APPEAL FROM THE FULTON CIRCUIT COURT. The Honorable Richard Maughmer, Special Judge. Cause No. 25C01-0910-DR-467.
ATTORNEY FOR APPELLANT: ELDON E. STOOPS, JR., Law Offices of Eldon E. Stoops, Jr., North Manchester, Indiana.
ATTORNEY FOR APPELLEE: KRISTINA L. LYNN, Lynn & Stein, P.C., Wabash, Indiana.
BARNES, Judge. CRONE, J., concurs. BAKER, J., dissents with separate opinion.
Shelly Bailey (" Mother" ) appeals the trial court's modification of physical custody of her children in favor of Lance Bailey (" Father" ). We reverse and remand.
The sole issue we address is whether the trial court erred in modifying custody when neither party requested a modification of custody.
Mother and Father have two children from their marriage, born in 2007 and 2009. The marriage was dissolved in March 2010. In the final dissolution decree, Mother and Father were granted joint legal custody of the children. Mother was granted primary physical custody, with Father having age-appropriate visitation according to the Indiana Parenting Time Guidelines, with one additional weeknight visitation per week.
The parties had numerous disagreements, primarily regarding their children. In September 2011, Father filed a petition to modify custody, which the trial court denied in April 2012. In May 2012, the trial court ordered the parties to participate in mediation to resolve their numerous disputes. That attempt was unsuccessful. In August 2012, Father filed a contempt petition against Mother, alleging she had failed to pay a marital debt. In December 2012, Mother unilaterally began denying Father's visitation with the children, based on concerns about the children's behavior that she blamed on Father and other alleged misbehavior by Father. In that same month, Mother filed a petition to restrict Father's visitation. Father responded with a petition to hold Mother in contempt for unilaterally restricting his visitation. Mother later filed a contempt petition of her own against Father, claiming he had not participated in mediation as ordered.
The trial court held a hearing to address Father's two contempt petitions, Mother's contempt petition, and Mother's petition to restrict visitation. The parties presented evidence and testimony regarding Mother's unilateral decision to restrict visitation and alleged incidents surrounding that decision, as well as the unpaid marital debt. Father testified, denied any wrongdoing, and stated that he wanted to be granted makeup visitation days for visitation Mother had withheld, but at no time did he state that he wanted shared physical custody of the children or any kind of modification of the existing physical custody ...