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Montgomery v. Montgomery

Court of Appeals of Indiana

September 8, 2016

Carl Wayne Montgomery, Appellant-Petitioner,
Patricia Ann Montgomery, Appellee-Respondent.

         Appeal from the Clark Circuit Court The Honorable Vicki Carmichael, Judge Trial Court Cause No. 10C04-0911-DR-256

          ATTORNEY FOR APPELLANT Karen Yvonna Renfro New Albany, Indiana

          ATTORNEY FOR APPELLEE Michael N. Red Morse & Bickel, P.C. Indianapolis, Indiana

          Barnes, Judge.

         Case Summary

         [¶1] Carl Montgomery ("Father") appeals the trial court's order modifying custody of his daughter in favor of Patricia Ann Montgomery ("Mother"). We reverse and remand.


         [¶2] The issues before us are:

I. whether the trial court's decision to modify custody is supported by the evidence; and
II. whether the trial court properly ordered Father to pay $7, 500.00 towards Mother's attorney fees.


         [¶3] During the parties' marriage they had one child, A.M., who was born in November 2008. In November 2009, Father petitioned for divorce in Clark County, based on the parties' residence in Clarksville. Mother moved to Minnesota and was granted provisional primary custody of A.M. but frequently interfered with Father's parenting time. In August 2011, the trial court entered an emergency order transferring custody of A.M. to Father, but A.M. remained in Minnesota with Mother. On June 19, 2012, the trial court entered a final dissolution decree in which Father was granted sole legal and physical custody of A.M., and the decree ordered Mother to deliver A.M. to Father immediately. The decree further specified, "law enforcement officials in Minnesota or elsewhere are hereby ordered to assist with this endeavor, as it is presumed that [Mother] will not be cooperative." App. p. 25. Additionally, Mother was not granted any parenting time due to her failure to appear at the final dissolution hearing and her prior interference with Father's parenting time. In July 2012, Mother appeared before the trial court and filed a request for parenting time. In November 2012, the parties agreed to a parenting time schedule that was approved by the trial court; the agreement and order granted parenting time to Mother in accordance with the Indiana Parenting Time Guidelines where significant distance is a factor. This order did not alter the award of sole legal custody to Father.

         [¶4] At some point, Mother moved to Wisconsin and began living with Gary Best. On August 23, 2013, Father filed a rule to show cause and motion to modify parenting time. The motion alleged in part that Mother failed to pay Father $8, 296.24 in attorney fees she had previously been ordered to pay and $2, 500.00 in damages awarded to Father. The motion further alleged Mother had not been paying the full amount of child support she had been ordered to pay. The motion further stated that Mother was living with a boyfriend, i.e. Best, who had at least two convictions for battery in Wisconsin and/or Minnesota, possibly involving domestic partners, and that this warranted an alteration of Mother's parenting time. On September 28, 2013, Father filed a petition for a protective order against Mother, alleging she was stalking him by repeatedly sending harassing text messages. Also, Father alleged that Mother's "boyfriend assaulted my daughter on her last visit & I am pursuing criminal action against him . . . ." Id. at 38. Although the CCS indicates that a hearing was scheduled on Father's rule to show cause and motion to modify parenting time for October 28, 2013, there is no indication that the trial court ever ruled on the motions. As for the protective order request, on November 27, 2013, the trial court entered a "Joint Temporary Restraining Order Issued Under Trial Rule 65(E)(2)" at the parties' mutual request, precluding each party from harassing or battering the other or coming onto the other's property.[1] Id. at 40.

         [¶5] On December 17, 2013, Father filed an "Emergency Motion to Modify Parenting Time, " in light of Mother's approaching parenting time for the holidays. Id. at 42. In the motion, Father alleged that A.M. was afraid of Best and that A.M. had told Father Best previously struck A.M. and Mother while A.M. was sitting in Mother's lap. The motion also stated that Father took A.M. to a psychologist and counselor, Meg Hornsby, who believed A.M. had not fabricated the battery incident or her fears of Best. On December 27, 2013, the parties' parenting time coordinator, Rebecca Lockard, filed an entry with the trial court stating Mother should have parenting time with A.M. from December 28, 2013 through January 4, 2014. Lockard's entry also stated that she was aware of Father's accusations against Best and Hornsby's concerns, but that "Child Protective Services investigated the incident and found no reason to be involved or supervise any contact between the child and Gary Best." Id. at 44. However, Father refused to deliver A.M. to Mother at that time.

         [¶6] On January 14, 2014, the trial court held a telephonic pretrial conference with the parties. During the hearing, Mother denied any physical abuse or threat of abuse by Best against her or A.M. After the hearing, the trial court ordered that Mother be granted makeup visitation time beginning on January 18, 2014, for a two-week period. The trial court also appointed a guardian ad litem ("GAL"), Brittany Wilson, to investigate the case and submit a report to the court.

         [¶7] On January 15, 2014, Hornsby sent a letter to the trial court. In the letter, Hornsby recommended that Best not be present during any of Mother's parenting time with A.M. based on A.M.'s reports of physical abuse by Best. Hornsby also recommended that Father and Mother work with her (Hornsby) to develop a safety plan for A.M.

         [¶8] On January 16, 2014, Father filed, in Wisconsin, a request for a temporary restraining order preventing Best from having any contact with A.M. The Wisconsin court granted the request, effective through January 27, 2014. Also on January 16, Father filed in Indiana a "Renewed Motion for Modification of Order for Parenting Time or in the Alternative Motion for an Amended Parenting Order to Include a Safety Plan." Id. at 57. In response to this latest motion, the trial court entered an ex parte order preventing Best from being present for any parenting time between Mother and A.M. and scheduled another pretrial conference for January 28, 2014.

         [¶9] During the conference on January 28, 2014, Mother again denied any physical abuse by Best. After the hearing, the trial court entered an order directing that Mother be allowed two weeks of parenting time beginning February 1, 2014, and without any restrictions on Best being present. Mother did end up having two weeks of parenting time in February, delayed by one week for weather concerns and not Father's actions.

         [¶10] Mother was granted another week of parenting time in April 2014. Before that visitation was to occur, the GAL wrote a letter to the trial court expressing concern that Best should not be present during any parenting time. The GAL also recommended that Father provide Mother with medical and schooling information for A.M., which he had not been doing. The trial court did not enter any order restricting Best from being present during parenting time in response to the GAL's letter, and the parenting time took place as scheduled.

         [¶11] Meanwhile, Mother's attorney filed a subpoena with Hornsby, requesting copies of A.M.'s counseling records. Hornsby resisted this subpoena and sought a protective order, but the trial court denied it and required Hornsby to provide the records. She never did so, however.

         [¶12] At the conclusion of Mother's parenting time in April 2014, she went to her attorney's office in Indianapolis and arranged for a video recording to be made of A.M. without A.M.'s knowledge, interacting with Mother, Best, and Mother's attorney. In the video, Mother, A.M., Best, and Mother's attorney are eating pizza together in a conference room. A.M. sat next to Best and freely interacted with him without apparent fear. A.M. referred to Best as "dad" or "daddy." Ex. 1. After a while, Mother left the room on the pretense of having to put more money in a parking meter. A.M. initially wanted to go with Mother, but she told A.M. to stay in the room. Then, Best said he had to go to the restroom. Again, A.M. wanted to go with him but he told her it was improper for her to do so, and she stayed in the room alone with Mother's attorney. As Best was leaving, A.M. said, "I love you in the whole planet." Id. Mother's attorney then engaged in conversation with A.M. A.M. said that it was her "dream" to stay with Mother and that Best had told her that her dream would come true. Id. Mother's attorney asked A.M. whether she was afraid of Best, and she responded, "Carl wants me to believe I am but I am not." Id. Mother's attorney also asked whether Best had ever hurt her and A.M. responded, "No. Carl just wanted me to ask him why." Id. A.M. denied or did not remember having ever talked to Hornsby. A.M. stated that she did not tell the GAL that she wanted to live with Mother because she was afraid of making the GAL mad. She also claimed to be sad that she was going back to Father's house that day. A.M. also denied having been told by someone else to say the things she said to Mother's attorney.

         [¶13] Mother's attorney sent a copy of this video to the GAL, who viewed it before submitting a report to the trial court on May 15, 2014.[2] Among other things, the GAL noted having reviewed a recent criminal case against Best in Wisconsin for third degree felony assault resulting in serious bodily injury and that she was troubled by the behavior it described, though it was committed against a co-worker.[3] The GAL also noted that Father had improperly been withholding information from Mother regarding A.M.'s education, health care, and other issues, and that he needed to stop doing so. The GAL also had concerns that Mother was attempting to portray Best to A.M. as her real father while referring to Father as "Carl, " which, indeed, would seem to be reflected by the video made in Mother's attorney's office. The GAL recommended in part:

[Mother] should continue to have parenting time as ordered by the Court. However, Gary Best should not be present for any parenting time with [A.M.] at this time. Of course, I can never say for sure that this incident where Gary hit [A.M.] occurred, however, [A.M.]'s demeanor and the details she revealed lead me to believe something happened at [Mother]'s home. [A.M.]'s allegation combined with Mr. Best's arrest and subsequent guilty plea for Felony Assault, give me cause for great concern with regard to [A.M.]'s safety with Gary present. To be clear, I am not limiting [Mother]'s parenting time with her daughter. I believe that [Mother] should be able to exercise her parenting time and make arrangements such that Gary is not present for the time being.

App. at 69.

         [¶14] On May 13, 2014, Mother filed a petition to modify child custody in her favor. In addition to moving to modify custody, Mother filed a motion in limine to exclude any reliance upon Hornsby's opinions regarding A.M. because of Hornsby's refusal to supply counseling records to Mother and her attorney. Unfortunately, and after a failed attempt at mediation, the trial court did not begin conducting a hearing on the petitions until May 18, 2015. In the meantime, Father and his attorney at the time did not cooperate with the parenting time coordinator, Lockard, with respect to scheduling summer 2014 parenting time for Mother with A.M., and none took place until October 2014. In total, under the Indiana Parenting Time Guidelines, based on A.M.'s age and ...

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