Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
KRISTIN A. MULHOLLAND ROSEANN P. IVANOVICH
LeBlanc & Mulholland, LLC Law Office of Roseann P. Ivanovich
Crown Point, Indiana Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF )
THE PATERNITY OF K.B.: )
) Dec 10 2014, 10:04 am
B.C., )
)
Appellant-Petitioner, )
)
vs. ) No. 45A04-1404-JP-199
)
K.B., )
)
Appellee-Respondent. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas L. Ryan, Judge Pro Tempore
Cause No. 45D06-1308-JP-1366
December 10, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this case, the trial court held a custody hearing at which B.C. (Mother) testified
and K.B. (Father) presented no evidence, though his attorney presented argument.
Following that hearing, the trial court modified the previous child custody order and
awarded full legal and physical custody to Father. Mother is appealing the modification
order. We vacate the trial court’s order and remand for a full evidentiary hearing.
FACTS
Mother and Father are the parents of K.B., who was born on March 18, 2006. On
August 9, 2013, the State of Indiana filed a petition to establish paternity. On September
23, 2013, paternity was established in Father. Mother filed a motion for custody of K.B.
and child support in the paternity proceeding. Tr. p. 4. The issue of custody, about
which Mother and Father disagreed, was transferred to another magistrate.
On February 13, 2013, an initial hearing on custody was held, and a judge pro
tempore entered a temporary order of custody, pursuant to which the parents shared joint
legal and physical custody. Mother and Father were to transfer K.B. back and forth on a
weekly basis. Mother lives in Gary and Father lives in Portage. K.B. was enrolled in
school in Portage, and Mother struggled to pay for the gas to transport K.B. to and from
school when he was with her. Mother believed that the Portage school was better than
the schools in Gary, however, so she did not ask that K.B. transfer to a Gary school.
On March 28, 2014, a different judge pro tempore held a custody hearing at which
Mother appeared pro se and Father was represented by counsel. At the hearing, Mother
testified—though she was not under oath—and Father’s attorney made representations
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about what Father’s witnesses would testify to. Father did not testify, and presented no
evidence. At the close of the evidence, the trial court granted sole legal and physical
custody to Father. The trial court further ordered that Mother would have parenting time
pursuant to the Indiana Parenting Time Guidelines. The trial court did not issue findings
of fact or conclusions of law in its custody order. Mother now appeals.
DISCUSSION AND DECISION
Initially, we observe that the trial court’s order regarding custody could either be
treated as an initial custody order or as a custody modification order. Either way, we
review the trial court’s order for an abuse of discretion. See Kirk v. Kirk, 770 N.E.2d
304, 307 (Ind. 2002) (applying abuse of discretion standard to a custody modification
order); Pitcavage v. Pitcavage, 11 N.E.3d 547, 553 (Ind. Ct. App. 2014) (applying abuse
of discretion standard to an initial custody order).
The rules and standards to be applied by the trial court, however, differ for an
initial custody order versus a custody modification order. Based on the record before us,
we are unable to determine which set of rules should apply. There are factual matters
that must be established to make this determination. See Hughes v. Rogusta, 830 N.E.2d
898, 901 (Ind. Ct. App. 2005) (finding that the custody modification standard did not
apply where the father did not acquiesce in the mother’s custody but immediately filed to
establish paternity and determine custody after the mother moved out); In re Paternity of
Winkler, 725 N.E.2d 124, 128 (Ind. Ct. App. 2000) (holding that a custody modification
standard applied when the mother had custody of an out-of-wedlock child for twelve
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years because “the same concerns about stability and continuity present in sole and joint
custody modifications are present”).
In the hearing at issue, Mother testified that she has always been in K.B.’s life. Tr.
p. 13. She also testified that she has been taking care of him through his life and ensuring
he went to all doctor’s appointments. Id. at 27. Father’s attorney represented that Father
“has always had the child,” but presented no evidence to support that assertion. Id. at 10.
This record provides an insufficient basis to determine the circumstances of K.B.’s life
before paternity was established and before the temporary custody order was entered. As
a result, we cannot determine whether the trial court should have treated this as an initial
custody request or a modification of custody request.
Moreover, regardless of the nature of the custody order, there is an incurable
dearth of evidence in the record supporting it. Father presented absolutely no evidence at
this hearing. It is well established that argument of counsel is not evidence that can be
considered by the trial court in making factual determinations. El v. Beard, 795 N.E.2d
462, 467 (Ind. Ct. App. 2003). Father’s attorney summarized what he anticipated his
witnesses would testify to if called to the stand. The trial court questioned, “Now how
are these witnesses going to help me if I hear their testimony?” To which counsel
responded, “Well, if at this point, Judge—you’re a seasoned judge, so I mean—I think we
pretty much told you everything we would expect them to say.” Tr. p. 24. None of the
witnesses—including Father—actually testified. As a result, Mother was unable to cross-
examine them or present her own evidence to rebut their testimony.
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We infer from the trial court’s statements at this hearing that it ruled as it did
because it concluded that if Mother had physical custody of K.B., she would remove him
from the Portage school and enroll him in a school in Gary. Mother’s testimony,
however, was precisely opposite of this conclusion:
“[The Portage school] is the best school. I have [to] agree that that’s the best
school for him, because I enrolled him there ever since he was in
Kindergarten.” Tr. p. 21.
“I feel that [the Portage school]’s the best school for him, not to live in Gary
or go to that school.” Id.
“. . . I said [to Father] okay, I agree that he can go in [sic] Portage School, but
could you just help me with gas. That’s it.” Id. at 22.
“. . . Kyle Elementary in Portage, which is a great school for my child.” Id.
at 23.
The Court: “And am I hearing that the same circumstances still exist that if
you have sole legal custody, you’re going to have to travel from Gary over to
Portage?” Mother: “And that’s what I do—and that’s what I’ve been
doing.” Id.
The Court: “So, you’re going to change the school?” Mother: “No, I still
agree—because I don’t want to be selfish. It’s not about me, it’s about the
child.” Id. at 26.
“[Inaudible] for the wellbeing of my child, which I said was the Portage
School, so I’m willing to go there, if I have to every day.” Id.
Mother appeared pro se at this hearing and at times had difficulty articulating her
arguments, but she was consistent throughout the hearing that she intended to allow K.B.
to continue attending school in Portage. And as Father presented no evidence at this
hearing, there is nothing in the record to rebut Mother’s statements.
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Our Supreme Court has criticized the summary resolution of a custody
modification proceeding without an evidentiary hearing where witnesses were available
to be sworn in and cross-examined. Wilson v. Myers, 997 N.E.2d 338, 340-41 (Ind.
2013). The Wilson Court’s description of the proceedings below in that case are
strikingly similar to the case at issue herein:
No mention [in the trial court’s order] is made of whether this
modification is in the best interests of [the children], nor is there any
mention of a substantial change in any of the factors enumerated in
Indiana Code § 31–17–2–8 [regarding custody orders]. And whether
such explicit findings are required or not—and without reducing the
importance of the statutory considerations to just talismanic magic
words in a trial court order—considering the proceedings leading up
to the order, we cannot even infer support for such findings.
None of the witnesses at the [custody] hearing were sworn or cross-
examined; none of the documents introduced—if there were any—
were admitted through any foundation or examination of reliability.
No courtroom formalities (and few civilities) seem to have been
observed at all. Parties, attorneys, counselors, and the judge talked
freely, interrupted, and questioned each other without any semblance
of order or procedure. The trial court made reference to looking at
“the whole picture” in making its decision, but provided no insight
into what was contained in that picture before simply announcing
that it planned to grant Myers’s motion to modify custody. . . . And
nothing in the transcript of the hearing relates to any of the factors
enumerated in Section 31–17–2–8, so we cannot safely assume that
they were considered.
Myers argues that Wilson effectively waived any right to protest this
process by signing the release authorizing the court to directly
contact the counselors, not insisting that the witnesses be sworn, and
not filing a motion requesting specific findings of fact and law. But
we must be mindful that even if Wilson—and Myers—waived their
right to confrontation and formal cross-examination of witnesses,
and consented to an unorthodox and summary procedure, the
interests of the two critical individuals in the case—A.W. and
B.W.—were not separately represented at the hearing. So even if
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the transcript did not clearly reflect Wilson requesting an evidentiary
hearing and a second in-camera interview—which he did—we
would be loathe to use that “waiver” as a cure-all to remediate a
process defective in protecting the two individuals most at-risk in
this venture.
In short, what we are now faced with on appeal is an order directing
one parent to hand over two children to another parent with no
mention or hint that doing so is in accordance with the Indiana Code.
And the only support for this order is the transcript of what seems to
be little more than an unorganized shouting match labeled as an
“evidentiary hearing.” To issue such an order was therefore an
abuse of discretion.
Id. at 340-42 (emphases added, internal citations and footnotes omitted); see also
Krampen v. Krampen, 997 N.E.2d 73, 83 n.5 (Ind. Ct. App. 2013) (noting that “[w]hile
we understand the desire of the attorneys and the trial court for expediency and
efficiency, these concerns must yield to the proper presentation and admission, not oral
summation, of all evidence needed to arrive at the correct conclusion”).
In this case, as in Wilson, no witnesses were sworn or cross-examined, no
documents were introduced, and no courtroom formalities were observed. The trial court
frequently interrupted Mother when she was speaking and treated her without respect or
courtesy throughout the proceeding.1 See, e.g., tr. p. 7 (trial court, to Mother, “well I’m
going to wind you up and see what you have to say, how’s that?”); id. at 30 (“You’re not
listening to me at all. I’m wasting my breath. We’re done.”). The trial court made no
mention of the Indiana Code or the statutory factors that must be considered in making a
1
We caution the trial court to be respectful to all litigants, witnesses, and attorneys appearing
before it in the future.
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custody order, whether it be an initial order or a modification order. The custody order
itself likewise offers no enlightenment.
We echo our Supreme Court’s advice in Wilson:
while summary proceedings—when properly agreed to—can be
beneficial in deciding matters of custody and parenting time to
minimize the negative impact on the children, such summary
proceedings may be less appropriate where the parties are vigorously
contesting every facet of the process and appear incapable of
approaching these decisions in a civil or cooperative manner. In
such cases, we encourage trial courts to utilize the formal procedures
embodied in the Indiana Trial Rules to maintain a level of control
and decorum that keeps the litigation process from turning into a
mud-slinging argument and preserves the rights of all involved.
997 N.E.2d at 342. Given the lack of evidence presented and the overall tone of the
hearing, we vacate the trial court’s custody order and remand for a full expedited
evidentiary hearing.
Without condoning the custody order, we acknowledge that K.B. has been living
with Father on a full-time basis since the order was issued. To minimize further
disruption to K.B.’s life, we order this status quo to continue until further order of the
trial court. See id. (holding that “the current living arrangement was not properly
established, but at this point it is what it is and it is our obligation, in the best interests of
the children, not to exacerbate the problem or to encourage the practice followed here”).
The judgment of the trial court is vacated and remanded for an expedited
evidentiary hearing.
MAY, J., and BARNES, J., concur.
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