make findings as to whether the modification of Father’s

       summer parenting time would serve the Children’s best interests.


                                                CONCLUSION


[18]   For the reasons mentioned above, we conclude that the trial court abused its

       discretion in modifying Father’s summer parenting time without a finding that

       modification is in the best interest of the Children. In this regard, we remand

       for the trial court to make necessary determination consistent with this opinion.


[19]   Remanded with instructions.


[20]   Vaidik, C. J. concurs


[21]   Baker, J. dissents with separate opinion




       Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 10 of 12
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       In re the Marriage of:                                   Court of Appeals Case No.
                                                                82A05-1407-DR-331
       J.D.S.,
       Appellant-Respondent,

               v.

       B.S.,
       Appellees-Petitioner.




       Baker, Judge, dissenting.

[22]   I respectfully dissent. The trial court here was presented with a very complex

       set of circumstances to consider. The parties’ prior arrangement was

       complicated to begin with, and Father’s decision to relocate back to Indiana,

       followed by his decision to remain in Florida, taking into account his ability to

       spend more time with the Children during the school year than the parties had

       originally anticipated, left the trial court with quite a knot to untangle.




       Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 11 of 12
[23]   In my view, the trial court did a superb job managing the interests of the parents

       and Children, and arrived at a fair result for all concerned. It is readily

       apparent to me that the trial court took the best interests of the Children into

       account in modifying the parties’ parenting time arrangement. That the trial

       court did not explicitly state as much does not, in my opinion, warrant a

       remand. I believe that would be an unnecessary use of judicial resources, as

       well as the parties’ time and money. Consequently, I would affirm the trial

       court’s order.




       Court of Appeals of Indiana | Memorandum Opinion | 82A05-1407-DR-331 | April 10, 2015   Page 12 of 12
