MEMORANDUM DECISION
[1] Kriston Smith (“Father”) appeals the trial courts order granting Andrea Voreiss (“Mother”) request to modify his parenting time with H.S. (“Child”), the child they share together. Father raises one issue for our review: whether the trial court abused its discretion when it found that it was in the best interest of Child to prohibit Father from consuming alcohol twelve hours prior to and during his parenting time. We reverse.
Facts and Procedural History
[2] Child, who was born on October 28, 2013, is the biological child of Mother and Father. As of November 2022, Fathers parenting time with Child included “one (1) overnight during week one and three (3) overnights on week two on a continuing basis. The second week of parenting time ends on Sundays at 6:00 p.m.” Appellants App. Vol. 2 p. 42. On November 30, 2022, Father filed a petition to modify parenting time, requesting that his parenting time be modified to allow for Sunday overnights every other weekend. In his petition, Father asserted that he was seeking a modification of his parenting time because:
2. Father is well bonded with his daughter, spends significant time with her and believes it is in her best interest to extend the weekends with her [F]ather to include Sunday overnight.
3. Sunday overnight will also serve to cut down on contact between [M]other and [F]ather as school will be the transportation point except on the rare occasions when there is no school. While the parties communicate generally well regarding the childs health and welfare, there remains some animosity between them individually which has been the subject of recent proceedings. Eliminating a point of contact will serve to allow the focus to be on parenting time and not on communicating about transportation and the like.
Id.
[3] On June 14, 2023, Mother filed her petition to modify parenting time, alleging:
2. That Father is abusing alcohol while in the presence of [Child] warranting a restriction of his parenting time with [Child].
3. [That] this has created a substantial and continuing change in circumstances that warrant to restrict modification of [p]arenting [t]ime.
4. That this Court should issue an order prohibiting Fathers use of alcohol within the twenty-four (24) hours prior to his parenting time and during his parenting time with [Child].
Id. at 44.
[4] On September 26, 2023, the trial court held a hearing on the petitions, at which both Mother and Father testified. Father testified that he has a job which allows him to travel significantly and build up points to use for vacations throughout the year so that Child has traveled with Father to numerous locations as a result. On cross examination, the following exchange took place regarding Mothers request to restrict Fathers alcohol consumption:
Q Okay. We have a petition on file to restrict the consumption of alcohol in your household 24 hours before having [Child] and during the time you have [Child]. Are you willing to do that?
A I dont -- I dont agree with that petition. I dont understand the basis of it.
Q Okay. Isnt it true youve had a history of excessive drinking?
A That is not true.
Q Okay. How long were you and [Mother] together?
A A few years, give or take.
Q Okay. When youre on vacation with [Child], have you ever had her in the car, gone over 100 miles an hour?
A No.
Tr. Vol. 2 p. 9. After Fathers redirect testimony, the trial court engaged in the following exchange with Father:
THE COURT: ․ [Father, Mothers counsel] asked you if you had any objection to refraining from the consumption of alcohol 24 hours prior, and then through the visitation, through the parenting time. You didnt really directly answer that, other than saying that you did not have an alcohol problem. With respect to that restriction, do you agree with that? Would you agree with that? To not consuming any alcohol 24 hours prior through that Sunday?
THE WITNESS: I guess Id want to know the basis of that.
THE COURT: Well, now, just answer the question. Would you be willing to abide by a restriction like that? Im not saying Id do it; I just want to know your answer.
THE WITNESS: I mean, if that would award me more time with [Child], yeah, thats fine.
THE COURT: Okay.
Id. at 13. Father then answered two more questions for his counsel:
Q. You said you go on trips and vacations with [Child], correct?
A. Correct.
Q. When youre in California, did you ever have a drink of wine?
A. Well, yeah, I mean, were at the poolside, were at the Disney pools, whatever it may be, yeah.
Id. at 13–14.
[5] During her testimony, Mother stated in reference to her request for an alcohol restriction during Fathers parenting time:
Q ․ You, you put a petition in for a restriction of the use of alcohol in [Fathers] household ․ 24 hours before visitation and during visitations, correct?
A Yes.
Q Are you willing to place that restriction on yourself if the Court orders it on, basically, the parents?
A Yes.
․
Q Do you have reason to believe that [Father] is using alcohol in excess while [Child is] in his household?
A Yes.
Q I mean, even since the last hearing?
A Yes.
Q Okay. Has that kind of always been his thing?
A Yes.
Q Does [Child] -- when she comes back from [Fathers] household, is her demeanor any different?
A Yes.
Q How so?
A Shes angry and mean to me. Or just seems very frustrated, which I know a lot of it is back and forth because she expressed that being an issue before.
Id. at 18–20.
[6] Mother then explained that Child was getting older and more aware of her surroundings and could report to Mother what Father drinks. Specifically, Mother testified as follows:
Q She can tell you what hes drinking?
A Yes.
Q Like beer or --
A Bacardi and Diet Coke, double shot -- which I didnt even know what Bacardi was – Cheetos [sic] and a high water. Those are what she was telling me at eight -- eight and a half.
Q Okay. And so youre asking the Court to impose the restrictions on alcohol on both parents?
A Yes.
Id. at 21. Although the trial court allowed Mother to testify to what Child had told her over objection, the trial court stated that it would not give the testimony much weight.
[7] On cross examination, Mother admitted she has no personal knowledge from the past year to support her allegation that Father abuses alcohol. Mother then explained that she tracks Childs phone using an app. Mother testified that, during winter break in December 2023, when Child was in Florida with Father, Mother viewed the app, and it appeared that Father was speeding in his car and driving 109 miles per hour with Child present. Mothers counsel attempted to admit Exhibit 1, which was a screenshot from the app, but the trial court did not admit the exhibit finding that there was no verification that Father was driving at the time depicted in the screenshot.
[8] At the conclusion of the hearing, the trial court took the matter under advisement. On September 27, 2023, the trial court issued an order denying Fathers petition and finding that it was in Childs “best interest to prohibit each party from consuming alcohol or any illegal substance twelve (12) hours prior to or when [Child] is in their care.” Appellants App. Vol. 2 p. 39. Father now appeals.
Discussion and Decision
[9] On appeal, Father does not challenge the denial of his petition to modify parenting time. Rather, Father focuses only on the alcohol restriction the trial court imposed in connection with his parenting time. Father argues that the trial court abused its discretion when it ordered the restriction on alcohol consumption. Initially, we note that Mother did not file an appellees brief. When an appellee fails to submit a brief on appeal, we apply a less stringent standard of review with respect to the showing necessary to establish reversible error. In re Paternity of S.C., 966 N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied. We may reverse if the appellant establishes prima facie error, which is an error at first sight, on first appearance, or on the face of it. Id. “Moreover, we will not undertake the burden of developing legal arguments on the appellees behalf.” Id. Nevertheless, even under this less stringent standard, we are obligated to correctly apply the law to the facts in the record to determine whether reversal is warranted. Tisdale v. Bolick, 978 N.E.2d 30, 34 (Ind. Ct. App. 2012).
[10] “Indiana has a legislatively-expressed presumption in favor of parenting time with the noncustodial parent.” S.M. v. A.A., 136 N.E.3d 227, 230 (Ind. Ct. App. 2019) (citing Perkinson v. Perkinson, 989 N.E.2d 758, 765 (Ind. 2013)). “Decisions involving parenting time rights under the paternity statutes are committed to the sound discretion of the trial court.” In re Paternity of J.K., 184 N.E.3d 658, 663 (Ind. Ct. App. 2022) (citation omitted). We will only reverse the trial courts decision for an abuse of that discretion. Id. When reviewing the trial courts decision, we neither reweigh the evidence nor judge the credibility of the witnesses. Id. Further, we have a “ ‘preference for granting latitude and deference to our trial judges in family law matters.’ ” Walker v. Nelson, 911 N.E.2d 124, 127 (Ind. Ct. App. 2009) (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)).
[11] Indiana Code section 31-14-14-1, which outlines the parenting time rights of a noncustodial parent in a paternity action, provides that “[a] noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time might: (1) endanger the childs physical health and well-being; or (2) significantly impair the childs emotional development.” Ind. Code § 31-14-14-1(a). Indiana Code section 31-14-14-2 states that “[t]he court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.” Although section 31-14-14-1 uses the term “might,” we have interpreted the statute to mean that a court may not restrict visitation unless that visitation would endanger the childs physical health or well-being or significantly impair the childs emotional development. Walker, 911 N.E.2d at 130 (citing Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003)). Section 31-14-14-1, “by its plain language, requires a court to make a finding of physical endangerment or emotional impairment prior to placing a restriction on the noncustodial parents visitation.” In re Paternity of V.A.M.C., 768 N.E.2d 990, 1001 (Ind. Ct. App. 2002).
[12] Here, the trial court did not make a specific finding that Childs physical health and emotional well-being would be damaged or that Childs emotional development would be significantly impaired by allowing Father to consume alcohol twelve hours prior to his parenting time and during his parenting time. Because the trial court did not make the required specific finding pursuant to the statute, the trial courts findings do not support the restriction. See id. (reversing a restriction on parenting time that fathers fiancée could not have contact with child while child was in fathers custody because trial court did not make a specific finding under the statute).
[13] Further, the record does not reveal any evidence that Fathers drinking would endanger Childs physical health and well-being or significantly impair Childs emotional development. Mother testified that she had reason to believe that Father uses alcohol in excess with Child in his household but had no personal knowledge of it. She based her concern on a time where Child was on vacation with Father, and Mother observed that the app that tracks Childs phone showed that Child was in a car traveling 109 miles per hour without any proof of where this occurred and what the circumstances were or if Father was the driver. Mother also testified that Child could report to Mother the specific types of alcohol that Father drinks. She also stated that Child would be angry and mean to her or just frustrated when Child returned from Fathers home, but Mother attributed that to the “back and forth.” Tr. Vol. 2 p. 20. This evidence was not sufficient to suggest that Childs physical health and well-being was endangered, or that her emotional development was impaired. We conclude that Father has shown prima facie error in the trial courts order. Consequently, we reverse the portion of the trial courts order that prohibits Father from consuming alcohol twelve hours prior to and when Child is in his care. See In re Paternity of Snyder, 26 N.E.3d 996, 999–1000 (Ind. Ct. App. 2015) (reversing a restriction on fathers parenting time under which he could not tell child that he was her father when there was no evidence suggesting that childs physical health or emotional development would be impaired by telling child as such finding is required by statute).
[14] Reversed.
Memorandum Decision by Judge Foley
Judges Vaidik and Weissmann concur.
Vaidik, J., and Weissmann, J., concur.