Preview:

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

ATTORNEYS FOR APPELLANT: ANDREW Z. SOSHNICK JAIMIE L. ZIBROWSKI Baker & Daniels LLP Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: MICHAEL C. KEATING YVETTE M. LAPLANTE Keating & LaPlante, LLP Evansville, Indiana ROBERT E. ZOSS, SR. Bob Zoss Law Office Evansville, Indiana

FILED
Jun 24 2010, 9:30 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
K.K.B., Appellant-Respondent, vs. R.K.B., Appellee-Petitioner. ) ) ) ) ) ) ) ) )

CLERK

No. 26A05-0910-CV-595

APPEAL FROM THE GIBSON CIRCUIT COURT The Honorable Jeffrey F. Meade, Judge Cause No. 26C01-0605-DR-64

June 24, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE K.K.B. ("Mother") appeals from the dissolution court's Amended Order Entry awarding physical custody of her three minor children to R.K.B. ("Father") in the parties' dissolution action. Mother presents two issues for review: 1. Whether the trial court's sua sponte findings are supported by the evidence and whether the conclusions thereon are supported by the findings. Whether the trial court erred by failing to consider each of the factors enumerated in Indiana Code Section 31-17-2-8 when it awarded custody of the children to Father.

2.

We conclude that the evidence supports all but one of the findings and that Mother has not shown that the dissolution court failed to consider the factors listed in Section 31-172-8. But we also conclude that the evidence does not support the court's finding

regarding Mother's investigation of one child's allegation of sexual abuse by a cousin. As a result, we affirm in part, reverse in part, and remand. FACTS AND PROCEDURAL HISTORY Mother and Father were married on October 29, 1995. Three children were born to the marriage: L.B., born in 2001; S.B., born in 2002; and H.B., born in 2004

(collectively "the children"). After L.B.'s birth in 2001, the parties bought a house in Newburgh. Mother, a nurse, began working at Deaconess Hospital in 2001 or 2002. Before H.B. was born, Father stayed home with L.B. and S.B. while Mother worked. In 2002, Father started working at Toyota, though he took time off in 2004 during Mother's pregnancy with H.B. After S.B.'s birth, Mother began working part-time, on weekends only, to stay home and care for the children weekdays while Father worked.

2

The parties began to struggle financially after losing the tenant of a rental house they owned. Father asked Mother to increase her work hours, but Mother did not want to do so unless she lived closer to her family, who lived in Danville. As a result, both parties began to look for work near Danville. In August 2005, Mother left her job at Deaconess Hospital and began working at Clarian near Danville.1 She worked weekends at Clarian but lived at home with Father and the children during the week. Although Father applied for automotive plant jobs in and near the Danville area, he was not able to obtain employment similar to his job at Toyota. As a result, he decided not to move to the Danville area. By the time Father had decided not to relocate, Deaconess did not have any job openings for which Mother could apply so that she could live again in Newburgh. Mother's extended family in the Danville area included her father, a twin sister D.L, and another sister S.M. D.L. has three sons, and S.M. has a son and a daughter. Allegations had surfaced regarding sexual abuse perpetrated by two of D.L.'s sons. One allegation involved one of D.L.'s sons ("Son 1") either putting his mouth on the private parts of S.M.'s daughter or asking S.M.'s daughter to touch his private parts. In another allegation, Son 1 and S.M.'s son were watching a movie while sitting under a blanket. When D.L. checked on the boys, she lifted the blanket and saw that each had his hands on the other boy's clothed private areas. D.L. was babysitting in both of these instances. In a third allegation, Mother's mother once observed Son 1 on his knees in front of S.M.'s son, who had his pants down. And another of D.L.'s sons ("Son 2") was alleged to have

1

The parties do not direct us to evidence in the record showing which Clarian facility employed

Mother.

3

once been in a closet with another boy, M.H., and told him that he wanted to "sex [him] up." Appellee's Brief at 3. Father testified that Son 2 had been the victim of molestation at the home of his great aunt, R.H., when one of three boys humped him and said "I'm going to make you a girl." Transcript at 137. Mother and Father were aware of these sexual molestation allegations and, therefore, agreed not to let D.L. babysit for their children. On Saturday, April 22, 2006, Father heard S.B. crying in her room. When Father asked S.B. what was wrong, she replied, "I'm frustrated. My cousins hurted [sic] me and make me bleeded [sic]." Id. at 148. S.B. showed Father how her cousins "humped" her. Father relayed the report over the phone to Mother, who was working at Clarian at the time. When Mother returned home on Monday following her weekend shift at Clarian, Father made an appointment for S.B. to see a counselor, Lindy Duesner. Mother took S.B. to the counselor on April 27, the first available appointment. Ms. Duesner

recommended a pediatric examination, so Mother took S.B. for an examination by Dr. Robin Voyles within a few days of the appointment with Ms. Duesner. Dr. Voyles found no evidence of trauma. A CPS investigation conducted in Hendricks County concluded that the allegation was unsubstantiated.2 On May 6, while Father was home with the children and Mother was working at Clarian in central Indiana, S.B. fell off her bunk bed and hurt her leg. Father iced the leg and encouraged S.B. to stay off of it. Mother returned home after her weekend working, and, on May 8, she took S.B. to the emergency room. The doctor there found no broken

Neither Dr. Voyles' medical records regarding this examination nor the CPS report is included in the record on appeal.
2

4

bones. On May 12, Mother took S.B. to see Dr. Michael L. Kramer at Ortho Indy in Danville. At that time, S.B. refused to put weight on her leg, but no fractures were evident on her x-rays. On May 19, S.B. saw Dr. Kramer for a follow-up appointment. Dr. Kramer noted that S.B. had a "minimal limp" and opined, "I would guess she has an occult fracture of her tibia." Appellant's App. at 36. He recommended no treatment, indicating his expectation that the limp should disappear completely in a couple of weeks. Meanwhile, while Father was at work on May 8, Mother had moved with the children to a women's shelter in Danville. Mother, her father, and one of her sisters had driven to Newburgh and packed items to take to the shelter. Mother had left no note for Father, but shelter personnel had stated that they would call him. On May 9, someone from the shelter had called Father, had identified herself as a friend of Mother, and had told Father that the children were safe. While at the shelter, Mother filed a petition for a protective order, which was granted. Due to Mother's move to the shelter, Father had no contact with the children for nineteen days. On May 12, Father filed a petition for dissolution and a petition seeking maintenance, support, and custody of the children. On May 19, Mother filed a cross petition for dissolution and requested maintenance, support, custody of the children, and possession of the marital residence. On May 22, the parties appeared with counsel and submitted an agreement regarding Memorial Day parenting time. Father also filed his notice of his intention to seek custody of the children. On November 29, the parties appeared with counsel and entered into an agreement regarding a temporary parenting time schedule. On March 27, 2007, Mother requested a final hearing and the

5

appointment of a guardian ad litem ("GAL"). The court appointed Kathleen Johnson as guardian ad litem. On August 1, the court entered a final decree of dissolution of marriage ("Decree"). The Decree dissolved the parties' marriage and resolved their property issues. On January 16, 2008, the guardian ad litem filed her report. On various dates between July 14, 2008, and September 9, 2009, the court held a hearing on child issues. Following the hearing, the parties filed their respective proposed entries as requested by the court. On October 9, the court entered an Order Entry on child issues, awarding primary physical custody of the children to Father, setting out a parenting time schedule for Mother, and setting the child support amount to be paid by Mother.3 The Order Entry includes the following sua sponte findings by the court: FACTUAL CONSIDERATIONS: It is noted that neither party requested the Court find the facts specifically and state its conclusions thereon. However, the Court feels compelled to highlight a few of the many factors considered: First, the Mother's removal and taking of the Children to a shelter comes to mind. This was done after one of the Children had made allegations of sexual abuse by one or more of her cousins on the Mother's side. The Mother, without notice to the Father, and no notice of where she and the Children were, took the Children while he was at work, and moved to a shelter near her home town at or near Danville, Indiana. For approximately twenty (20) days the Father did not get to see the Children, and more importantly, the Children did not get to see their Father. The Mother admitted the Father did not physically abuse her or their Children. Coupled with this was what Father's counsel described as a "bogus" Ex Parte Protection Order the Mother procured against the Father. The Court notes that while the Order itself was legitimate since signed by a
The court subsequently issued an Amended Order Entry on October 19, 2009, which corrected the child support amount. Because the amendment did not materially alter the order with respect to the issues raised on appeal, for simplicity our references to the "Order Entry" include the Amended Order Entry.
3

6

judge, that much of the information used in obtaining the Order was in fact, bogus. Specifically, the Mother in her petition for the protection order alleged the Father had left "threatening cell phone calls[."] The Court would submit that any parent, upon returning home from work to find that their [sic] spouse had packed up and left with their three little girls, might perchance have several questions for that spouse. Perhaps, "where are you?"; "what in the world is going on:"; "where are the girls?"; "are they okay?", just to name a few. What the Mother put the Children through by taking them away from their Father in this manner and getting an order preventing him from contacting them is inexplicable and disturbing. The Mother's obvious disbelief of her daughter's allegations is another point that comes to mind. It is clear to this Court that the Mother did not want to believe what her daughter had alleged as it concerns inappropriate sexual activity of children in her Mother's family--activity that has not been sufficiently recognized or addressed, and a family that the Mother was wanting to, and did, move closer to. With regard to the daughter's allegations is the fact that the Mother obviously never really investigated the statements to see if they could be true. The Mother, a nurse no less, simply stated that a physician had inspected the child and had observed no signs of sexual abuse and that was good enough for her. However, questioning by the Court of a witness revealed that the child had not alleged vaginal penetration (that might have left evidence), but anal penetration (that would not have left evidence), something the Court believes a nurse would have known, should have known, or could have known with a little effort. Also curious was the Mother's response to this testimony-- absolutely no observable reaction. The Father's response--he immediately broke down crying and struggled to regain composure as the hearing continued. The Court could go on and on addressing a considerable number of factors that favor the Father in this case, but will suffice to list one more, that is, the number and types of extracurricular activities the Mother has the Children involved in. No consideration whatsoever was given for Father's parenting time. One example would be the Mother signing all three little girls up for cheerleading through a youth football league, which by the way, was not through the schools. What the Mother obviously does not, or chooses not, to understand is that she was setting the Father up to fail. In short, young Children should never be forced to choose between an activity and time with a parent. Parent[s] should beware [sic] of sacrificing their children's interests on the alter [sic] of their vindictiveness.
7

In sum, the Mother, with no notice or explanation, stole the Children away, then used a "bogus" protection order to keep the Father away. Next, she sought to press the advantage of having the Children with her by getting them entrenched in her hometown area and immersed in activities that filled their time and encroached on their time with their Father. The Father testified that if he were the primary residential parent he would not enroll the children in any extracurricular activities that in any way compromised the Children's time with their Mother. This Court believes him. Appellant's App. at 18-20. Mother filed a notice of appeal and a motion to stay pending appeal. The court denied Mother's motion to stay. DISCUSSION AND DECISION Mother contends that the dissolution court abused its discretion when it awarded primary physical custody of the children to Father. Child custody determinations lie within the sound discretion of the trial court. Klotz v. Klotz, 747 N.E.2d 1187, 1189 (Ind. Ct. App. 2001). We will reverse the trial court's decision only if it manifestly abused its discretion. Id. An abuse of discretion occurred if the trial court's decision was clearly against the logic and effect of the facts and circumstances, or reasonable inferences therefrom, that were before the court. Id. Issue One: Special Findings Mother first contends that the evidence does not support the findings of fact made by the dissolution court in the Order Entry. We observe that the findings are found at the end of the Order Entry, in which the court determined physical and legal custody, parenting time, child support, as well as providing for access between each parent and the children, a process for conflict resolution, counseling for the children, health insurance, mortgage payments, and attorney's fees. The Order Entry does not specify to which of these items the special findings apply, and arguably the findings could apply to more than
8

just the physical custody determination. But Mother's arguments on appeal challenge the dissolution court's findings solely with respect to the award of physical custody to Father. And the subject matter of the findings relate directly to child issues. Thus, we will limit our review of the findings and the record to the custody determination. In determining custody, the court was required to consider the factors listed in Indiana Code Section 31-17-2-8. That statute provides: The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following: (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. (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) [IC 31-17-2-8.5(b)] of this chapter.
9

Ind. Code

Download K.K.B. v. R.K.B..pdf

Indiana Law