MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Nov 16 2018, 8:01 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Patrick A. Duff                                         Erin L. Berger
Duff Law, LLC                                           Evansville, Indiana
Evansville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Carl T. Winkley,                                        November 16, 2018
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        82A04-1711-DR-2786
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
Patricia Z. Winkley,                                    The Honorable Leslie Shively,
Appellee-Respondent                                     Judge
                                                        Trial Court Cause No.
                                                        82D01-1606-DR-724



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018      Page 1 of 19
[1]   Carl T. Winkley (“Father”) appeals the trial court’s order dissolving his

      marriage to Patricia Z. Winkley (“Mother”). He presents multiple issues for

      our review, which we restate as:


               1. Whether the trial court abused its discretion when it
               distributed the marital property amongst the parties;


               2. Whether the trial court abused its discretion when it awarded
               Mother physical and legal custody of J.W., P.W., R.W., and
               D.W. (collectively, “Minor Children”); and


               3. Whether the trial court abused its discretion when it ordered
               Father’s parenting time with J.W. and P.W. to be supervised.


      We reverse in part, affirm in part, and remand for proceedings consistent with

      this opinion.



                             Facts and Procedural History                                   1




[2]   Mother and Father married on March 17, 1995. On June 3, 2016, Father filed

      a petition for dissolution of his marriage to Mother. There were seven children

      of the marriage, four of whom were Minor Children. On February 24, 2017,

      the trial court issued a Provisional Order addressing custody, parenting time,

      and financial issues. In the Provisional Order, the trial court awarded Father




      1
        Father provides a page from mycase.in.gov in his appendix, indicating it is the chronological case summary,
      despite the fact the mycase page states it is not the official record of the court. While there is no appellate
      rule against citing mycase, we prefer the Official Chronological Case Summary, which is the official record of
      the court and may be obtained from the trial court.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018          Page 2 of 19
      primary physical custody of Minor Children, and Mother was permitted to

      exercise six hours of parenting time with Minor Children per week.


[3]   On March 23, 2017, the trial court set a final hearing on the dissolution for July

      31, 2017. On April 11, 2017, Mother filed a motion for appointment of a

      Guardian ad Litem (“GAL”). On May 5, 2017, the trial court granted

      Mother’s motion and ordered the appointment of a GAL at Father’s expense.

      The GAL filed her report on July 28, 2017.


[4]   The trial court held the first final dissolution hearing on July 31, 2017. The trial

      court held four subsequent “final” hearings on August 3, 2017; September 8,

      2017; September 22, 2017; and September 26, 2017. During the September 22,

      2017, hearing, the trial court entered an order awarding Mother immediate

      physical custody of all Minor Children. On October 26, 2017, the trial court

      entered its order dissolving the marriage of Mother and Father.



                                Discussion and Decision
                              Distribution of Marital Property
[5]   Father argues the trial court abused its discretion when it divided the marital

      property. We note the record does not reflect that either party asked the trial

      court to enter findings pursuant to Indiana Trial Rule 52. Nevertheless, the trial

      court entered a number of findings sua sponte as authorized by the Rule. When

      a general judgment is entered with findings, we will affirm it if it can be

      sustained on any legal theory supported by the evidence. Yanoff v. Muncy, 688


      Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018   Page 3 of 19
      N.E.2d 1259, 1262 (Ind. 1997). Findings will be set aside only if they are

      clearly erroneous. Id. A finding is clearly erroneous only if the record contains

      no facts to support it either directly or by inference, and a judgment is clearly

      erroneous if it applies the wrong legal standard to properly found facts. Id.

      Superfluous findings, even if erroneous, cannot provide a basis for reversible

      error. Mullin v. Mullin, 634 N.E.2d 1340, 1341-42 (Ind. Ct. App. 1994).


[6]   Indiana subscribes to a “one-pot” theory of marital property. Morey v. Morey, 49

      N.E.3d 1065, 1069 (Ind. Ct. App. 2016) (citing Ind. Code § 31-15-7-4). Thus,

      when parties petition for dissolution of marriage,


              the court shall divide the property of the parties, whether:


              (1) owned by either spouse before the marriage;


              (2) acquired by either spouse in his or her own right:


                      (A) after the marriage; and


                      (B) before final separation of the parties; or


              (3) acquired by their joint efforts.


      Ind. Code § 31-15-7-4(a); see also Ind. Code § 31-9-2-98 (defining “property” for

      the purposes of dissolution as “all the assets of either party or both parties”).

      This “one-pot” theory ensures that all assets are subject to the trial court’s

      power to divide and award. Morey, 49 N.E.3d at 1069.


      Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018   Page 4 of 19
[7]   Then, when the court divides the property, it


              shall presume that an equal division of the marital property
              between the parties is just and reasonable. However, this
              presumption may be rebutted by a party who presents relevant
              evidence, including evidence concerning the following factors,
              that an equal division would not be just and reasonable:


              (1) The contribution of each spouse to the acquisition of the
              property, regardless of whether the contribution was income
              producing.


              (2) The extent to which the property was acquired by each
              spouse:


                      (A) before the marriage; or


                      (B) through inheritance or gift.


              (3) The economic circumstances of each spouse at the time the
              disposition of the property is to become effective, including the
              desirability of awarding the family residence or the right to dwell
              in the family residence for such periods as the court considers just
              to the spouse having custody of any children.


              (4) The conduct of the parties during the marriage as related to
              the disposition or dissipation of their property.


              (5) The earnings or earning ability of the parties as related to:


                      (A) a final division of property; and




      Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018   Page 5 of 19
                      (B) a final determination of the property rights of the
                      parties.


      Ind. Code § 31-15-7-5. If the court determines that one party rebutted the

      presumption of equal division, “then the court must state its reasoning in its

      findings and judgment.” Morey, 49 N.E.3d at 1072.


[8]   The trial court has discretion to divide marital property, and we reverse only if

      the court abused its broad discretion. Love v. Love, 10 N.E.3d 1005, 1012 (Ind.

      Ct. App. 2014). An abuse of discretion occurs if the trial court: (1) entered a

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

      the court, (2) misinterpreted the law, or (3) disregarded evidence of factors listed

      in the controlling statute. Id. When we review a claim that the trial court

      improperly divided marital property, we consider only the evidence most

      favorable to the trial court’s disposition. Morey, 49 N.E.3d at 1069. Even if the

      facts and reasonable inferences might allow for a different conclusion, “we will

      not substitute our judgment for that of the trial court.” Id.


[9]   Division of marital property is highly fact sensitive, and we review a trial

      court’s division “as a whole, not item by item.” Love, 10 N.E.3d at 1012. We

      will not weigh evidence or consider evidence that conflicts with the trial court’s

      judgment. Id. The party challenging the division of marital property “must

      overcome a strong presumption that the court considered and complied with

      the applicable statute.” Id. at 1012-13 (quoting Wanner v. Hutchcroft, 888 N.E.2d

      260, 263 (Ind. Ct. App. 2008)). In essence, we may not reverse a property

      distribution unless there is no rational basis for it. Id. at 1013.
      Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018   Page 6 of 19
[10]   Here, the trial court divided the marital property as follows:


               6.01. Scarp, Inc. The corporation has no independent value as a
               going concern. The assets used by the corporation for business
               operations were also used by the parties personally. These assets
               shall be allocated between the parties as indicated in this section.
               [Father] shall be declared the sole owner of his 70% interest in
               Scarp, Inc.


               6.02 Unimproved Real Property: The parties are the owners of
               unimproved real property located in the State of Missouri. The
               property shall be listed for sale with a licensed broker at a fair
               market value to be determined by said broker within 30 days of
               this Order. The proceeds from the sale shall be equally divided
               between the parties.


               6.03 Vehicles. [Father] shall be the sole owner of the 2016
               Dodge Ram motor vehicle. [Mother] shall be the sole owner of
               the 2011 Mercedes motor vehicle. The [Father] shall be
               responsible for the debt on each vehicle and shall hold the
               [Mother] harmless therefrom.


               6.04 Bank Accounts. The parties are the owners of various joint
               bank accounts. The parties agree that all bank accounts shall be
               divided equally between the parties on the day this Decree is
               executed by this Court.


               6.05 [Mother’s] Personal Property. [Mother] shall have and
               retain exclusive legal title, free and clear from any claim of
               Husband, to her clothing, jewelry, household goods, furnishings,
               and other personal property currently in her possession.
               Additionally, [Mother] shall be the owner of the following
               personal property, which shall immediately be surrendered by the
               [Father]:


       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018   Page 7 of 19
                       Laptop Computer
                       Decorations from Pier 1
                       60” Television set
                       Ninja blender
                       Dining room furniture located in marital residence
                       Bedroom furniture located in marital residence
                       Decorations in the kitchen of marital residence
                       Clothing belonging to [P.W.]
                       Clothing belonging to [J.W.]
                       Smaller desk
                       All items belonging to the minor children


               6.06 [Father’s] Personal Property. [Father] shall have and retain
               exclusive legal title, free and clear of any claim of [Mother], to
               his clothing, jewelry, household goods, furnishings, and other
               personal property currently in his possession, except as expressly
               provided elsewhere in this Agreement.


               6.07 Tax Refund. The parties shall equally divide the tax refund
               for 2015. [Father] shall pay to [Mother] a sum equal to fifty
               percent (50%) of the tax refund amount within 30 days of this
               Decree. The parties shall file a joint tax return for tax year 2016.
               [Father] shall be responsible for any outstanding tax liability for
               tax year 2016, and any and all prior years. The parties shall file
               separate tax returns for tax year 2017 and each year thereafter.


       (Appellant’s App. at 27-8) (formatting in original).


[11]   The trial court divided the parties’ marital debts and obligations as follows:


               7.01 Debts and Obligations of [Father]. Except as otherwise
               expressly provided in this Agreement, [Father] shall be solely
               responsible for the debts and obligations in his individual name,
               and, in addition, all debts and obligations incurred by him since
               the date of final separation. [Father] agrees to defend,

       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018   Page 8 of 19
        indemnify, and hold harmless [Mother] from and against any
        and all liability, expense, attorney’s fees, loss or damages which
        may be incurred or sustained by [Mother], directly or indirectly,
        arising out of, founded upon, or resulting from the failure of
        [Father] to perform, satisfy, or pay debts or obligations imposed
        by this Agreement.


        7.02 Debts and Obligations of [Mother]. Except as otherwise
        expressly provided in this Agreement, [Mother] shall be solely
        responsible for the debts and obligations in her individual name
        incurred by her since the date of final separation. [Mother]
        agrees to defend, indemnify, and hold harmless [Father] from
        and against any and all liability, expense, attorney’s fees, loss or
        damage which may be incurred or sustained by [Father], directly
        or indirectly, arising out of, founded upon, or resulting from the
        failure of [Mother] to perform, satisfy, or pay debts or obligations
        imposed by this Agreement.


        7.03 Assumption of Debts. Each of the parties shall assume full
        responsibility for the debts listed below, to pay the debt timely as
        it becomes due and payable, and to indemnify and hold the other
        party harmless from any liability arising from the same:


         Assuming                        Creditor                        Approximate
         Party                                                           Balance Due
         [Father]                        Any remaining                   Unknown
                                         balance on
                                         lease of marital
                                         residence
         [Father]                        Mercedes-benz                   $22,000.00
                                         indebtedness
         [Father]                        Ram truck                       $40,000.00
                                         indebtedness
         [Father]                        Sybill                          $11,000.00
                                         Heydrich
         [Father]                        Fielding                        $4,000.00
                                         Manor

Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018   Page 9 of 19
                [Father]                        FNBC - prior                    $66,000.00
                                                mortgage
                [Father]                        HSBC credit                     $12,000.00
                                                card
                [Father]                        FNBC business                   $6,000.00
                                                loan
                [Father]                        Orthodontist                    $3,000.00
                [Father]                        Damages to                      $1,300.00
                                                Mercedes-benz
                [Father]                        FNBC Credit                     $1,542.38
                                                card debt


               7.04 Guardian-ad-Litem Fees. As previously ordered, [Father]
               shall be responsible for the Guardian-ad-Litem fee owed to Amy
               Brandsasse, with an outstanding balance as of October 12, 2017
               of $3,789.05. Said fee is hereby reduced to a Judgment against
               [Father] and in favor of Amy Brandsasse and Professional
               Guardian-ad-Litem Services, LLC. [Father] shall indemnify and
               hold [Mother] harmless from any liability arising out of the
               failure of [Father] to perform, satisfy, or pay said debt. The
               Court affirms its prior Order that [Father] pay the sum of Five
               Hundred Dollars ($500.00) per month toward the outstanding
               fees owed to the Guardian-ad-Litem.


       (Id. at 28-9) (errors in original). Father contends the trial court’s division of

       marital property resulted in an unequal distribution of property and the trial

       court erred by not providing its reasoning for this unequal split of marital

       property. We agree.


[12]   Considering the property division as a whole it would seem, based on the trial

       court’s findings, that Father and Mother split equally the personal property,

       bank accounts, tax refunds, unimproved real property, and individual personal

       debt. However, the trial court assigned all of the marital debt, a total of at least

       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 10 of 19
       $166,842.38, to Father. In addition, the trial court left unknown the

       approximate balance due on the lease of the marital residence and did not

       attach a monetary value to Father’s company, Scarp, Inc. Moreover, the trial

       court awarded the Mercedes to Mother, but assigned the debt for that vehicle to

       Father. Therefore, Father has rebutted the presumption that the marital pot

       was divided equally, and thus the trial court was required to give a reason for

       that unequal split. See Morey, 49 N.E.3d at 1072 (trial court must state reason

       for deviation from equal division of marital pot). We reverse and remand for

       redistribution of marital assets or for findings by the trial court that justify an

       unequal distribution of assets.


                                  Custody and Parenting Time
[13]   Custody determinations fall squarely within the discretion of the trial court and

       will not be disturbed except for abuse of discretion. Klotz v. Klotz, 747 N.E.2d

       1187, 1189 (Ind. 2001). We will not reverse unless the decision is against the

       logic and effect of the facts and circumstances before us or the reasonable

       inferences drawn therefrom. Id. When, as here, the trial court enters findings

       sua sponte, the specific findings control only as to the issue they cover. Julie C. v.

       Andrew C., 924 N.E.2d 1249, 1255 (Ind. Ct. App. 2010). A general judgment

       standard applies to those issues upon which the trial court did not make

       findings. Id. The specific findings will not be set aside unless they are clearly

       erroneous, and we will affirm the general judgment on any legal theory

       supported by the evidence. Id. A finding is clearly erroneous when “there are

       no facts or inferences drawn therefrom that support it.” Id. at 1256. In

       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 11 of 19
       reviewing the trial court’s findings we cannot reweigh the evidence or judge the

       credibility of witnesses. Id. We consider only the evidence that supports the

       findings and the reasonable inferences to be drawn therefrom. Id. The trial

       court is not required to make specific findings regarding each of these factors,

       unless requested to do so by one of the parties. Hegerfeld v. Hegerfeld, 555

       N.E.2d 853, 856 (Ind. Ct. App. 1990).


[14]   Here, the trial court found, regarding custody and parenting time of Minor

       Children:


               8.01 Legal Custody. [Mother] shall have sole legal custody of the
               children.


               8.02 Physical Custody. [Mother] shall have sole physical custody
               of the children.


               8.03 Parenting Time. The Court adopts the Interim Order on
               Custody of 9-22-17 and orders as follows: The Court grants
               physical custody of the minor children in this matter to Mother[.]
               The Father shall have parenting time with the older two children
               in this matter, R.W., and D.W., pursuant to the Indiana
               Parenting Time Guidelines. The Court orders Father to have
               parenting time with the younger two (2) children in this matter,
               P.W. and J.W., to be supervised by the Parenting Time Center.


       (Appellant’s App. at 29-30.) Father argues the trial court abused its discretion

       when it granted legal and physical custody to Mother, and when it ordered

       Father’s parenting time supervised with P.W. and J.W. We address each issue

       in turn.


       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 12 of 19
                                                Legal Custody

[15]   The trial court’s decision regarding legal custody of minor children is guided by

       Indiana Code section 31-17-2-15, which states:


               In determining whether an award of joint legal custody under
               section 13 of this chapter would be in the best interest of the
               child, the court shall consider it a matter of primary, but not
               determinative, importance that the persons awarded joint
               custody have agreed to an award of joint legal custody. The court
               shall also consider:


               (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.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 13 of 19
[16]   Father argues the trial court abused its discretion when it awarded Mother sole

       legal custody of Minor Children because he “expressed his desire to work with

       [Mother] and to ensure that [Minor Children] got the care they needed.” (Br. of

       Appellant at 23.) Father also points to general evidence that he has made “an

       overt effort . . . to be involved with [Minor Children].” (Id.) Father’s

       arguments are requests for us to reweigh the evidence and judge the credibility

       of witnesses, which we cannot do. See Julie C., 924 N.E.2d at 1256 (appellate

       court will not reweigh evidence or judge the credibility of witnesses). The trial

       court did not abuse its discretion. See Nunn v. Nunn, 791 N.E.2d 779, 787 (Ind.

       Ct. App. 2003) (it is within the trial court’s discretion to grant sole legal custody

       to one parent despite both parents’ involvement in child rearing and strong

       bonds with their children).


[17]   Furthermore, there exists sufficient evidence to support the trial court’s award

       of sole legal custody to Mother. The GAL stated:


               This families [sic] in crisis, it’s been in crisis for a long time and
               with how the custody exchange transferred [sic] was handled and
               I saw how chaotic it was and it was their normal. It just really
               registered with me that um, it’s, things are bad in this case. . . . I
               think there is no ability to co-parent at this point. There’s no
               ability to co-parent. So, I think it’s obvious that sole legal
               should, should go to [Mother]. Just because there is no ability to
               co-parent between the two of these people.


       (Tr. Vol. III at 138-9.) The record and parties’ appellate briefs are littered with

       language indicating extreme animosity between the parties - Father’s recitation

       of the facts focuses on alleged incidents involving domestic violence at the

       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 14 of 19
       hands of Mother, and Mother’s brief details allegations of child abuse. The trial

       court did not abuse its discretion when it awarded sole legal custody of Minor

       Children to Mother. See Carmichael v. Siegel, 754 N.E.2d 619, 636 (Ind. Ct.

       App. 2001) (“Even two parents who are exceptional on an individual basis

       when it comes to raising their children should not be granted, or allowed to

       maintain, joint legal custody over the children if it has been demonstrated . . .

       that those parents cannot work and communicate together to raise the

       children.”).


                                               Physical Custody

[18]   In determining child custody, the trial court is to consider eight statutory

       factors:


               (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.



       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 15 of 19
               (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.


       Ind. Code § 31-17-2-8.


[19]   Father argues the trial court abused its discretion when it awarded sole physical

       custody of Minor Children to Mother because it did “not provide any

       additional explanation for its ruling.” (Br. of Appellant at 22.) Father did not

       request such findings, and the trial court was not required to enter specific

       findings regarding the reasons it awarded Mother sole physical custody of

       Minor Children. See Hegerfeld, 555 N.E.2d at 856 (absent a request from one of

       the parties, the trial court is not required to make specific findings regarding the

       factors considered when making a child custody determination).


[20]   Father also seems to argue the evidence before the trial court, when considered

       in light of the factors in Indiana Code section 31-17-2-8, does not support its

       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 16 of 19
       award of sole physical custody of Minor Children to Mother. However,

       Father’s alternate versions of certain events are invitations for us to reweigh the

       evidence and judge the credibility of witnesses, which we cannot do. See Julie

       C., 924 N.E.2d at 1256 (appellate court will not reweigh evidence or judge the

       credibility of witnesses).


                                                Parenting Time

[21]   A trial court has discretion to determine issues regarding parenting time, and

       we will reverse only upon a showing of abuse of that discretion. Lasater v.

       Lasater, 809 N.E.2d 380, 400 (Ind. Ct. App. 2004). “No abuse of discretion

       occurs if there is a rational basis in the record supporting the trial court’s

       determination.” Id. On appeal, we cannot reweigh evidence or judge the

       credibility of witnesses. Id. “In all visitation controversies, courts are required

       to give foremost consideration to the best interests of the child.” Id.


[22]   Indiana Code section 31-17-4-1 states, in relevant part: “A parent not granted

       custody of the child is entitled to reasonable parenting time rights unless the

       court finds, after a hearing, that parenting time by the noncustodial parent

       might endanger the child’s physical health or significantly impair the child’s

       emotional development.” Although that section uses the term ‘might,’ “this

       court interprets the statute to mean that a court may not restrict visitation unless

       that visitation would endanger the child’s physical health or well-being or

       significantly impair the child’s emotional development.” Farrell v. Littell, 790




       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 17 of 19
       N.E.2d 612, 616 (Ind. Ct. App. 2003) (interpreting Ind. Code § 31-14-14-1 2).

       “By ‘its plain language,’ [the statute] requires a court to make a specific finding

       ‘of physical endangerment or emotional impairment prior to placing a

       restriction on the noncustodial parent’s visitation.’” Id. (quoting In re Paternity

       of V.A.M.C., 768 N.E.2d 990, 1001 (Ind. Ct. App. 2002), clarified on reh’g). An

       order of supervised parenting time constitutes a restriction of parenting time

       under Indiana Code section 31-17-4-1. Hatmaker v. Hatmaker, 998 N.E.2d 758,

       761 (Ind. Ct. App. 2013).


[23]   Father argues the trial court abused its discretion when it ordered him to

       participate in supervised visitation with P.W. and J.W. because the trial court

       did not make a specific finding that unsupervised parenting time might cause

       physical endangerment or emotional impairment to P.W. and J.W. We agree.

       The trial court was required to make such a finding to order supervised

       visitation, and it did not. Therefore, we remand for the trial court to either: (1)

       enter a specific finding that satisfies Indiana Code section 31-17-4-1; or (2)

       remove the requirement that Father exercise supervised parenting time with

       P.W. and J.W. See Farrell, 790 N.E.2d at 616 (noting statute required a specific

       finding to support the restriction of parenting time).




       2
         Indiana Code section 31-14-14-1 governs parenting time in a paternity action, while Indiana Code section
       31-17-4-1 governs parenting time in a dissolution action. The language of the two statutes is virtually
       identical, and we have interpreted them to have the same meaning. Compare language of Ind. Code § 31-14-
       14-1(a) with Ind. Code § 31-17-4-1(a); and see, e.g., In re Paternity of W.C., 952 N.E.2d 810, 815 n.2 (Ind. Ct.
       App. 2011) (noting the relevant provisions in the two statutes are virtually identical).

       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 18 of 19
                                              Conclusion
[24]   Father has demonstrated an unequal distribution of the marital pot, and thus

       the trial court’s failure to include findings to justify that distribution constitutes

       an abuse of discretion. The trial court also abused its discretion when it ordered

       Father to have supervised parenting time with P.W. and J.W. without entering

       a specific finding to support that restriction, as required by statute. However,

       the trial court did not abuse its discretion when it awarded sole legal and sole

       physical custody of Minor Children to Mother.


[25]   Accordingly, we reverse the trial court’s division of the marital property and

       remand for it to: (1) equalize the distribution of the marital pot; or (2) enter

       findings to support an unequal distribution of the marital pot. We also reverse

       the trial court’s order that Father have supervised parenting time with J.W. and

       P.W. and remand for the trial court to: (1) allow Father unsupervised parenting

       time pursuant to the Indiana Parenting Time Guidelines; or (2) issue findings to

       justify that restriction under Indiana Code section 31-17-4-1. We affirm the

       trial court’s award of sole legal and sole physical custody of Minor Children to

       Mother.


[26]   Reversed in part, affirmed in part, and remanded.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1711-DR-2786 | November 16, 2018 Page 19 of 19
