MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                   Oct 23 2019, 9:03 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.


ATTORNEYS FOR APPELLANT
Michael H. Michmerhuizen
Casie J. Towsley
Barrett McNagny LLP
Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of:                                  October 23, 2019

Chad M. Heimann,                                        Court of Appeals Case No.
                                                        19A-DC-644
Appellant-Respondent,
                                                        Appeal from the Adams Circuit
        v.                                              Court
                                                        The Honorable Chad Kukelhan,
Crystal R. Heimann,                                     Judge
                                                        Trial Court Cause No.
Appellee-Petitioner.
                                                        01C01-1810-DC-48



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019                 Page 1 of 12
                                  Case Summary and Issue
[1]   Crystal Heimann (“Mother”) and Chad Heimann (“Father”) were married in

      2001, and Father filed for divorce in late 2018. Mother and Father adopted two

      daughters, K.H., and T.H. (“Children”).1 After a final hearing, the trial court

      awarded sole legal and primary physical custody to Mother and ordered Father

      to have supervised parenting time every week. Father appeals, raising one issue

      for our review which we restate as: whether the trial court abused its discretion

      by ordering Father to have supervised parenting time absent evidence

      demonstrating how parenting time would endanger Children’s physical health

      or emotionally impair Children. Concluding the trial court abused its discretion,

      we reverse and remand with instructions.



                              Facts and Procedural History
[2]   The parties were married on June 28, 2001. They adopted Children, and the

      family lived together in the same home. In September 2018, Mother and Father

      separated and Mother and Children moved out of the marital residence, while

      Father remained in the home. On October 1, 2018, Father filed a Petition for

      Dissolution of Marriage, claiming an irretrievable breakdown of the marriage.




      1
       Mother and Father also are caring for a foster child. He was not subject to the instant proceedings. See
      Transcript of Evidence, Volume I at 40.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019                   Page 2 of 12
[3]   The trial court held a provisional hearing, and Father requested joint legal

      custody of Children with Mother having temporary primary physical custody of

      Children. Concerning parenting time, Father proposed he be allowed to have

      the Children overnight from 3:00 p.m. on Saturday until 6:00 p.m. on Sunday.

      See Tr., Vol. I at 6. Mother disagreed with Father’s parenting-time request,

      stating that Father has “mental health issues that need to be worked out first[,]”

      id. at 18; that “[h]e’s become very abusive over the last several months[,]” id.;

      that “[h]e yells[,] hits people[,] [and] throws things[,]” id. at 19; and that “he. . .

      [is] very hostile and . . . full of anger and rage[,]” id. On November 15, 2018,

      the trial court granted Mother sole legal and primary physical custody of

      Children and entered its Provisional Order directing Father’s parenting time to

      be


              [e]very other weekend [on] Saturday for two hours . . . under
              therapeutic supervision by a licensed third party agency.
              Parenting time is restricted for [F]ather as evidence indicates he
              poses a threat to the mental and physical well[-]being of
              [C]hildren[.]


      Appellant’s Appendix, Volume 2 at 11, ¶ 3(a).


[4]   On January 9, 2019, the trial court held a final hearing on the petition for

      dissolution during which Father requested that the trial court grant him primary

      physical custody of Children and joint legal custody with Mother. However,

      Father testified that he was unable to comply with the trial court’s provisional




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 3 of 12
      order regarding parenting time because he had difficulties finding supervision

      that would comply with the provisional order.2 See Tr., Vol. I at 41-42.


[5]   Mother again disagreed with Father’s request, insisting that any parenting time

      given should be supervised. She also had concerns for Children if Father was

      granted primary physical custody stating,


               [Father] has been disruptive in the home . . . [by] holding me by
               the throat against the wall demanding I do what [Father] want[s].
               As [for] [C]hildren, . . . [Father] has spanked them; . . . he has
               picked them up and thrown them into their beds. . . . [Father is]
               someone who threatens to commit suicide every other month . . .
               he will sit and say that he hopes he blows his da** brains out and
               we come home and find [Father] in a puddle of blood.


      Id. at 60. At the conclusion of the final hearing, the trial court took the matter

      under advisement and entered an order that directed the following regarding

      Father’s parenting time: “[Father] shall have supervised visitation with the

      parties’ minor [C]hildren for a period of two (2) hours every Saturday

      commencing January 12, 2019. The supervisor shall be the [Mother’s] brother,

      Chance. The Court further orders the paternal grandparents may be present at

      the visitations.” Appellant’s App., Vol. 2 at 15. The trial court did not specify a

      date when the supervised parenting time was to end.




      2
        Per the trial court’s provisional order, Father was directed to have parenting time facilitated by a licensed
      therapeutic agency. Father contacted four facilities: three of which were unable to assist him because of either
      scheduling reasons or because he was paying for the service out-of-pocket; and one did not have a licensed
      therapist available for supervision.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019                    Page 4 of 12
[6]   On March 6, 2019, the trial court issued its Decree of Dissolution of Marriage,

      finding (among other things) that it is in the best interest of Children that

      Mother have sole legal and primary physical custody of Children with Father

      having supervised parenting time. The trial court ordered Father to continue to

      have supervised parenting time:


              [Father] should receive parenting time in accordance with the
              [c]ourt’s order dated [January 9, 2019]. The restriction on
              parenting time is due to [Father’s] failure to follow the [c]ourt’s
              past order regarding supervised parenting time and [the]
              allegations by [Mother] that [Father] has a violent past. The
              [c]ourt therefore finds that [Father] would be a physical and or
              emotional threat to [Children] and parenting should be
              supervised.


      Appealed Order at 2, ¶ 14. Father now appeals.



                                Discussion and Decision
                                     I. Standard of Review
[7]   Initially, we note that Mother did not file an Appellee’s Brief and therefore, “we

      need not undertake the burden of developing an argument on [her] behalf.”

      EBF Partners, LLC v. Novabella, Inc., 96 N.E.3d 87, 91 (Ind. Ct. App. 2018).

      Rather, we will reverse the trial court’s judgment if Father presents a case of

      prima facie error. Id. Prima facie error is defined as, “at first sight, on first

      appearance, or on the face of it.” Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 5 of 12
[8]   Here, the trial court entered findings of fact and conclusions thereon. We

      therefore apply a two-tiered standard of review: whether the evidence supports

      the findings and whether the findings support the judgment. Tompa v. Tompa,

      867 N.E.2d 158, 163 (Ind. Ct. App. 2007). When reviewing judgments with

      findings and conclusions, we “shall not set aside the findings or judgment

      unless clearly erroneous, and due regard shall be given to the opportunity of the

      trial court to judge the credibility of the witnesses.” Best v. Best, 941 N.E.2d 499,

      502 (Ind. 2011) (quoting Ind. Trial Rule 52(A)). A judgment is clearly

      erroneous when the record contains no facts or inferences to support it and after

      evaluating the record, we are firmly convinced a mistake has been made.

      Tompa, 867 N.E.2d at 163. When we make these determinations, we neither

      reweigh the evidence nor judge the credibility of the witnesses but view the

      evidence most favorable to the judgment. Id.


                                        II. Parenting Time
[9]   Father argues that the trial court abused its discretion when it issued its order

      restricting his parenting time to two hours of supervised parenting time per

      week without entering sufficient findings of fact to support its decision that his

      parenting time would endanger Children’s physical or emotional health.

      Specifically, he contends that his parenting time has been restricted based on

      unsupported allegations from Mother. Generally, parenting time decisions are

      committed to the sound discretion of the trial court. In re B.J.N. 19 N.E.3d 765,

      769 (Ind. Ct. App. 2014). Therefore, this court will review parenting time

      decisions for an abuse of discretion. Hatmaker v. Hatmaker, 998 N.E.2d 758, 761

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 6 of 12
       (Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs when the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court or if the court misinterpreted the law. Id.


[10]   In all parenting time controversies, courts must give foremost consideration to

       the best interests of the children. In re Paternity of C.H., 936 N.E.2d 1270, 1273

       (Ind. Ct. App. 2010), trans. denied. The right of non-custodial parents to visit

       with their children is a “sacred and precious privilege.” Appolon v. Faught, 796

       N.E.2d 297, 300 (Ind. Ct. App. 2003). For this reason,


               [e]xtraordinary circumstances must exist to deny parenting time
               to a parent, which necessarily denies the same to the child[,]
               [and] [i]f the trial court finds such extraordinary circumstances
               do exist, then the trial court shall make specific findings
               regarding its conclusion that parenting time would endanger the
               child’s physical health or significantly impair the child’s
               emotional development.


       Perkinson v. Perkinson, 989 N.E.2d 758, 765 (Ind. 2013).


[11]   Restriction of parenting time is governed by Indiana Code section 31-17-4-1(a),

       which provides, “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.” “Even

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

       the language to mean that a court may not restrict parenting time unless that

       parenting time ‘would’ endanger the child’s physical health or emotional

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 7 of 12
       development[, and] an order for supervision constitutes such a restriction.”

       Hatmaker, 998 N.E.2d at 761. A party who seeks to restrict a parent’s visitation

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

       The burden of proof is by a preponderance of the evidence. Id.


[12]   The trial court in the present case restricted Father’s parenting time to two

       hours of supervised time per week with Mother’s brother, Chance, serving as

       the supervisor. The trial court specifically found in its order that Father’s

       parenting time should be supervised and limited to two hours every week

       because Mother “alleg[ed] . . . that [Father] has a violent past[,]” and, therefore,

       Father would be a physical and or emotional threat to the [C]hildren. Appealed

       Order at 2, ¶ 14. We find, however, that the evidence in the record is

       insufficient to support such a finding.


[13]   Here, Mother testified to a number of unsupported allegations of abuse by

       Father. Among other things, she alleged that Father is full of anger and rage

       and has become very abusive. However, she did not provide any police reports,

       DCS reports, therapist reports, or reports by a guardian ad litem to demonstrate

       that parenting time between Father and the Children would not be in the

       Children’s best interests. The only evidence before the trial court regarding any

       endangerment to Children was Mother’s self-serving testimony. Additionally,

       she did not present any evidence of Children being concerned with their well-

       being while in the presence of Father. Instead, she only offered her testimony

       and did not provide additional testimony from other sources that could

       corroborate her contention that Father has a violent past.

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 8 of 12
[14]   Although Mother testified to Father’s abusive nature, she, nevertheless, allowed

       him to have parenting time with Children absent any supervision, which

       contradicts her assertion that she has concerns for Children’s safety with Father.

       Moreover, Father’s Mother, Cindy, and Mother’s brother, Chance, both

       testified that Father is not a danger to Children; they never saw Father abuse

       Children; and they believed Father to be a good parent. See Tr., Vol. II at 53-56.

       Based on the record, we conclude that Mother’s evidence does not support the

       trial court’s finding that Father is a physical or emotional threat to Children, see

       Tompa, 867 N.E.2d at 163, and the finding does not support the restriction that

       was placed on Father’s parenting time. Therefore, the trial court abused its

       discretion restricting Father’s parenting time to two hours per week.


[15]   Father also argues that the trial court’s finding that he failed to follow the trial

       court’s past order regarding supervised parenting time to support restricting

       Father’s parenting time was “clearly unreasonable and an invalid basis” to

       restrict his parenting time. Appellant’s Brief at 15. He maintains that his failure

       to follow the trial court’s order was beyond his control because he contacted

       four facilities that offered supervised parenting time services, and all four were

       not in compliance either for scheduling reasons, and did not allow self-pay, or

       because the facility did not employ a licensed therapist. See Tr., Vol. 2 at 41. On

       direct examination Father testified to the following:


               [Counsel]: Have you exercised any parenting time since the
               provisional hearing?


               [Father]: I have not.
       Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 9 of 12
        [Counsel]: Ok. Why not?


        [Father]: I tried all aspects and I was either met with the
        disturbance of they cannot do it on Saturday or they do not allow
        self-pay.


        [Counsel]: Ok. When you say they, who are we talking about?


        [Father]: Um, I contacted SCAN, I contacted Life Source in
        Fort Wayne, I contacted Parks right here in Decatur and Fort
        Wayne.


        [Counsel]: You mean Park Center?


        [Father]: Or Park Center, yes, I'm sorry. . . And I did contact
        Y.S.B. in Portland. That was the only agency that would allow it
        on Saturday and self-pay. The only problem with it is, the lady
        that was going to be doing the visit is not a licensed therapist.


        [Counsel]: Ok. So while it is a supervision facility. . . [s]he didn’t
        feel she had the correct licensing that the Order called for?


        [Father]: No, actually [Mother] brought it to everybody’s
        attention that they were not licensed therapist [sic].


        [Counsel]: Ok.


        [Father]: And she had a problem with it.


        [Counsel]: Ok. So you have made numerous attempts to. . .
        exercise this parenting time[?]



Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 10 of 12
               [Father]: Yes, I’ve even worked with D.C.S. and tried to find
               other places and as soon as I turned in the Court Order and they
               saw it was Saturday and self-pay either one of those two reasons
               is the reasons why I got rejected.


       Id. at 41-42.


[16]   To the extent that Father does not dispute that he failed to comply with the

       court’s provisional order by not obtaining a licensed therapist to supervise his

       parenting time, these unchallenged facts stand as proven. See In re B.R., 875

       N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by the trial

       court resulted in waiver off the argument that the findings were clearly

       erroneous), trans. denied. Although he attempts to justify how the trial court

       viewed his failure to comply by demonstrating that he tried to comply;

       however, we view this as a request to reweigh the evidence, which is not the

       province of this court. Tompa, 867 N.E.2d at 163.


[17]   However, we must evaluate whether Father’s failure to comply supports the

       conclusion that Father is a physical or emotional threat to Children.

       Consequently, the trial court did not establish a clear nexus between Father’s

       failure to comply with the provisional order and the physical and emotional

       endangerment of Children. Therefore, the trial court abused its discretion when

       it decided that Father’s violation of its provisional order was a factor in

       restricting his parenting time.


[18]   The evidence presented simply does not support a finding that Children’s

       physical and emotional health would be endangered by unsupervised parenting

       Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 11 of 12
       time with Father. For these reasons, we remand to the trial court with

       instructions to enter an order without the restriction. See Walker v. Nelson, 911

       N.E.2d 124, 130 (Ind. Ct. App. 2009).



                                              Conclusion
[19]   The evidence in the record does not support the trial court’s finding that

       unsupervised parenting time with Father would be a physical and emotional

       threat to Children and therefore, cannot support the judgment restricting

       Father’s parenting time to two hours per week. We therefore reverse and

       remand to the trial court with instructions to remove the restriction altogether.


[20]   Reversed and remanded.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-644 | October 23, 2019   Page 12 of 12
