In re the Marriage of: Christopher Neal Maddux v. Suzanne Marie Maddux

Aug 11 2015, 5:29 am

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan L. Ciyou Andrea L. Ciobanu
Lori B. Schmeltzer Alex Beeman
Jessica K. Keyes Ciobanu Law, P.C.
Ciyou & Dixon, P.C. Indianapolis, Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Marriage of: August 11, 2015
Court of Appeals Case No.
Christopher Neal Maddux, 49A02-1409-DR-618
Appeal from the Marion Superior
Appellant-Respondent,
Court
v. The Honorable David J. Dreyer,
Judge
Suzanne Marie Maddux, The Honorable Hugh Patrick
Murphy, Magistrate
Appellee-Petitioner
Case No. 49D10-0406-DR-1112

Crone, Judge.

Case Summary
[1] Christopher Neal Maddux (“Father”) appeals an order denying his motion for

modification of primary physical custody of his two sons. He claims that the

trial court’s findings of fact do not support the judgment with respect to the best

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 1 of 20
 interests of the children. 1 We reverse and remand for proceedings consistent

with this opinion.

Facts and Procedural History
[2] In March 2005, the trial court issued a decree dissolving the marriage of Father

and Suzanne Marie Maddux (“Mother”). As part of the decree, the court

granted joint legal custody, awarded Mother primary physical custody of the

couple’s children, G.M. and C.M. (collectively “the Children”), then ages three

and one, and granted Father parenting time according to the Indiana Parenting

Time Guidelines.

[3] Father subsequently remarried and lives with his wife (“Wife”), their three

children, and Wife’s child from a previous relationship. As of 2006, Mother

and the Children moved in with Mother’s parents (“Maternal Grandmother

and Maternal Grandfather”). Maternal Grandfather has a felony child

molesting conviction from thirty years ago. Mother’s and Father’s residences

are approximately two miles apart.

[4] In 2011, Mother alleged that Father was physically abusing C.M., and she filed

a petition for a protective order. Her petition was granted, and the Department

of Child Services (“DCS”) began proceedings to determine whether C.M. was a

1
Father also asserts that the trial court erred in recalculating his weekly child support obligation at $175,
alleging that the child support obligation worksheets submitted by the parties show the correct figure to be
$157. We note that Mother concedes the issue. See Appellee’s Br. at 16 (“Father’s child support obligation
should be $157.00 per week as requested by Father in his brief on appeal.”). Thus, we remand with
instructions to credit Father for any sums to which he may be entitled.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 2 of 20
 child in need of services (“CHINS”). The abuse allegations against Father were

unsubstantiated, and Father filed a petition for custody modification in the

CHINS court. The CHINS court appointed Dr. Richard Lawlor to perform a

custody evaluation. Mother and Father submitted to the evaluation, and Dr.

Lawlor recommended that Father be given custody based on Mother’s pattern

of undermining his relationship with the Children by demeaning him to the

Children, interfering with his parenting time, and failing to inform him of

important matters pertaining to legal custody. The CHINS court held a hearing

in March 2012. In June 2012, the CHINS court issued special findings and a

judgment dismissing the protective order and denying Father’s request for

custody modification. By this time, Father had not had his parenting time with

the Children for approximately a year. As part of the order, Father was to

undergo two weeks of supervised parenting time and resume normal

unsupervised time thereafter.

[5] Mother did not bring the Children to the first unsupervised parenting time

exchange at the beginning of July 2012 and allowed Father only a few days of

parenting time instead of half the summer as required by court order. On July

15, 2012, Mother accused Father of abusing C.M. by smacking him on the face.

She called the police, but no criminal charges were filed. The next day, DCS

received a report of the alleged abuse, but found it to be unsubstantiated.

[6] On September 1, 2012, Father had parenting time with the Children at his

home. During that time, an auto accident occurred in front of Father’s home,

and he and Wife went outside to assist the victims and talk with police. Father

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 3 of 20
 and Wife could see the Children playing inside the house. C.M. began texting

Mother, who became concerned that C.M. was being hurt, presumably by

Father. She called the police, and the investigating officer was the same officer

who had been present with Father at the accident scene. The officer found that

Father could not have harmed C.M. and that C.M. showed no signs of injury. 2

The alleged abuse was unsubstantiated.

[7] During his parenting time on September 16, 2012, Father took the Children and

three others to the park. C.M. later told Maternal Grandmother that Father

had wrapped his head in bubble wrap and struck him in the stomach and nose.

Two days after the alleged incident, C.M. had a regularly scheduled

appointment with his otolaryngologist for nasal cauterization. The doctor

found no evidence of an injury, and neither Mother nor C.M. mentioned it to

him. Maternal Grandmother contacted DCS. Although DCS initially

substantiated the incident, it was later found to be unsubstantiated.

[8] Mother denied Father any parenting time after September 16, 2012. On

September 28, 2012, she sought and was granted a protective order against

Father stemming from her bubble wrap allegation. In October, the Indianapolis

Metropolitan Police Department sent a detective specializing in child abuse

cases to investigate the allegations. Meanwhile, in November 2012, Father filed

a verified petition for contempt against Mother based on her denial of his court-

2
The guardian ad litem later reviewed the transcript of the text messages and found that they were vague
and did not implicate Father.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 4 of 20
 ordered parenting time and her failure to notify him of the Children’s medical

appointments. He also filed a verified motion to enforce parenting time. In

December 2012, the detective notified Mother that criminal charges would not

be filed due to a lack of evidence. In February 2013, Mother filed a verified

petition for modification of parenting time, claiming that a criminal

investigation was pending regarding her allegations that Father had abused

C.M. with bubble wrap. The bubble wrap allegation was never substantiated.

[9] On September 24, 2013, Father filed a verified petition for modification of

physical and legal custody. He also sought a permanent injunction prohibiting

Mother from interfering with parenting time and filed a motion to appoint a

guardian ad litem (“GAL”). GAL Denise Hayden interviewed the Children as

well as Mother and Father. She found many of C.M.’s responses to her

questions about Father to be strange and possibly coached and found him to be

immature. She found that C.M. might be demonstrating his love and support

for Mother “by going along with whatever she says and by endorsing her no

matter what.” Appellant’s App. at 246. GAL Hayden also reported that she did

not believe that Father was abusive to the Children and that she “[did] not

believe that mother [would] willingly allow the children to have a healthy

relationship with their father.” Id. In January 2014, she filed her GAL report

recommending that Father be granted custody and that Mother have supervised

visitation pending a psychological evaluation.

[10] On March 14, 2014, Father sought an emergency custody hearing and

emergency order of custody modification. At the emergency hearing, the trial

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 5 of 20
 court dismissed the protective order against Father and denied his emergency

petition for custody modification. The trial court held all other motions for

consideration during a hearing eventually conducted in May 2014.

[11] On August 12, 2014, the trial court entered findings of fact and conclusions

thereon in an order holding Mother in contempt for denying Father’s parenting

time, denying Father’s petition for custody modification, adjusting Father’s

weekly child support obligation upwards to $175, and directing Mother to pay

$20,000 of Father’s attorney fees.

[12] Mother filed a motion to reconsider the contempt finding and the order of

attorney fees, which the trial court denied. Father now appeals the trial court’s

denial of his petition for custody modification and recalculation of child

support. Additional facts will be provided as necessary.

Discussion and Decision

[13] Where, as here, on request of the parties, the trial court issues findings of fact

and conclusions thereon pursuant to Indiana Trial Rule 52(A), we apply a two-

tiered standard of review. 3 Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076-77 (Ind.

Ct. App. 2011), trans. denied. First, we determine whether the evidence supports

the findings, and second whether the findings support the judgment. Id. at

3
The parties dispute the applicable standard of review. Here, Father’s counsel requested special findings
pursuant to Indiana Trial Rule 52(A). Appellant’s App. at 109.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 6 of 20
 1077. We will reverse only if there is no evidence supporting the findings or the

findings fail to support the judgment. Id. 4 We review the findings of fact using

a clearly erroneous standard. Id. Clear error occurs when our review of the

evidence most favorable to the judgment leaves us firmly convinced that a

mistake has been made. Id. We review the conclusions of law using a de novo

standard. Id.

[14] Father contends that the trial court’s findings of fact do not support its

judgment denying his petition to modify custody. The party seeking a

modification of custody bears the burden of demonstrating that the existing

custody order should be altered. Arms v. Arms, 803 N.E.2d 1201, 1208 (Ind. Ct.

App. 2004). The trial court “may not modify a child custody order unless: (1)

the modification is in the best interests of the child; and (2) there is a substantial

change in one (1) or more of the factors that the court may consider under

[Indiana Code Section 31-17-2-8] …” Ind. Code § 31-17-2-21(a). “In making

its determination, the court shall consider the factors listed under section 8 of

4
We note that several of the trial court’s findings are not proper findings. Instead, they are merely
recitations of testimony. For example, several findings contain phrases such as, “Father testified,”
“Petitioner’s mother … testified,” and “Ms. Chavkin testified.” Appellant’s App. at 26-27, 29. Findings that
indicate that the testimony or evidence was this or that are not findings of fact. Parks v. Delaware Cnty. Dep’t of
Child Servs., 862 N.E.2d 1275, 1279 (Ind. Ct. App. 2007). Rather, a “finding of fact must indicate, not what
someone said is true, but what is determined to be true, for that is the trier of fact’s duty.” Id. (emphasis
added) (citation omitted). In other words, the “trier of fact must adopt the testimony of the witness before
the ‘finding’ may be considered a finding of fact.” Id. (citation omitted).

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 7 of 20
 this chapter.” Ind. Code § 31-17-2-21(b). Indiana Code Section 31-17-2-8 states

in pertinent part,

The court shall determine custody and enter a custody order in
accordance with the best interests of the child. In determining the best
interests of the child, there is no presumption favoring either parent.
The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the
child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s
best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.

[15] Here, the trial court’s extensive findings of fact include the following: 5

5
The trial court’s findings refer to Mother as “Petitioner” and “Mother” interchangeably and to Father as
“Father” and “Mr. Maddux” interchangeably. For the sake of consistency and clarity, we use “Mother” and
“Father” throughout.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 8 of 20
 9. Dr. Richard Lawlor performed a custody evaluation and testified at
the March 8, 2012 hearing.

10. Therein, Dr. Lawlor recommended custody be modified to Father
due to Mother’s “pattern of undermining of [Father’s] relationship
with the boys” ….

11. Special Findings were issued on or about June 7, 2012, dismissing
[Mother’s] Order of Protection and denying Father’s request for
modification of custody.

….

17. There are several cases on point that are illustrative regarding the
course of the present case.

-Arms v. Arms, 803 N.E.2d 1201 (Ind. Ct. App. 2004): Father was
granted sole physical custody and Mother’s parenting time was
restricted to every-other-Sunday, non-overnight visitation after Mother
made false allegations of abuse that were unsubstantiated against
Father and his then-girlfriend. Mother spoke negatively about Father
and his girlfriend to the children, and denied Father his entire weekend
parenting time. The child began seeing a therapist, who determined
the child was being emotionally harmed, and the child was being
coached as to false statements regarding abuse. The child’s therapist
noted that the child was worried about upsetting his Mother. The
Court allowed evidence from a previous hearing showing a pattern of
behavior by Mother. The Court held, “past behavior is a valid
predictor for future conduct.” Id. at 1210.

-Albright v. Bogue, 736 N.E.2d 782 (Ind. Ct. App. 2000): Mother made
allegations of sexual abuse against Father to the child’s doctor. The
abuse allegations were unfounded. Mother also alleged that the child’s
Paternal Grandmother had sexually abused the minor child. The
allegations were unsubstantiated by DCOFC (Delaware County Office
of Family and Children). Testimony was given that Mother was
putting up barriers to visitation because she did not want Father to
have the child for any reason. The child was exhibiting “anxiety,
depression, and aggressive behavior, and that he had verbalized a wish
to be dead.” Id. at 786. Testimony was given about a pattern of

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 9 of 20
 Mother’s complaints, and that Mother was in need of individual
psychotherapy. The Court held: “… the real issue in this case is not
whether [Mother] is being penalized in some fashion for her reporting
of alleged child molestation to the authorities, [sic] Rather is it clear
that the trial court’s decision to modify custody was based upon ample
evidence to support the conclusion that [Mother] was causing harm to
[the child] by placing pressure on him to say that he was being
molested and by attempting to interfere with [Father’s] parenting
time.[”] Id. at 789, emphasis added. Father was granted custody after
the Court held that the substantial change in circumstances leading to
modification of custody to Father was misconduct that placed the
child’s mental and physical welfare at stake. Id. at 790.

-Hanson v. Spolnik, 685 N.E.2d 71 (Ind. Ct. App. 1997): Mother made
allegations of sexual abuse by Father to a therapist that Father never
met with. CPS did not substantiate allegations. Mother called Father
names in front of the child, including “Satan.” Father argued that
Mother was engaging in a pattern of parental alienation affecting the
child’s emotional and psychological needs. The Court found that
Mother had worked to destroy the relationship between the child and
Father since the divorce. Father was granted sole custody of the minor
child, and was awarded $62,500 in attorney fees, to be paid by Mother.

18. Almost immediately after the last Order of the Court was issued in
the 2012 modification hearing in July, 2012, Mother began to deny
Father parenting time without justification or Court Order.

19. On or about July 1, 2012, when Father’s parenting time was to
resume, after Father successfully completed a short period of
supervised visitation due to the extended period he had been denied
parenting time with his sons, Mother denied him time, and told police
officers that Father was not to have parenting time until a new Court
trial was held.

….

22. Mother allowed Father some parenting time in July and August,
2012, but not his half of the summer as he was granted per the Court’s
Order.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 10 of 20
 23. Mother took the Children out of state to St. Louis, Missouri,
without informing Father, and during his summer parenting time in
2012.

24. The first allegation of abuse was made against Father on or about
July 15, 2012, just over one (1) month after the Order from the 2012
modification trial.

25. Mother contacted the police and Department of Child Services
(herein “DCS”) on or about July 15, 2012, claiming that Father hit
C.M. in the face.

26. The abuse was unsubstantiated by DCS, and no charges were filed
against Father.

….

30. There is no credible evidence to corroborate allegations of abuse
on or about July 15, 2012. That the Court finds that the parties
communicated by phone on or about July 28, 2012, where Mother
notes that C.M. has a lying problem, and she can get DCS to stop if
she wants ….

31. Mother proposed a “pact” on or about July 28, 2012 that she
would discuss any allegations of abuse with Father.

32. On or about September 1, 2012, Mother called the police alleging
that Father had injured C.M. during his parenting time.

33. A police officer that responded to the call and allegation had been
outside with Father for an extended period, as a[n] automobile
accident had occurred just in front of Father’s house.

34. The police officer did not make a report about the allegations.
Father was not criminally charged, and the officer spoke with C.M.
regarding the incident.

35. There is no evidence to support allegations of abuse on or about
September 1, 2012.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 11 of 20
 36. Mother alleged, in her petition for Order of Protection filed on or
about September 26, 2012 that Father injured C.M. by wrapping his
face with bubble wrap after a nosebleed, purported to have happened
on or about September 16, 2012.

37. Photographic and testimonial evidence do not show any injury to
the face, head or neck of the child.

….

39. This matter was not reported to police until approximately one
week later.

40. The Petition for Order of Protection was not filed until
approximately a week and a half later.

41. C.M. had an appointment [with otolaryngologist Thomas
Fairchild] for nasal cauterization on September 18, 2012, which was
scheduled in August, 2012 due to chronic nasal issues.

42. Dr. Thomas Fairchild … noted that C.M. has a history of issues
with nosebleeds and prior cauterizations of his nose.

43. Dr. Fairchild testified that he did not observe any trauma or
injuries to C.M. that would raise suspicions of abuse during a
scheduled appointment on September 18, 2012.

44. Mother told DCS and the pediatrician, whom she took C.M. to
see after the nasal cauterization, that the cauterization was due to
C.M. being hit by Father, not a previously scheduled appointment due
to chronic nasal issues.

45. Neither Mother nor C.M. noted any abuse allegations to Dr.
Fairchild or his staff on the morning of September 18, 2012, but did
make allegations to the pediatrician that same afternoon.

46. DCS did initially substantiate the allegations against Father
related to the bubble wrap contention, thereafter, upon Father filing for
an administrative appeal, the findings of abuse were unsubstantiated,
without the need for a hearing.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 12 of 20
 ….

48. Despite having communicated extensively with Detective
Chappell and knowing that criminal charges were not forthcoming,
Mother filed her Verified Motion for Modification of Parenting Time,
in which she alleged that the matter was being referred to the local
prosecutor for possible criminal charges.

….

50. Maternal Grandfather … transports the Children to doctor and
therapy appointments on a regular basis, rather than Mother.

51. Maternal Grandfather also has a criminal history involving sexual
abuse against a family member, and served jail time for same.

….

53. Until recently, after March, 2014, the minor Children were
sleeping in the same room, and often the same bed as Mother, with no
privacy screen or divider.

54. Until December, 2012, Mother denied Father parenting time with
either G.M. or C.M., despite the fact that the Order of Protection did
not cover G.M. and there were no allegations of abuse or neglect
relating to G.M. at any time.

….

56. Mother’s denial of Father’s parenting time has been a consistent
cycle since 2008, and Mother has been denying Father parenting time
by making reckless allegations of abuse and neglect consistently since
2011.

….

61. Mother’s failure to pay her student loans has negatively affected
Father’s credit.

62. That the Court finds that Father has incurred substantial legal fees

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 13 of 20
 to defend against the above-pending matters, in the amount of
approximately $49,000.00 ….

….

64. [GAL] Hayden was concerned that Mother had consented to
C.M. being subjected to corporal punishment at school after C.M. was
found to be stealing and lying. Also, that Mother portrays Father to
the minor Children as a “cheater” and the Children’s belief that the
divorce was “daddy’s fault.” GAL Hayden also noted the pattern of
false allegations by Mother that begin almost immediately after the
resolution of CPS complaints and Father’s parenting time resuming.
GAL Hayden further was concerned about the evidence of Mother’s
resistance to Father’s relationship with the Children over a period of
three (3) years.

65. [GAL] Hayden was also concerned about G.M.’s disclosure to her
that he had been suicidal due to people telling him to shut up. Mother
did not seek counseling for G.M. for his suicidal thoughts.

66. The GAL noted in both her report and through her testimony that
she did not believe that Father is abusive to the Children.

67. [GAL] Hayden notes the wishes of the children to remain living
with their Mother, based on fear and anxiety of the lack of recent
positive relationship with Father, and of unfamiliarity with that
unknown generally.

68. [GAL] Hayden further notes the positive emotional development
of the two children in their current situation.

69. [GAL] Hayden recommended that Father be granted primary
physical custody of the minor Children and sole legal custody.
Additionally, that Father should be the parent exclusively authorized
to seek medical treatment for the Children.

70. GAL Hayden recommended that Mother only have supervised
parenting time or contact by telephone or mail until she completes a
psychological evaluation by a Ph.D. psychologist in her report filed on
or about January, 2014.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 14 of 20
 Appellant’s App. at 20, 22-29. 6

[16] The trial court’s conclusions of law state in pertinent part,

75. Mother’s continual actions of false allegations, denying Father
parenting time, and leaving the Children unsupervised with Maternal
Grandfather is irreparably harming to the Children’s relationship with
Father and their emotional wellbeing, and for it the court finds Mother
in contempt.

76. Father has proved there is a substantial and continuing change in
circumstances, but has not proved change of custody is in the best
interests of the children. The parties shall be joint legal custodians of
the two children.

77. Parenting time shall follow a graduated path reuniting Father with
the children. The parties have picked a counselor/provider to assist
with this function. This shall as soon as practicable be set on a course
of unsupervised parenting time. The child support order is calculated
on 91-95 overnights per year, and this will obviously include split
holiday and summer seasons.

78. The court will not summarily substitute its judgment over the
considered and professional opinion of such provider, but this order is
intended to make clear that reunification of children and Father is the
paramount concern.

….

85. Father has failed to prove both prongs of the test for change of
custody, specifically, that there is a substantial change in
circumstances, but that this does not warrant a change in custody
because of both the need for a therapeutic period of reunification, and
because the children are developing well according to their ages and
maturity.

6
We note that several pages in the appellant’s appendix are out of order.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 15 of 20
 86. Mother has willfully[]denied Father parenting time by making
reckless and sometimes baseless allegations, in contempt of the Court’s
Order, and attorney fees are awarded against Mother in the amount of
$20,000.00, payable to counsel for Father in 90 days.

87. Mother has willfully failed to pay her student loans or refinance
same so that Father’s credit is not affected, in violation of the Court’s
Orders.

Id. at 30-31.

[17] In support of his modification petition, Father claims that Mother’s egregious

and ongoing pattern of disregarding his visitation rights and filing

unsubstantiated allegations of abuse has been detrimental to his relationship

with the Children and to their emotional health. See Ind. Code § 31-17-2-8(a)(6)

(in determining best interests, the trial court shall consider all relevant factors,

including “the mental and physical health of all individuals involved.”). A

custodial parent’s general lack of cooperation or isolated acts of misconduct

cannot serve as a basis for custody modification. Hanson v. Spolnik, 685 N.E.2d

71, 78 (Ind. Ct. App. 1997), trans. denied. However, “[i]f one parent can

demonstrate that the other has committed misconduct so egregious that it

places a child’s mental and physical welfare at stake, the trial court may modify

the custody order.” Id.; Albright v. Bogue, 736 N.E.2d 782, 790 (Ind. Ct. App.

2000).

[18] With respect to the cases cited by Father and by the trial court in its order, we

recognize that those cases involved this Court’s affirmances of trial court orders

granting custody modification petitions based on the custodial parent’s pattern

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 16 of 20
 of egregious conduct jeopardizing the emotional and physical wellbeing of the

child. Arms, 803 N.E.2d at 1210; Albright, 736 N.E.2d at 789; Hanson, 685

N.E.2d at 78-79. In contrast, here we are asked to reverse a trial court

judgment denying a custody modification petition where the evidence and

findings indicate a pervasive pattern of egregious behavior by the custodial

parent adversely affecting the children’s wellbeing. Although we are hesitant to

tread upon the trial court’s unique position as finder of both fact and law, we

note that our decision is based on the conclusions of law, which we review de

novo.

[19] We recognize that “the fact-finder is not required to accept the opinions of

experts regarding custody,” Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct.

App. 2000), but the findings here indicate that the trial court did accept the

GAL’s conclusions and applied them to other determinations such as its

contempt citation against Mother. In fact, in Conclusion 75, the trial court

characterizes Mother’s conduct as causing irreparable harm not only to the

Children’s relationship with Father but also to “their emotional wellbeing.”

Appellant’s App. at 30. Yet, with respect to the Children’s best interests, the

trial court states in Conclusion 85, “the Children are developing well according

to their ages and maturity.” Id. at 31. These conclusions are inconsistent, and

the findings do not support the court’s conclusion regarding best interests. For

example, the findings include references to G.M.’s suicidal thoughts and

Mother’s lack of response to them as well as information about C.M.’s

problems with lying and stealing.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 17 of 20
[20] The trial court’s conclusions characterize Mother’s contumacious conduct as

“continual” and the change in circumstances as “substantial and continuing.”

Id. at 30-31. Mother evidently did not learn from the 2012 proceedings but

instead persisted not only in denying Father his parenting time but also in

falsely accusing him of abuse. The evidence in these proceedings is similar in

nature to that of the 2012 proceedings, and in the intervening years, the

Children have been further deprived of Father’s parenting time and are more

fearful of him due to the protracted lack of contact and Mother’s doubling

down on her unsubstantiated accusations against him. In other words, Mother

has created the problem from which she now benefits.

[21] After entering finding after finding illustrating Mother’s audacious and

successful attempts to alienate Father from the Children, the trial court

concluded that such conduct “does not warrant a change of custody.” Id. at 31.

At the same time, the court emphasized that “this order is intended to make

clear that reunification of children and Father is the paramount concern.” Id. at

30. While we appreciate the trial court’s sensitivity to “the need for a

therapeutic period of reunification” between Father and the Children, id. at 31,

we fail to see why the therapeutic approach cannot be coupled with the change

in custody to Father. Mother has shown a pervasive and consistent disregard

for legal processes and court orders and, having once again averted a change in

physical custody, there is little incentive for her to suddenly comply with the

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 18 of 20
 court’s order concerning the Children’s measured reunification with Father. 7

Even if she does, there is no reason to believe that she would do anything other

than undermine it.

[22] Simply put, time is running out. These children, ages one and three at the time

of the divorce, are now eleven and thirteen. They not only have been deprived

of their relationship with Father but also have been relentlessly subjected to

Mother’s jaded opinions of him and her egregious and unsubstantiated

accusations against him. The overwhelming evidence and extensive findings of

fact show a mother who has jeopardized her children’s emotional health in

attempting to settle a score with their father. In ruling on Father’s petition for

contempt, the trial court concluded that Mother had “irreparably harmed [the

Children’s] emotional wellbeing.” Appellant’s App. at 30. However, in

assessing the Children’s best interests, the court inexplicably concluded the

opposite. The findings support the trial court’s conclusion of Mother’s

irreparable harm to the Children; they do not support the trial court’s

determination concerning best interests. The trial court clearly erred in

concluding that the Children’s best interests do not warrant a change in

custody. Consequently, we reverse the denial of Father’s petition for custody

modification and remand for entry of judgment in his favor on this issue and a

new calculation of the parties’ child support obligations.

7
We sincerely hope that Mother has complied and that sufficient time has elapsed to have afforded the
Children the opportunity to become reacclimated to spending time with Father.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 19 of 20
[23] Reversed and remanded.

Brown, J., and Pyle, J., concur.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015 Page 20 of 20