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Date: 08-20-2024
Case Style:
Quinisha L. Williams v. Willie Cardona-Feliciano
Case Number: 43D04-2109-DC-282
Judge: Christopher D. Kehler
Court: Superior Court, Koscisko County, Indiana
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Warsaw, Indiana family law lawyers represented the Plaintiff and Defendant in a child custody divorce case.
[¶2] On October 13, 2021, Mother petitioned for dissolution of her marriage to Father. At a provisional hearing conducted in March of 2022, Mother was
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awarded the sole legal and primary physical custody of Children; Father did not appear at that hearing. Father was awarded parenting time consisting of eleven hours each Saturday and ordered to pay child support. On May 30, 2023, Mother filed a Notice of Relocation, requesting that Children be relocated with her to Alabama; Mother averred that both she and Father had extended family there. Mother further averred that Father had not been exercising his parenting time. On June 6, Father filed his objection to Mother's Notice of Relocation. Mother filed requests that two witnesses appear remotely; the trial court summarily denied the requests.
[¶3] On September 26, the parties appeared for a final hearing, with Mother represented by counsel and Father appearing pro-se. Mother presented evidence that Father had pled guilty in 2020 to Domestic Battery, enhanced to a Level 6 felony because it was committed in the presence of a minor child. He had struck Mother in the head with a glass vodka bottle and Mother required hospitalization and staples in her head. Father had received a sentence of one year in a county jail. Mother also presented evidence that, in 2022, Father had agreed to plead guilty to Intimidation, as a Level 6 felony, upon dismissal of a higher-level felony charge. This stemmed from an incident in which Mother attempted to leave Father and he threatened Mother with a knife, again in the presence of a minor child. Father received a sentence of eighteen months in jail, with all but 120 days suspended. Following his conviction for Intimidation, Father was subject to a No Contact order prohibiting his contact with Mother, effective until February 28, 2024.
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[¶4] Mother testified that the eldest of Children had been born in Alabama in 2018, where Mother ran a printing business after her discharge from the Marine Corp. Mother had several relatives there, including her two older children, and Father had an older son there. In May of 2018, Mother and Father were married in Alabama. Soon thereafter, Father traveled to Indiana for work. According to Mother, she came to Indiana for a "visit" in 2018 but was "trapped" by Father. (Tr. Vol. II, pg. 56.) Mother testified that Father took her vehicle, driver's license, debit card, and cell phone, leaving Mother and the infant to stay in a hotel. The couple located permanent housing and had two more children, born in 2019 and 2021. Mother did not return to live in Alabama.
[¶5] Mother testified that, although Father had only two felony convictions, his abuse of her had been pervasive throughout their relationship. Mother's counsel asked that Mother explain the history of domestic violence, whereupon the trial court advised that Mother had already been given provisional custody of Children. Father responded: "Yeah, I no got [sic] an issue with that. She can have the kids." (Id. at 64.) The court then admonished "we don't need testimony on those issues." (Id. at 65.) However, because Mother objected to Father having overnight visits, her counsel continued to elicit testimony relative to Father's treatment of Mother, Children, and Mother's older children.
[¶6] Mother testified that Children had witnessed abuse on an almost daily basis; they were afraid of Father, but also had "mixed emotions" and would "love Dad naturally." (Id. at 73.) According to Mother, the youngest child had nightmares and was in therapy because of the incidents she had witnessed.
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Mother testified that Father beat her severely during the second pregnancy but did not beat her during the third pregnancy; she attributed this to his pending battery charge. However, according to Mother, Father refused to bring home sufficient food and allocated snacks to only his children, so that Mother would forgo eating to give portions to her older children. Also, she testified that Father would threaten to return to his native Puerto Rico or "put her in the hospital" if she did not comply with his wishes. (Id.)
[¶7] Michelle Campbell, MSW, testified that she was providing therapy to the eldest of the couple's children and also to Mother's two prior-born children, because of their exposure to domestic violence. Campbell had diagnosed five-year-old A.C. with post-traumatic stress disorder ("PTSD"); she experienced recurring fear that Mother would die after witnessing Father hold a knife to Mother. Campbell also testified that the older children had reported "multiple instances of domestic violence," and Campbell opined that, based "on the older girls' reports," she believed that Father could pose a physical threat to Children. (Id. at 91, 96.) Campbell also testified that she had reviewed reports from the Department of Child Services ("DCS"), substantiating Father's neglect of Children.
[¶8] Demetria Futch, the maternal grandmother of Children ("Grandmother"), testified that she was willing to provide a place for Mother and Children to stay in Alabama. She testified that she had observed "plenty of injuries" on Mother and also that Father had once put Mother's "head through a wall." (Id. at 106.)
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She described Father as having "anger patterns" and claimed that he had been responsible for holes in the wall and a broken door frame. (Id. at 107.)
[¶9] After Mother rested her case, Father was afforded the opportunity to present his case. He did not call witnesses, but addressed the court in pertinent part as follows:
Thank you. I'm not a perfect - perfect guy, I know I'm not the better human [in] this world, but I have everyday I'm trying to do the best that I was yesterday and I made a mistake with her, yeah, I pay for. I've been in jail, I'm [sic] accept it, but I believe if somebody punched you a couple times, you can defend yourself for somebody to - to you being hit. You know? Sometimes you get tired of that. But at this point, the only - I want to - I just really want, is just have that - my divorce done and spend some time with my kids. And the other thing I'm worried about it she move to Alabama is because her momma, she smoke weed, she have too many mens [sic] when she was telling me. I telling you this thing because of her. And her mother is on - she's on weed, smoking, she got her license or whatever, she can do it and she go out with different step-daddy so I was telling her, I say, "Why you want to move to Alabama?" In Alabama, who knows Alabama, Alabama is nothing. This is the part, like, to me because I want to move to here. I love Indiana and in Alabama it's just bad pay, drugs and bad people down there where they live. I was living there at one -- the one of the stuff bring me here not only because I got [an] opportunity to work.
My only concern [is] just to see my kids and spend quality time with my daughters. (Id. at 111.)
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[¶10] On cross-examination, Father clarified that he was not denying that he "beat up" Mother; the court interjected that Mother's counsel "already introduced the exhibits." (Id. at 118.) Father additionally admitted that he had not completed a domestic batterer's program, as ordered by the Elkhart Circuit Court. At the conclusion of Father's testimony, Mother's counsel inquired whether Father had an objection to the relocation. Father responded: "No, let her go. If she wants to go to the moon, let her go to the moon. The more far away she be from me, I'm - I'm good. I just want to see my kids." (Id. at 124.)
[¶11] This line of questioning was followed by clarification from the trial court: "She is wanting to move to Alabama and take the three children," to which Father responded: "Let her go. Okay. Let her go because I really don't have more time to keep losing jobs." (Id. at 124.) Father reiterated "let her do whatever she want[s]," but asserted "I just want to be a father with my kids." (Id. at 125.) When asked by the trial court how he would exercise parenting time, Father responded, "it isn't possible because the driving is too far away" and explained that he had moved from Alabama because it "is nothing, zero. No pay, no money, drugs everywhere. It's not good at all." (Id.) The trial court pressed Father: "So you're not going to see your kids?" and Father assured the trial court that he was "not putting myself at any risk for anybody." (Id. at 126.) Finally, the trial court addressed Father: "So you want me to enter an order saying Mom and the children can go to Alabama" and Father responded: "Yeah." (Id.) The trial court pronounced the marriage dissolved and signed an order to that effect but took the matter of relocation under advisement.
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[¶12] After the hearing, the trial court apparently became concerned that Father's understanding of the proceedings or his position on relocation was in question. On October 3, the trial court made a docket entry reflecting that the court was sending Father a form upon which Father was to indicate whether or not he agreed that the Children should relocate to Alabama with Mother. On October 9, Father filed with the court a form with his signature and a check mark beside the pre-printed words: "I, Willie Cardona-Feliciano, do not agree that it is in the best interest of my minor children to relocate to Alabama with their Mother." (App. Vol. II, pg. 114.)
[¶13] On December 28, 2023, the trial court entered its findings of fact, conclusions thereon, and order denying Mother's request for relocation. As the parties had agreed, Mother was awarded sole legal and primary physical custody of Children. However, Father was to be awarded "immediate" sole legal custody and primary physical custody of Children should Mother relocate to Alabama. (Appealed Order at 11.) Mother's motion to correct error was deemed denied and this appeal ensued.
Outcome: Reserved and remanded with instructions to grant Mothers' petition for relocation and conduct a parenting time hearing.
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