MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Jul 14 2017, 8:59 am
court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Donna Jameson
Greenwood, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of                                    July 14, 2017
Connor Ricciardi;                                         Court of Appeals Case No.
                                                          49A05-1701-JP-61
Korey Ricciardi,
                                                          Appeal from the Marion Superior
Appellant-Petitioner,                                     Court
        v.                                                The Honorable Timothy Oakes,
                                                          Special Judge
Christina Feiock,                                         Trial Court Cause No.
                                                          49D02-1003-JP-10744
Appellee-Respondent.




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1701-JP-61 | July 14, 2017                   Page 1 of 5
                                 Case Summary and Issue
[1]   Korey Ricciardi (“Father”) appeals the trial court’s denial of his petition to

      modify parenting time. He raises one issue, which we restate as whether the

      trial court abused its discretion when it denied him a hearing on his petition to

      modify parenting time. Concluding the trial court abused its discretion in not

      holding a hearing, we reverse and remand.



                             Facts and Procedural History
[2]   Father and Christina Feiock (“Mother”) are the parents of C.R., who was born

      in October of 2006. Father obtained sole legal and physical custody of C.R. in

      May of 2015. Mother appealed the trial court’s order and we affirmed. See

      Feiock v. Ricciardi, No. 49A02-1506-JP-611 (Ind. Ct. App. Feb. 16, 2016). In

      June of 2016, Mother filed an emergency motion to modify custody. A hearing

      was scheduled on Mother’s emergency motion for October 25, 2016.


[3]   On October 20, 2016, Father filed an emergency petition to modify parenting

      time, seeking supervised parenting time for Mother. Father alleged, in part,

      Mother disagreed with and refused to follow the health treatment plan for C.R.

      that Father was pursuing; continued to report Father to the Department of

      Child Services after its supervisors deemed her previous allegations

      unsubstantiated, thereby subjecting C.R. to numerous investigations; accused

      C.R. of being violent and touching himself, and made those accusations in front

      of C.R.; and made unilateral decisions detrimental to C.R.’s physical and


      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-JP-61 | July 14, 2017   Page 2 of 5
      emotional well-being. Father also submitted a proposed order to appear that

      would have set a hearing on his petition for the same date and time as the

      hearing already scheduled on Mother’s motion. The trial court did not sign the

      order prior to the October 25 hearing.


[4]   At the conclusion of the hearing on Mother’s motion, the trial court denied her

      motion to modify custody. The next day, the trial court denied Father’s

      proposed order to appear and request for a hearing regarding his petition to

      modify parenting time. The trial court’s order states, “Court deems matter

      moot as [Father] was asked in Open Court on 10/25/16 if there was anything

      else to be heard and responded in the negative.” Appendix of Appellant Korey

      Ricciardi, Volume II at 21. This court granted Father’s motion to file a belated

      appeal on January 27, 2017.



                                 Discussion and Decision
                                      I. Standard of Review
[5]   A decision about parenting time requires us to give foremost consideration to

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

      2013). Generally, parenting time decisions are reviewed for an abuse of

      discretion. Id. An abuse of discretion occurs where the trial court’s decision is

      clearly against the logic and effect of the facts and circumstances before the

      court. Russell v. Russell, 682 N.E.2d 513, 515 (Ind. 1997). If the record reveals a

      rational basis for the trial court’s determination, there is no abuse of discretion.

      In re Paternity of G.R.G., 829 N.E.2d 114, 122 (Ind. Ct. App. 2005).
      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-JP-61 | July 14, 2017   Page 3 of 5
[6]   We note Mother did not file an appellee’s brief. We apply a less stringent

      standard of review with respect to showings of reversible error when an appellee

      fails to file a brief. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006).

      We will not undertake the burden of developing the arguments for the appellee,

      and we may reverse if the appellant establishes prima facie error. Id. When the

      appellant fails to sustain that burden, we will affirm. Murfitt v. Murfitt, 809

      N.E.2d 332, 333 (Ind. Ct. App. 2004).


                               II. Denial of Father’s Motion
[7]   Father contends the trial court abused its discretion in denying his petition to

      modify parenting time. Specifically, he claims the trial court’s reliance on his

      statements made at the hearing on Mother’s motion was against the logic and

      effect of the facts and circumstances before the court.


[8]   The trial court asked Father “if there was anything else to be heard” during the

      hearing on Mother’s motion to modify custody. Father’s petition to modify

      parenting time was not at issue, nor even scheduled, when he responded in the

      negative. As a result, Father could have reasonably understood the trial court’s

      question to refer to whether Father had anything else to add regarding Mother’s

      motion rather than referring to whether Father had any additional issues to

      address. Denying Father’s petition to modify Mother’s parenting time based on

      serious allegations that her behavior was impacting C.R.’s best interests without

      a hearing and when Father did not affirmatively withdraw his petition is against

      the logic and effect of the facts and circumstances presented here. Recognizing


      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-JP-61 | July 14, 2017   Page 4 of 5
       Mother did not file an appellee’s brief, we conclude Father has established

       prima facie error in the trial court’s determination that his petition is moot.

       Father is entitled to his day in court, and we therefore reverse the trial court’s

       denial of Father’s petition and remand for a hearing.



                                                Conclusion
[9]    Concluding the trial court abused its discretion, we reverse and remand for

       further proceedings.


[10]   Reversed and remanded.


       Vaidik, C.J., and Bailey, J., concur.




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