Michael W. Shipman v. Angela L. (Shipman) Tanksley (mem. dec.)
29A05-1706-DR-1213
Ind. Ct. App.Sep 27, 2017Background
- Parents divorced in May 2016; Decree awarded joint legal custody and a 2-2-5-5 shared physical custody schedule during summer, with primary physical custody to mother until summer break.
- Mother filed a Verified Petition to Modify (Aug. 2016) seeking modification of physical custody and parenting time (not legal custody), alleging children’s anxiety about time with father and a strained parent-child relationship; requested primary physical custody for mother.
- Court appointed a guardian ad litem (GAL), who investigated, interviewed children and others, and produced a report finding the children uncomfortable at father’s home, a strained/declining relationship, and recommending family therapy.
- At the January 2017 hearing, evidence (testimony and GAL report) described children’s anxiety about visits with father, poor parent-child interactions at father’s home, and persistent poor communication between parents. Mother’s counsel explicitly stated she was not seeking modification of legal custody.
- Trial court’s May 31, 2017 Order: reduced father’s parenting time (eliminated Monday/Tuesday overnights; authorizes one weeknight and alternating weekends), increased child support accordingly, ordered father to participate in counseling, and sua sponte changed joint legal custody to sole legal custody for mother.
- On appeal, court affirmed the parenting-time/physical-custody changes but reversed the sua sponte modification of legal custody, holding legal-custody change was not requested or tried by consent.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether modification of parenting time/physical custody was proper | Mother argued reduction necessary for children’s best interests due to anxiety, strained relationship, and GAL findings | Father argued reduction was improper and based mainly on parents’ poor communication, which preexisted the Decree and is not a proper basis alone | Affirmed: sufficient evidence (children’s wishes, strained interactions, GAL opinion) supported reducing shared 50/50 schedule to alternating weekends + one weeknight; best interests shown |
| Whether modification of legal custody (joint to sole) was proper | Mother did not seek legal-custody change in her petition and contended issue had been tried/was before court | Father argued court erred by modifying legal custody sua sponte because no party requested it and he lacked notice to litigate that issue | Reversed: court erred to modify legal custody sua sponte; no petition or consent put issue before the court |
Key Cases Cited
- Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2007) (in absence of special findings, appellate court reviews custody decision as a general judgment and will affirm if sustainable on any legal theory consistent with evidence)
- Kirk v. Kirk, 770 N.E.2d 304 (Ind. 2002) (appellate courts defer to trial court’s factual determinations in custody matters and will not reweigh evidence)
- Miller v. Carpenter, 965 N.E.2d 104 (Ind. Ct. App. 2012) (modifications of custody, parenting time, and support reviewed for abuse of discretion)
- Julie C. v. Andrew C., 924 N.E.2d 1249 (Ind. Ct. App. 2010) (legal-custody modification requires best interests and substantial change; courts may consider Section 15 factors re: joint legal custody)
- Bailey v. Bailey, 7 N.E.3d 340 (Ind. Ct. App. 2014) (trial courts generally may not modify custody sua sponte; parties must have notice and opportunity to litigate custody change)