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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: DAWN E. WELLMAN MICHAEL C. COOLEY Allen Wellman McNew Greenfield, Indiana ATTORNEY FOR APPELLEE: THOMAS M. THOMPSON Thompson Law Office Connersville, Indiana

IN THE COURT OF APPEALS OF INDIANA
WENDY STAMM, Appellant-Petitioner, vs. MATTHEW STAMM, Appellee-Respondent. ) ) ) ) ) ) ) )

No. 21A05-0607-CV-401

APPEAL FROM THE FAYETTE CIRCUIT COURT The Honorable Daniel L. Pflum, Judge Cause No. 21C01-0503-DR-190

June 12, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Wendy Stamm appeals the trial court's Order dissolving the marriage between her and Matthew Stamm, dividing the marital estate, and establishing custody and parenting time for their two children. On appeal, Wendy raises four issues, which we restate as: (1) whether the trial court abused its discretion in granting Wendy primary physical custody of the children, but ordering that Matthew have an amount of parenting time equal to that which Wendy previously enjoyed; (2) whether the trial court abused its discretion in ordering that Wendy and Matthew have joint legal custody of their children; (3) whether the trial court abused its discretion in conditioning its grant of primary physical custody to Wendy on her remaining in Fayette County; and (4) whether sufficient evidence supported the trial court's order that the parties pay $6,746.91 to Matthew's parents. Concluding that the trial court acted within its discretion in establishing the physical custody arrangement and in imposing the condition upon its order of physical custody, we affirm the trial court's order with regard to these issues. However, we conclude that the trial court abused its discretion in ordering joint legal custody, and we reverse the trial court in this respect and remand with instructions to grant sole legal custody to one of the parents. We also conclude that insufficient evidence supports the trial court's finding that the parties owe Matthew's parents $6,746.91, and reverse the trial court's order in this respect. Facts and Procedural History Matthew and Wendy were married on June 30, 1990. During this marriage, the parties had two children, G.S., who was born in August 1993, and A.S., who was born in March 1998. In 1996, Wendy gave birth to a still-born child. After their marriage, Matthew and 2

Wendy lived in Indiana until 1993, in Illinois from 1993-94, and in Pennsylvania from 199497. According to both parties, the tragedy of the still-birth in 1996 signaled the decline in their marriage. Wendy felt that Matthew and his family blamed her for the tragedy, as evidenced by comments made to her by Matthew's mother and by the fact that Matthew forced Wendy to pay the related medical expenses out of her personal I.R.A. Shortly after the still-birth, the parties moved to Delaware, where they lived from 1997-2004. In September 2004, Matthew, who was unemployed, returned to Indiana and moved into his parents' home. A.S. and G.S. moved to Indiana in November, and began attending school in Fayette County. Wendy returned to Indiana in December 2004, at which point the family moved into a home owned by Matthew's grandmother. Apparently, when they left Delaware, Wendy and Matthew had intended to ultimately move to the Indianapolis area. However, Matthew obtained employment in Fayette County at a significantly higher salary than that for a job he had held for a short time in Indianapolis, and decided that it would be better to remain in Fayette County. Wendy testified that in March 2005, after she asked Matthew to sign separation papers, Matthew became extremely upset and choked her. Following this incident, Wendy moved out of Matthew's grandmother's home and rented an apartment in Fayette County. Shortly after filing her petition for divorce, Wendy obtained a court order that G.S. and A.S. attend counseling sessions, which were conducted by Sheila Marshall, and that the family undergo a custody evaluation, which was conducted by Dr. Bart Ferraro. As a result of his observations during the custody evaluation, Dr. Ferraro recommended that Wendy be awarded sole legal and primary physical custody, and that all Matthew's visitation be 3

supervised. Dr. Ferraro based this recommendation on his finding that: At this time, it is felt that Mr. Stamm's potential to alienate and behave in an emotionally abusive fashion with the children is great. His inability to recognize and alter this leads to the dual recommendation that Mr. Stamm be encouraged if not ordered by the court to choose from the list of experienced therapists provided below in order to pursue a course of intensive psychodynamic individual psychotherapy aimed at addressing and altering aspects of his personality and parental functioning which underlie and negatively impact his capacity to parent the couple's sons in a healthy and emotionally attuned fashion. Exhibit 1, p. 75. Wendy and Matthew both testified at trial, predictably giving completely different characterizations of their relationship and of events during their marriage. At trial, Wendy called Dr. Ferraro, Marshall, Kathryn 1 Schlichte, a former teacher of G.S. and A.S., and Kelly Raywalt, a personal friend of Wendy. Matthew called Sue Barth, the principal at G.S. and A.S.'s school. The following relevant findings of fact and conclusions of law entered by the trial court adequately summarize the evidence introduced at trial: 10. After the tragedy of giving birth to their still-born daughter in 1996, the parties' marriage began to erode. Wendy Stamm became more withdrawn from the family. Matthew J. Stamm's mood worsened after the death of their daughter and he became more controlling and bullying of Wendy Stamm. . . . Wendy Stamm was required to buy all groceries, children's diapers, formula, clothing, household goods and gasoline for her own vehicle from the sum of $400.00 from the mid-1990's until Wendy Stamm became employed full-time in mid-2004. The parties' relationship worsened and developed into a physically hostile relationship by 2001. Matthew J. Stamm threw wife's glasses and a book out of the vehicle in front of the children when traveling back to Pennsylvania from Indiana after Thanksgiving. *** 19. [Following their separation] Wendy Stamm believed the parties had an agreement about the time to be spent with the children. Once Matthew J. Stamm learned that Wendy Stamm had filed a Petition for Protective Order,
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At different points in the record, Ms. Schlichte's name is spelled "Catherine" and "Kathryn."

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Matthew J. Stamm refused to allow Wendy Stamm to see the children for approximately five (5) weeks except on a limited basis. 20. Matthew J. Stamm refused to allow Wendy Stamm to talk to the children on the telephone and she ultimately dropped notes off through the Principal . . . so that the boys would be aware that she had not forgotten them. 21. It was not until May 10, 2005 after a Court Order was Wendy Stamm permitted to see the children regularly. 22. Wendy Stamm testified to repeated incidents since separation in which Matthew J. Stamm has made cruel, disparaging or obscene remarks about her in front of the children. Matthew J. Stamm has spit at Wendy Stamm and called her extremely obscene and disparaging names in front of the children. 23. Matthew J. Stamm is usually ten to fifteen minutes late to the pick-up and drop-off but then will not allow the children out of his vehicle for another five and ten minutes. *** 27. Matthew J. Stamm testified that he was very upset about the cost of having an evaluation done with Dr. Ferraro in Indianapolis, as he had been told by his prior counsel that the evaluation would be done in Richmond and would cost only a few hundred dollars. 28. At Matthew J. Stamm's initial meeting with Dr. Ferraro, Matthew J. Stamm insisted on having a fee contract that stated the full cost of the evaluation. Ferraro refused and insisted on a contract that clearly contained a number of contingencies. 29. Matthew J. Stamm's concerns about Ferraro's fees were ultimately confirmed as Ferraro cost the parties in excess of $11,000. 30. Matthew J. Stamm testified that the hostility that developed between himself and Ferraro at their initial meeting continued throughout the evaluation process and [he] did not cooperate fully in the evaluation process. 31. The hostility between Matthew J. Stamm and Ferraro is reflected in Ferraro's recommendations to the Court, which include a recommendation that Matthew J. Stamm's visitation with his children be supervised by a counselor and not include overnights. The Court, therefore, puts very little credibility in Ferraro's recommendations. 2 *** 38. Both children expressed concerns to Ferraro during the evaluation that Wendy Stamm hits them and has called the police on them. *** 41. Both children expressed to Ferraro their desire to remain living with Matthew Stamm. Curiously, Ferraro believes it would be harmful for these
Although the wording of this finding may so suggest, we do not interpret this finding to mean that the trial court gave little credit to Dr. Ferraro's report merely because it recommended that visitation be supervised. Instead we interpret the finding to explain that the trial court gave the report little credibility because of the hostility between Dr. Ferraro and Matthew.
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children to speak with the Court in its chambers regarding their wishes. Ferraro believes that only one with his level of training and education can appropriately handle such a situation. 42. Shelia Marshall described Matthew J. Stamm as operating with rigid distortions of reality and that Wendy Stamm was passive and filled with selfdoubt. Matthew J. Stamm has attempted to convince Ms. Marshall that Wendy Stamm had abandoned the children and in fact, had the children telling the counselors the same thing. When challenged, Matthew J. Stamm admitted that there was no abandonment. 43. Ms. Marshall indicated that Matthew J. Stamm had no concern that the children were being disrespectful, dismissive or disregarding of Wendy Stamm. Wendy Stamm was always wrong in Matthew J. Stamm's eyes. 44. Mrs. Marshall stated that Matthew J. Stamm was incapable of containing his own emotions and not allow[ing] them to spill negatively onto the children whether it was destructive or not. 45. Kathryn Schlichte stated that she had problems with Matthew J. Stamm at school. She heard him on multiple occasions make inappropriate comments about Wendy Stamm in front of her and other staff members. Eventually, [G.S.] was referred to the school counselor and the counselor reported to Mrs. Schlichte that she had difficulty working with Matthew J. Stamm because he tried to influence [in] what form and [in] what context the counseling sessions should occur. *** 47. Matthew J. Stamm stated that if he were awarded custody of the children then their lives would not be interrupted significantly. They would continue to reside in [Fayette County]. . . . 48. Wendy Stamm stated that she would move the children somewhere toward Indianapolis even though there will be no family in the area. . . . Wendy Stamm did not specify where the children would attend school if she were to be awarded custody, but she gave examples of several schools in the Indianapolis area, which she believes would all be better for the children. . . . *** Conclusions of Law *** 3. In considering the wishes of the children, as expressed in the record, to live with Matthew J. Stamm, with more consideration given to [G.S.] due to his age, the Court believes it is in the best interests of the children to continue to live in Fayette County. 4. The children have already adjusted well to their home, school, and community. It is in the children's best interests to remain in this environment where there is evidence that they have flourished academically, athletically and socially. *** 6

6. The Court did take into account the recommendations made by the custody evaluator, Dr. Bart Ferraro. However, the Court does not follow his recommendations as his conclusions are not supported by all the evidence in this case. The Court takes particular exception to Ferraro's concern over the Court speaking with the children regarding their wishes in this case, when it is the Court that is given the ultimate legal responsibility of deciding the issue of custody and the legislature has directed the Court to consider the wishes of the children. 3 Appellant's App. at 6-12. Based on these findings and conclusions, the trial court ordered that Matthew and Wendy have joint legal custody of G.S. and A.S., that the children "shall remain in Fayette County," and that "[s]o long as Wendy Stamm resides in Fayette County the children will reside with her." Id. at 13. The trial court ordered that Matthew "shall have parenting time that at a minimum shall include that which is provided by the Indiana Parenting Time Guidelines and that which Wendy Stamm enjoyed during the 2005-06 school year." 4 Id. at 50. According to the trial court's findings of fact, during this school year, Wendy "parented the children every other weekend and on Tuesday and Thursday evenings. The children arrived at Wendy Stamm's home at 7:30 p.m. on Tuesday and Thursday evenings." Id. at 9. The trial court also ordered that Matthew undergo counseling "for the disorder noted by Sheila Marshall and the effect it is having on the children and shall follow of the recommendations made by the counselor and cooperate in all respects." Id. at 12. Wendy

We note our puzzlement with this finding, as Dr. Ferraro's opinion was clearly in no way binding on the trial court, which is statutorily authorized to conduct such an interview. Ind. Code

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