MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                        Apr 16 2019, 8:43 am
regarded as precedent or cited before any
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.


APPELLANT, PRO SE                                         ATTORNEYS FOR
Darya Hupp                                                APPELLEE-INTERVENOR
Fort Wayne, Indiana                                       George Guido
                                                          David C. Pricer
                                                          Graly & Guido Law Office, LLC
                                                          Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of R.H.                               April 16, 2019

Darya L. Hupp,                                            Court of Appeals Case No.
                                                          18A-JP-2110
Appellant-Petitioner,
                                                          Appeal from the
        v.                                                Adams Circuit Court
                                                          The Honorable
Adam Salsburey,                                           Chad E. Kukelhan, Judge
                                                          Trial Court Cause No.
Appellee-Respondent,
                                                          01C01-0609-JP-67
        and
Carolyn Clay,
Appellee-Intervenor



Vaidik, Chief Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019                  Page 1 of 16
                                           Case Summary
[1]   Darya L. Hupp (“Mother”) appeals the trial court’s order suspending her

      parenting time and finding her in contempt for failing to pay child support as

      ordered and to correct her son’s birth certificate. We affirm.



                             Facts and Procedural History
[2]   Mother and Adam Salsburey (“Father”) have one child, R.H. (“Child”), who

      was born in 2005. Father’s paternity of Child was established by order of the

      Allen Circuit Court in 2007. At that time, the court also ordered Mother to

      correct Child’s birth certificate to list Father as the father of Child. Because

      Child was born in California, the court found that correcting Child’s birth

      certificate was Mother’s responsibility.


[3]   Two years later, in 2009, Mother informed the court that she desired Child’s

      paternal grandmother, Carolyn Clay (“Grandmother”), to serve as Child’s

      custodian. After a hearing on Mother’s request, the court ordered custody of

      Child be granted to Father. Mother was granted visitation with Child pursuant

      to the Indiana Parenting Time Guidelines “or as the parties may agree.”

      Appellant’s App. Vol. II p. 55. Shortly after the court issued its order (“2009

      Order”), Mother relocated to California. Then, in 2015, Father executed a

      medical and educational power of attorney of Child in favor of Grandmother

      and her husband, Daniel Clay, and moved out of state. Father has not returned

      to Indiana and has had virtually no contact with Child since 2015.


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 2 of 16
[4]   In December 2016, Mother filed a petition to modify custody. Grandmother

      was permitted to intervene in the case and requested that Mother’s parenting

      time be “restricted and/or limited to that of supervised.” Id. at 52. In January

      2017, Father signed an affidavit “for the purpose of showing his complete, full,

      and voluntary consent to primary sole physical custody being awarded to

      [Grandmother].” Id. at 35. After Mother requested and was granted two

      continuances, a hearing was held on April 24. Mother failed to appear and sent

      the court a letter explaining that “[t]he emotional traumatic nature of this case

      renders me incapable of completing the Interrogatories and any future inquires

      or motions that may arise . . . I will be unable to complete the forms that have

      been requested of me, and I will be unable to attend the hearing set for April

      24.” Appellee’s App. Vol. II p. 12. After the hearing, the court issued an order

      granting sole legal and physical custody of Child to Grandmother. The order

      provides, in relevant part:


              3. Shortly after the entry of the [2009 Order], [Mother] moved to
              California and has resided there since that time. Since that point
              in time, she has only had physical contact with [Child] on one (1)
              brief occasion and has chosen to have only nominal phone or
              other electronic contact with him. For that matter, [Mother] has
              had no contact of any kind with [Child], whether in person,
              email, skype, or phone contact since March 31, 2012.


                                                      *****


              9. [Child’s] Nurse Practitioner, Candace Lemke, of The Bowen
              Center in Fort Wayne, Indiana, has advised that it would be in



      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 3 of 16
        [Child’s] “best interests to remain with [Grandmother] since he
        has been there since age 3.”


        10. [Child] currently has a learning disability and suffers from
        ADHD.


                                                *****


        13. After two (2) continuances having been requested by, and
        granted to [Mother], this matter was set for a final hearing before
        this court on [April 24]. When granting the second continuance,
        [Mother] was advised that the court was “granting this LAST
        continuance over the objection of counsel and resets the matter to
        [April 24] on which day and time this matter will DEFINITELY
        be heard.”


        14. [Mother] sent a letter to the court acknowledging her
        “inability” to complete Interrogatories propounded to her as well
        as “any future inquires or motions that might arise,” as well as
        her inability to attend the hearing set for [April 24].


        15. Having heard sworn testimony, the court orders:


                                                *****


                 d. For the reasons presented to this court, this court finds
                 that parenting time between [Mother] and [Child], would
                 significantly impair [Child’s] emotional development and
                 well being and, further, might endanger [Child].
                 Accordingly, parenting time between [Mother] and [Child]
                 whether in person or by phone, shall be on an agreed upon
                 basis, with the understanding that [Mother’s] parenting
                 time shall be restricted. Given that [Mother] has had no
                 physical contact with [Child] since August of 2009, and no

Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 4 of 16
                 contact of any kind, electronic or otherwise, since March
                 31, 2012, [Mother’s] parenting time shall take place in Fort
                 Wayne, Indiana and shall be supervised, at all times, by
                 [Grandmother] and/or her husband, Daniel Clay, whether
                 in person or by phone.


                 e. [Mother] is, once again, admonished to complete the
                 necessary paperwork required to have [Child’s] birth
                 certificate changed to reflect that [Father] is the father of
                 [Child].


                                                *****


                 g. [Mother] shall be obligated to pay child support for
                 [Child] on a nominal basis. [Mother’s] obligation shall be
                 at the rate of $51 per week.


                                                *****


                 j. [Grandmother] has incurred attorney fees of
                 approximately $7,436 with regard to her need to defend,
                 and respond to [Mother’s court petitions]. . . . The court
                 finds that [Mother], who initiated these proceedings in the
                 first place, should be obligated to pay one-half (1/2) of
                 those attorney fees, or the sum of $3,718.


Appellant’s App. Vol. II pp. 56-59. Over six months later, in December 2017,

Mother notified the court that she had permanently relocated back to Indiana

on July 6, 2017, that she had been unemployed since 2015, that she had left her

job “because of religious discrimination,” that she was without income, and

that she was homeless, living in a shelter. Id. at 61.


Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 5 of 16
[5]   In June 2018, Mother filed a petition to modify parenting time. Grandmother

      responded by filing an information for contempt and rule to show cause, a

      petition for attorney’s fees, and a motion for proceedings supplemental. A

      hearing on these motions was held in August 2018. At the hearing, Mother

      admitted that she had not corrected Child’s birth certificate, testifying that

      “according to the California Department of Health, I have to have a notarized

      statement from [Father] that he is [Child’s] biological father.” Tr. p. 6. Mother

      said that she sent Father a letter on July 20 asking for a notarized statement, but

      that she had not heard back from him. Regarding child support, Mother

      testified that she was “not in arrears of any child support.” Id. However,

      Grandmother provided evidence showing that Mother “was willfully behind for

      a very long time,” was “very sporadic” in child-support payments, and that she

      made a “substantial payment to get the support caught up” “in anticipation of

      the hearing.” Id. at 21; see also Ex. I-1. Grandmother also presented evidence

      that Mother had secured two jobs, one at The Lamp Light and the other at

      Generation Home Care and was able to pay her weekly child-support

      obligation. Finally, Mother testified that “the reason why” she is seeking to

      modify parenting time “is because this is a case of parental alienation.” Tr. p.

      11. Mother said that after Child “hung up on [her] on his birthday, [she] sent

      him a Hallmark card and [she] told [Child], [‘]you know, sweetie, I can’t talk to

      you or visit you just yet until after court, after we get this whole thing situated

      because it’s just too toxic.[’]” Id. at 12. Mother testified that her relationship

      with Child has “been poisoned” and that she believed Child thinks she “just

      abandoned him and never wanted anything to do with him.” Id. Mother
      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 6 of 16
      asserted that having unsupervised parenting time with Child would “save [her]

      relationship with [Child].” Id. at 11. Mother stated that she blamed

      Grandmother for “allowing [Child] to hang up on [her] on his birthday,” and

      she introduced evidence showing that she called Grandmother “many, many

      times” between May 27 and June 10. Id. at 8.


[6]   Grandmother also introduced evidence that Mother called her “many, many

      times” between May 27 and June 10. Grandmother’s evidence showed that on

      June 3, after Mother had called her numerous times without leaving a phone

      number, Mother finally left a message with a return phone number.

      Grandmother then called Mother to facilitate a supervised phone visit with

      Child. During the conversation, Mother told Child “your grandmother is a liar.

      Everything she has told you about me is a lie. She stole you from me.” Id. at

      23. Child became upset and asked Mother to “not speak that way about

      someone that he loved,” but Mother ignored him and continued calling

      Grandmother a liar. Id. When Child began crying, Grandmother ended the

      phone visit.


[7]   Grandmother then presented evidence that on June 8, she called Mother to set

      up a time for Mother to have an in-person visit with Child. See Ex. I-4, I-5.

      After some argument, Mother finally agreed to meet for a visit at the Glenbrook

      Mall on June 16. See id. However, before the visit occurred, Mother called

      Grandmother thirty times “in an hour” on June 10, Child’s birthday. Tr. p. 26.

      It was during one of these thirty phone calls that Child told Mother “I don’t

      want to talk to you” and hung up on her. Id. at 8. Grandmother then presented

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 7 of 16
      evidence of a police report from June 10, showing that she contacted police

      because of Mother’s “incessant, non-stop calls.” Id. at 25; Ex. I-6. The report

      showed that when officers spoke with Mother, she admitted that she had called

      thirty times within the last hour, “that she will be done for the day, but, will

      start back up tomorrow and then the next day and will continue to call to speak

      with [Child] every day until she gets to have a conversation with [Child].” Ex.

      I-6. The report also stated that Mother informed officers that she intended on

      having Grandmother arrested because “she can call [Child] whenever she

      wants” and “can talk to [Child] right on the spot.” Tr. p. 26. Despite all of

      this, Grandmother provided evidence that she took Child to the Glenbrook

      Mall on June 16 and then waited an hour for Mother. Mother “never show[ed]

      up,” and when Grandmother and Child got home, a card from Mother had

      been delivered. Id. In the card, Mother wrote that she would not be visiting

      Child that day because she “can’t have what little [they] have left to be ruined.”

      Ex. I-7.


[8]   Grandmother’s evidence showed that since “she began caring for [Child] at age

      three and a half,” he “has flourished and thrived in” her home. Tr. p. 19.

      Grandmother also introduced evidence showing that Mother’s “most recent

      behavior since the [hearing on April 24, 2017] has been rather erratic.” Id. at 17.

      First, Grandmother introduced a police report showing that on July 17, 2017,

      Mother approached a woman’s home, asked the woman to pray with her, and

      after the woman refused, began cussing at the woman. The woman called the

      police, and Mother told the responding officers that “Jesus spoke to her and


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 8 of 16
      told her to go and spread His word and pray with people.” Id. at 22. Next,

      Grandmother introduced a second police report showing that on September 17,

      2017, Mother went to a church in Fort Wayne with a shaved head and began to

      preach to the church. The church asked Mother to leave and called the police.

      When officers spoke to Mother, she told them “she was only doing what God

      had told her to do.” Id. Grandmother then introduced a third police report

      showing that on February 4, 2018, police officers were called to another church

      when Mother “went off on a tangent while giving testimony to the

      congregation.” Id. This report stated that Mother had a history of causing

      problems at churches and “has been trespassed from other churches because of

      this.” Id. Finally, Grandmother introduced a fourth police report showing that

      on April 8, 2018, police officers were called to a church because Mother was

      “screaming and yelling inside the sanctuary.” Id. Furthermore, Grandmother

      also introduced a YouTube video that showed Mother shaving her hair then

      taking the hair and burning it, while professing “I’m [d]oing this to prove that

      I’m not crazy.” Id. at 27; see also Ex. I-10. Based on this evidence,

      Grandmother requested, in addition to denying Mother’s petition to modify

      parenting time, that the court order Mother to “complete some sort of

      psychological evaluation by a counselor or a psychologist” before exercising

      any parenting time. Tr. p. 23.


[9]   Following the hearing, the court issued an order denying Mother’s petition to

      modify parenting time and granting Grandmother’s information for contempt

      and rule to show cause and petition for attorney fees. The court also granted


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 9 of 16
Grandmother’s request that Mother undergo psychological evaluation and

counseling before any more parenting time occurs. The order provides, in

relevant part:


        3. [Mother] is found in contempt of this Court’s orders as to her
        prior non-payment of child support and failure to secure the
        corrected birth certificate for [Child].


        4. [Grandmother] has incurred attorney fees in having to defend
        against [Mother’s] Petition to Modify Parenting Time . . . as well as
        her prosecution of her Verified Information for Contempt and Rule to
        Show Cause in the amount of $4,190.50.


        5. [Mother] is ordered to pay the sum of $4,190.50 to
        [Grandmother’s] attorney, Brian E. Stier, within 90 days of the
        date of this order.


        6. Based upon the evidence presented at the hearing, [Mother] is
        ordered to undergo a complete psychological evaluation with
        David Lombard, Psychologist . . . or James Cates, Psychologist .
        . . before any further supervised telephonic or in person parenting
        time is to occur. [Mother] shall be responsible for the cost and
        expense of the psychological evaluation.


        7. Further, [Mother] shall, at her expense, enroll and participate
        in individual counseling with a board certified psychologist or
        licensed therapist. . . . [Mother] shall attend said counseling at a
        minimum of one time per week until further Order of this Court.
        . . . [Mother’s] participation in counseling is a requirement for
        any further supervised telephonic and in person parenting time.


Appellant’s App. Vol. II pp. 26-27.



Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 10 of 16
[10]   Mother, pro se, now appeals.



                                     Discussion and Decision
[11]   Mother raises two arguments on appeal. She contends that the trial court erred

       by suspending her parenting time and by finding her in contempt for failing to

       pay child support as ordered and to correct Child’s birth certificate.


                                I. Suspension of Parenting Time
[12]   Mother first argues that the trial court abused its discretion when it effectively

       suspended her parenting time by ordering her to undergo a psychological

       evaluation and participate in individual counseling before any additional

       parenting time can occur. Decisions involving parenting-time rights under the

       paternity statutes are committed to the sound discretion of the trial court. 1 In re

       Paternity of W.C., 952 N.E.2d 810, 815 (Ind. Ct. App. 2011). Reversal is

       appropriate only upon a showing of an abuse of discretion. Id. at 816. When

       reviewing the trial court’s decision, we do not reweigh the evidence or

       reexamine the credibility of the witnesses. Id. Indiana has long recognized that

       the right of parents to visit their children is a precious privilege that should be

       enjoyed by noncustodial parents. Id. Accordingly, a noncustodial parent in a




       1
         Even though Mother and Grandmother cite the statutes governing parenting-time rights of noncustodial
       parents in divorce cases, see Indiana Code ch. 31-17-4, this is a paternity action, see Appellant’s App. p. 2 (first
       page of CCS labeling case as “In re: The Paternity of [Child]”). Therefore, the statutes in Indiana Code
       chapter 31-14-14 apply to this case. In any event, the controlling provisions in both chapters are nearly
       identical. Compare Ind. Code § 31-17-4-1(a) with Ind. Code § 31-14-14-1(a).

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019                       Page 11 of 16
       paternity action is generally entitled to reasonable parenting-time rights. See

       Ind. Code § 31-14-14-1(a). The right of parenting time, however, is

       subordinated to the best interests of the child. Id. Indiana Code section 31-14-

       14-1, which outlines the parenting time rights of a noncustodial parent in a

       paternity action, provides:


               (a) A noncustodial parent is entitled to reasonable parenting time
               rights unless the court finds, after a hearing, that parenting time
               might:


                        (1) endanger the child’s physical health and well-being; or


                        (2) significantly impair the child’s emotional development.


[13]   Indiana Code section 31-14-14-2 provides that “[t]he court may modify an

       order granting or denying parenting time rights whenever modification would

       serve the best interests of the child.” A party who seeks to restrict parenting-

       time rights bears the burden of presenting evidence justifying such a restriction.

       In re Paternity of W.C., 952 N.E.2d at 816. The burden of proof is the

       preponderance-of-the-evidence standard. Id.


[14]   In April 2017, the court found that parenting time between Mother and Child

       would significantly impair Child’s emotional development and well-being and,

       further, might endanger Child. See Appellant’s App. Vol. II p. 58. By the

       hearing in August 2018, Mother presented no evidence that that had changed.

       Here, Child, who has a learning disability and suffers from ADHD, has been

       cared for by Grandmother since he was three-and-a-half years old. Mother, on

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 12 of 16
the other hand, has only seen Child once, for one hour, in the past nine years.

The evidence also shows that when Grandmother tries to facilitate parenting

time, Mother becomes argumentative and abrasive, telling Child that

Grandmother is a “liar” and alleging that Grandmother “stole you from me.”

Tr. p. 24. Furthermore, Mother’s thirty calls over a single hour are evidence of

her belief that she can call and speak to Child whenever she wants, despite the

court’s order that parenting time “shall be on an agreed upon basis.”

Appellant’s App. Vol. II p. 58. And when Mother did agree to meet

Grandmother to exercise in-person parenting time, Mother did not show up

and, instead, mailed Child a card writing that she cannot talk to Child or visit

Child until after court. Finally, Mother’s actions evidenced by the four police

reports and YouTube video depict erratic behavior. To the extent that Mother

alleges that the court suspended her parenting time “because of her religious

beliefs,” we see no evidence of that. Nonetheless, even without considering any

evidence involving Mother’s religious activities, there is ample evidence to

support the court’s decision. Moreover, to the extent that Mother asserts that

Grandmother is trying to “alienate” Child from her, that does not seem to be

the case. Instead, the evidence shows that Grandmother worked with Mother

to schedule visits and took Child to the mall so that Mother could visit Child in

person, despite Mother’s nonstop calls just days before. Accordingly, we find

no abuse of discretion in the trial court’s decision to suspend Mother’s

parenting time until she completes a psychological evaluation and enrolls in

individual counseling.



Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 13 of 16
                                                II. Contempt
[15]   Mother next contends that the court erred by finding her in contempt for failing

       to pay child support as ordered and to correct Child’s birth certificate. Whether

       a party is in contempt of court is a matter within the trial court’s discretion, and

       we will reverse only if the trial court’s finding is against the logic of the evidence

       before it or is contrary to law. Mosser v. Mosser, 729 N.E.2d 197, 199 (Ind. Ct.

       App. 2000). To hold a party in contempt for a violation of a court order, the

       trial court must find that the party acted with willful disobedience. Piercey v.

       Piercey, 727 N.E.2d 26, 32 (Ind. Ct. App. 2000).


[16]   Mother challenges the court’s finding of contempt regarding child support by

       stating that “[n]ot only has [she] been paying child support, she was found to be

       in no arrears.” Appellant’s Br. p. 17. The purpose of establishing a regular

       schedule of support payments is one of “providing regular, uninterrupted

       income for the benefit of that parent’s children, who are in the custody of

       another,” and in this regard, “[t]he regularity and continuity of court decreed

       support payments are as important as the overall dollar amount of those

       payments.” In re Marriage of Bradach, 422 N.E.2d 342, 353 (Ind. Ct. App. 1981)

       (citing Haycraft v. Haycraft, 375 N.E.2d 252, 255 (Ind. Ct. App. 1978)). A

       noncustodial parent is required to make payments in the manner, amount, and




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 14 of 16
       at the time required by the support order, at least until such order is modified or

       set aside. Haycraft, 375 N.E.2d at 255.2


[17]   Here, Mother was ordered to pay $51 per week in child support. The evidence

       shows that Mother made “very, very sporadic payment[s] of support” and that

       Mother “made a substantial payment to get the [child] support caught up.” Tr.

       p. 21. On appeal, Mother does not dispute that she was very sporadic in her

       child-support payments or that she made a large one-time payment just before

       the hearing. Mother also does not provide any reason why she cannot pay her

       weekly child-support obligation of $51 per week with the income she earns from

       two jobs. As such, we find that the court did not abuse its discretion in finding

       Mother in contempt for failing to pay child support as ordered.


[18]   Finally, Mother argues that the court abused its discretion by finding her in

       contempt for failing to correct Child’s birth certificate. Specifically, Mother

       contends that she “provided proof of a good faith effort to amend” Child’s birth

       certificate. Appellant’s Br. p. 17. She did not. In 2007, Mother was ordered to

       correct Child’s birth certificate to show that Father was Child’s father. Since

       then, Mother obtained what looks like a “Frequently Asked Questions”




       2
        Mother also argues that the court erred by ordering her to pay attorney’s fees to Grandmother’s attorney.
       Mother does not present a cogent argument on this issue. See Ind. Appellate Rule 46(A)(8)(a). Nonetheless,
       we affirm the trial court’s holding that Mother was in contempt. Once a party is found in contempt, the trial
       court has inherent authority to award attorney’s fees as compensation for damages resulting from the other
       party’s contemptuous actions. Topoliski v. Topoliski, 742 N.E.2d 991, 996 (Ind. Ct. App. 2001), reh’g denied.
       Such authority includes the award of attorney’s fees by a party to enforce a child-support order. Id. Because
       Mother was found in contempt, the court did not err by awarding attorney’s fees to Grandmother.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019                  Page 15 of 16
       document from the California Department of Health regarding

       acknowledgement of paternity in January 2018 and sent Father a letter

       requesting that he sign a notarized statement of paternity in July 2018. See

       Appellant’s App. Vol. II pp. 68-79. At the hearing, Mother did not provide any

       evidence that she had contacted the California Department of Health and

       provided them with the order establishing Father’s paternity or that the

       California Department of Health had previously denied a request to correct

       Child’s birth certificate. We find that Mother has not made a “good faith

       effort” to amend Child’s birth certificate and as such, the court did not abuse its

       discretion by finding her in contempt for failing to correct Child’s birth

       certificate.


[19]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2110 | April 16, 2019   Page 16 of 16
