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Moell v. Moell

Court of Appeals of Indiana

October 13, 2017

Ginger Moell, Appellant-Respondent,
v.
Stephen R. Moell, Appellee-Petitioner

         Appeal from the Lake Superior Court The Honorable John M. Sedia, Special Judge Trial Court Cause No. 45D01-1505-DR-3

          Attorney for Appellant Debra Lynch Dubovich Levy & Dubovich

          Attorneys for Appellee Sandra Moreno-Garcia

          May, Judge.

         [¶1] Ginger Moell ("Mother") appeals the trial court's order regarding custody of N.M. and W.M. (collectively, "Children"). She presents several arguments for our review, which we restate as:

1. Whether the trial court had authority to modify the parties' settlement agreements;
2. Whether the trial court abused its discretion when it modified the parties' mediated custody agreement regarding W.M.; and
3. Whether the trial court abused its discretion when it sua sponte granted N.M. authority over decisions regarding his exercise of parenting time; health care; and participation in school, extracurricular, and religious activities.

         We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶2] Mother and Stephen Moell ("Father") (collectively, "Parents") divorced on October 2, 2012. The dissolution proceedings resulted in three detailed, mediated settlement agreements regarding the custody and care of N.M. and W.M., born November 18, 1999, and October 17, 2003, respectively. Parents used a Parenting Time Coordinator to assist with co-parenting Children.

         [¶3] In 2013, Father remarried and moved approximately forty-five minutes away from Mother's residence. Children lived in Mother's residence the majority of the time. Children were heavily involved in extracurricular and religious activities, and many of those activities interfered with parenting time arrangements. On March 24, 2015, Father filed a petition to modify parenting time. Father filed an amended petition to modify parenting time on June 3, 2015.

         [¶4] With the assistance of the Parenting Time Coordinator, the parties entered into a Partial Agreed Order regarding Father's petition to modify parenting time, and agreed to use Dr. Marguerite Rebesco to "conduct counseling and therapy to help the parties communicate, cooperate and parent their children." (App. Vol. II at 72.) On February 22, 2017, Mother filed a motion for contempt based on Father's cancellation of one of Dr. Rebesco's appointments.

         [¶5] On March 10, 2017, the trial court held a hearing on Father's petition to modify parenting time and Mother's motion for contempt. The trial court interviewed Children in camera. On March 30, 2017, the trial court entered an order modifying parenting time:

1. Pursuant to the mediation agreements, entered as orders by the Court, [Mother] and [Father] maintain joint legal custody. All other provisions of all three mediation agreements pertaining to custody and parenting time, including those pertaining to right of first refusal, are vacated.
2. [N.W.] shall exercise parenting time, participation in school, extracurricular and religious activities as he shall determine is in his own best interests. [N.W.] shall also make all final decisions pertaining to his health care.
3. [Father] and [Mother] shall continue to exercise joint legal custody over [W.M.], with [Mother] making all final decisions pertaining to education and religious upbringing, including extracurricular activities associated with each, and [Father] making all final decisions over health care.
4. All issues pertaining to parenting time shall be governed by the Indiana Parenting Time Guidelines, including the provisions pertaining to Opportunity for Additional Parenting Time, except that [Father] shall have parenting time with [W.M.] each week from Thursday at 5:00 p.m. through Sunday at 7:00 a.m. For purposes of calculating summer and holiday parenting time only, [Mother] shall be designated as the custodial parent.
* * * * *
7. Kim Harmon is discharged of all duties as Parenting Time Coordinator and Dr. Marguerite Rebesco is discharged of all duties as counselor with the sincere ...

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