Jeffrey Alan Perry v. Julieann Perry (mem. dec.)
71A03-1703-DR-704
| Ind. Ct. App. | Nov 14, 2017Background
- Parents divorced in 2008; shared joint legal custody and equal parenting time of daughter E.P. (b. 2004).
- Beginning 2014, E.P. disclosed to her therapist incidents of physical and emotional abuse while with Father and expressed fear of Father; therapist reported concerns that E.P. was not safe in Father’s care.
- Court appointed a GAL and ordered a psychological custody evaluation by Dr. Tony Berardi; Dr. Berardi and the GAL recommended Mother receive sole legal and primary physical custody.
- Father changed counsel shortly before the January 2017 evidentiary hearing; counsel requested two continuances (one granted, second denied after counsel had not attempted to contact the evaluator despite having the 200‑page file).
- Trial court awarded Mother sole legal and primary physical custody, reduced Father’s parenting time to alternate weekends (Saturday morning to Sunday evening) plus Wednesday evenings, and ordered Father to pay ~$4,742 of Mother’s attorney’s fees.
- On appeal, the court affirmed denial of the continuance and the custody modification but reversed the attorney‑fees award because the trial court failed to consider the parties’ current financial resources.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying Father’s second continuance request | Perry (Mother) argued continuance denial proper because Father’s counsel made no adequate efforts and Mother had reviewed the file | Perry (Father) argued new counsel needed time to review a 200‑page evaluator file and the request was reasonable | Denial affirmed — counsel’s lack of effort and lack of shown prejudice meant no abuse of discretion (trial court questioned counsel about attempts to contact evaluator) |
| Whether trial court erred in modifying physical custody to grant Mother primary physical custody | Mother argued substantial change in statutory factors and best interests supported modification (therapist/GAL/evaluator concerns) | Father argued findings unsupported, credibility issues with GAL and evaluator | Modification affirmed — ample evidence (evaluator/GAL testimony, incidents of harsh discipline, school tardies, father’s reactive anger) showing substantial change and best interests favor Mother |
| Whether deviation from Indiana Parenting Time Guidelines (starting Saturday morning vs. Friday evening) was improper | Mother argued guidelines recommend alternate weekends from Friday to Sunday and evaluator/GAL recommended Guideline‑consistent time; court provided rationale for deviation based on Father’s anger issues | Father contended schedule was less than recommended without justification | Affirmed — court provided written explanation linking reduced overnight time to need for demonstrated progress in counseling; evidence supported deviation |
| Whether trial court erred in awarding Mother attorney’s fees without assessing parties’ financial resources | Mother sought fees and presented her attorney’s rate and total fees | Father argued trial court failed to consider current financial resources as required | Reversed in part — fee award vacated because court did not obtain evidence about current finances before awarding fees |
Key Cases Cited
- F.M. v. N.B., 979 N.E.2d 1036 (Ind. Ct. App. 2012) (standard for appellate review of discretionary family‑law decisions)
- Fields v. Fields, 749 N.E.2d 100 (Ind. Ct. App. 2001) (custody modification within trial court discretion)
- Mertz v. Mertz, 971 N.E.2d 189 (Ind. Ct. App. 2012) (definition of abuse of discretion)
- In re J.E., 45 N.E.3d 1243 (Ind. Ct. App. 2015) (no prejudice, no continuance abuse)
- Hess v. Hess, 679 N.E.2d 153 (Ind. Ct. App. 1997) (withdrawal of counsel does not automatically entitle party to continuance)
- In re B.J.N., 19 N.E.3d 765 (Ind. Ct. App. 2014) (trial court must consider parties’ financial resources before awarding attorney’s fees)