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In re Paternity of G.G.B.W.

Court of Appeals of Indiana

July 26, 2017

In Re the Paternity of: G.G.B.W. a Minor Child,
v.
S.W., Appellee-Respondent. J.B., Appellant-Petitioner,

         Appeal from the Marion Circuit Court, The Honorable Sheryl Lynch, Judge, Trial Court Cause No. 49C01-1101-JP-3803

          Attorneys for Appellant John R. Maley Leah L. Seigel Barnes & Thornburg, LLP Indianapolis, Indiana.

          Attorneys for Appellee Darryn L. Duchon Indianapolis, Indiana Monty K. Woolsey Andrew R. Bloch Cross, Pennamped, Woolsey & Glazier, P.C. Indianapolis, Indiana.

          BAILEY, JUDGE.

         Case Summary

         [¶1] J.B. ("Father") and S.W. ("Mother") are the parents of one daughter, G.G.B.W. ("Child"). In 2015, Father petitioned to modify legal custody of Child, and subsequently filed a contempt petition and motion for rule to show cause in which Father alleged that Mother was in violation of a paternity decree. The trial court denied Father's petitions and motion, and ordered Father to pay a portion of Mother's attorney fees. Father now appeals.

         [¶2] We affirm in part, reverse in part, and remand.

         Issues

         [¶3] Father presents the following restated issues:

I. Whether the trial court articulated an erroneous interpretation of the Decree and thereby abused its discretion in failing to find Mother in contempt;
II. Whether the trial court abused its discretion in denying Father's petition to modify legal custody; and
III. Whether the trial court abused its discretion in ordering Father to pay a portion of Mother's attorney fees.

         Facts and Procedural History

         [¶4] Father and Mother had a brief relationship while married to other spouses, and Child was born in 2007. Mother remained married and Father subsequently remarried. In 2011, Father and Mother entered an Agreed Decree of Paternity concerning Child (the "Decree") that the trial court approved and incorporated into an order. The Decree contains the following provision relating to legal custody: "The parties shall share joint legal custody of [Child] . . . which shall be defined as follows: Mother must seek Father's input prior to Mother making any major medical, religious, or educational decisions for [Child]." Appellant's App. Vol. II at 47-48. The Decree also includes the following provision relating to vaccinations: "If the child attends a school that requires vaccinations for enrollment, and the child will be denied enrollment unless she receives the vaccinations, then the child will be given the required vaccinations for enrollment." Appellant's App. Vol. II at 51.

         [¶5] Child was not vaccinated following her birth. At the time of the Decree, Child attended a Montessori school that did not require vaccinations. The following year, upon Father's request, Child was to attend kindergarten at a public school. The school required that its students be vaccinated but, pursuant to Indiana Code section 20-34-3-2, the school allowed an unvaccinated student to attend if a parent executed a form claiming a religious objection to immunization. Mother sought Father's consent to sign the form, but Father did not consent. Mother then signed the form, and Child began attending the school unvaccinated. In subsequent years, Mother submitted the form without consulting Father, and Child has continued to attend the public school.

         [¶6] In early 2015, when Father learned that Child would be traveling on an extended European Disney Cruise, Father expressed concern to Mother about Child remaining unvaccinated. On May 18, 2015, Father petitioned to modify legal custody of Child as to medical decisions only, alleging a substantial change in circumstances in that Child had not received any vaccinations since birth. The next month, Father learned that his wife was pregnant, and on July 29, 2015, Father filed a contempt petition alleging that Mother was violating the Decree because she did not "vaccinat[e] [Child] pursuant to" the Decree and because she "falsely advised the school of a religious affiliation to avoid vaccinating the child." Appellant's App. Vol. II at 57.

         [¶7] During the pendency of Father's motion and contempt petition, Father and his wife became the parents of twins, a boy and a girl. The daughter was born healthy and could receive vaccinations on schedule, but the son could not be vaccinated due to a serious heart condition. Father was advised by a doctor that it was unsafe for the newborns to be around anyone unvaccinated, including Child. Acting on that advice, Father stopped exercising overnight parenting time and would not permit Child to physically meet the infants.

         [¶8] On March 3, 2016, Father filed a motion for rule to show cause. In the motion, Father asserted generally the same grounds for contempt contained in his petition and alleged that Child's health was at risk due to being unvaccinated. Father also alleged that he was unable to exercise overnight parenting time with Child because Child was unvaccinated and posed a risk to his infants.

         [¶9] The trial court held a hearing in May and June of 2016. At the hearing, Father called his son's doctor who testified in favor of vaccinations, and he called an Episcopalian priest who testified that the Episcopalian faith-Mother's faith- has no tenet against vaccinations. Mother called two expert witnesses who testified about the risks of vaccination and the ineffectiveness of vaccines.

         [¶10] On October 6, 2016, the trial court denied Father's petition to modify custody, leaving the Decree unchanged. The trial court also denied Father's contempt petition and related motion for rule to show cause, reasoning that Mother complied with the Decree when she claimed a religious objection to vaccinating Child. ...


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