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,
ATTORNEY FOR APPELLEE Michael N. Red Morse & Bickel, P.C.
Carl Montgomery ("Father") appeals the trial
court's order modifying custody of his daughter in favor
of Patricia Ann Montgomery ("Mother"). We reverse
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.
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.
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. Id. at 40.
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
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.
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.
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.
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
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
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.
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 sent a copy of this video to the GAL,
who viewed it before submitting a report to the trial court
on May 15, 2014. 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. 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
[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.
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 ...