FILED
Jul 28 2016, 8:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Bryan L. Ciyou Daniel G. Petrie
Darlene R. Seymour Henthorn, Harris & Weliever
Ciyou & Dixon, P.C. Crawfordsville, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jessica Robertson, July 28, 2016
Appellant-Petitioner, Court of Appeals Case No.
54A01-1509-DR-1374
V. Appeal from the Montgomery
Superior Court
Brian Robertson, The Honorable Heather Dennison,
Appellee-Respondent. Judge
Trial Court Cause No.
54D01-0912-DR-517
Pyle, Judge.
Statement of the Case
[1] In this child custody case, Jessica Robertson (“Mother”) argues that the trial
court abused its discretion in modifying custody of the parties’ two young
children in favor of Brian Robertson (“Father”). On cross-appeal, Father
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argues that this Court does not have jurisdiction over the matter because
Mother failed to timely file her Notice of Appeal. In light of Mother’s attempt
to perfect a timely appeal and the constitutional dimensions of the parent-child
relationship, we review Mother’s appeal on the merits. Further, because the
evidence supports the trial court’s modification of custody in favor of Father,
we find no abuse of discretion and affirm.
[2] We affirm.
Issues
1. Whether this appeal is reviewable on the merits.
2. Whether the trial court abused its discretion in modifying
custody in favor of Father.
Facts
[3] Mother and Father’s marriage was dissolved in 2010. At that time, the
dissolution court granted Mother custody of the parties’ two children, K.R.,
born in 2006, and C.R., born in 2007. Mother married Damien Terry
(“Stepfather”) in October 2014. In February 2015, Father filed a petition to
modify custody and a request for a guardian ad litem (“GAL”). In the petition,
Father alleged that Stepfather was “a bad influence and example for the
children.” (App. 23). Specifically, Father alleged that Stepfather “use[d] illegal
substances and ha[d], at times, been the sole caretaker of the children.” (App.
23).
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[4] The trial court appointed a GAL, which filed its report in July 2015. The trial
court subsequently held a two-day hearing on Father’s petition on August 7 and
August 12, 2015. Testimony at the hearing revealed that Father was stationed
in the military at Fort Riley, Kansas. He had requested an early discharge
because of family issues and expected to be released from his military obligation
within sixty days. He planned to relocate to Crawfordsville, Indiana, to be
closer to his children and was seeking employment in the area. He also planned
to further his education at Ivy Tech. At the time of the hearing, Father spoke
with the children on the phone two to three times per week and had just spent
ten days with them.
[5] Father expressed concern that when he talked to his children on the telephone,
Stepfather frequently interrupted the conversation and told the children what to
say. At times, the children told Father that they could not answer his questions
because Stepfather would be angry. Father also expressed concern that K.R.
was in the car with Stepfather when Stepfather was arrested for driving while
suspended. Father was also worried that Stepfather has fallen asleep holding a
cigarette in his hand. Father testified that he had remained close to Mother’s
family, and that Mother’s mother (“Grandmother”) and Mother’s sister
(“Aunt”) both supported his request for custody of the children.
[6] Grandmother testified that she has observed significant changes in the
children’s behavior since Mother married Stepfather. Specifically, K.R.
recently cried and asked Grandmother to call the police so that he would not
have to return to Mother’s home. Grandmother explained that Mother used to
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be very attentive to her children but had moved them to “the back burner”
following her marriage to Stepfather. (Tr. 123). Grandmother opined that it
was not in the children’s best interests to continue in Mother’s custody.
[7] Mother’s friends, Adam and Nekisha Shahan (“Adam” and “Nekisha”), who
also testified at the hearing, noticed that K.R. and C.R. had become lethargic
and withdrawn. Adam and Nekisha’s children regularly played with K.R. and
C.R. until Mother married Stepfather. At the time of the hearing, Mother
regularly denied requests for the children to play together. Adam further
testified that the children now cowered when he reached out to hug them or pat
them on the head. He also testified that he attended a family Christmas dinner
with Mother’s family in 2014. At one point, when K.R. walked past Stepfather
and said nothing, Stepfather grabbed K.R. by the arm and screamed, “I told
you it’s not time to open presents yet so go sit down.” (Tr. 84). That same day,
Stepfather passed out at the dinner table while he was eating and later rested his
head on a window sill while standing at the sink. Adam also saw Stepfather
“down on one knee talking to this cat in weird voices, just like, like he was
having a conversation with it.” (Tr. 85). Nekisha, a registered nurse that
routinely works with addicts and patients abusing prescription medications,
believed that Stepfather was abusing controlled substances. She also believed
that it was not in the children’s best interests to continue in Mother’s custody.
[8] The GAL testified that Stepfather did not treat the children kindly and had a
forceful attitude with them. The GAL pointed out that Stepfather had a
criminal record, was unemployed, and tried to isolate Mother and the children
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from Mother’s family and friends. The GAL recommended that custody of the
children be placed with Father because: (1) Mother placed her relationship with
Stepfather ahead of her relationship with her children; (2) Stepfather was not a
proper role model; and (3) it was not in the children’s best interests to continue
in Mother’s custody. The GAL agreed that Stepfather “coming into the picture
[was] a continuing and substantial change of circumstances.” (Tr. 314).
[9] During the hearing, Stepfather admitted that he had a criminal history that
included convictions for burglary, theft, unlawful possession of a syringe,
possession of a synthetic drug, and driving while suspended. He also admitted
that he took prescription pain relievers for his back, including hydrocodone,
percocet, and oxycodone, and neurotonins, including gabapentin, for nerve
damage in his legs. He admitted that he had hit C.R. for playing at the dinner
table and that he had driven with K.R. in the car when he knew that his license
was suspended.
[10] As part of its consideration of changed circumstances, the trial court
interviewed K.R. in chambers. However, the interview was not recorded. At
the end of the two-day hearing, the trial court orally concluded that “based
upon the evidence that the child[ren]’s welfare . . . is at risk in the continued
custody of their mother, . . . the children shall be placed immediately in the
custody of their father until further order of the Court.” (Tr. 322). Because
Mother had requested special findings pursuant to Indiana Trial Rule 52(A), the
trial court gave the parties fourteen days to submit their proposed findings.
That same day, the trial court issued a written provisional order which awarded
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Father temporary emergency custody until further order of the court and
ordered the parties to submit proposed findings of fact and conclusions no later
than August 26, 2015. The trial court also ordered Father to notify the court
within forty-eight hours of “who shall be named as temporary custodian in case
Father becomes unable or unwilling to continue as custodian due to his death
or disability.” (App. 16).
[11] Two days later, on August 14, 2015, Father filed a motion to appoint Aunt as
temporary custodian for the children, which the trial court granted. That same
day, Mother filed an objection to the form of Father’s motion as well as a
motion to restore primary custody to her should Father leave the area without
the children. On August 18, the trial court issued an order, which denied
Mother’s request to restore primary custody to her.
[12] Both parties filed proposed findings of fact and conclusions on August 26, 2015.
On September 11, 2015, before the trial court entered a final custody
modification order, Mother filed a Notice of Appeal, wherein she stated that
she was appealing the trial court’s: (1) August 12 order regarding temporary
emergency custody; (2) August 14 order regarding the appointment of a
temporary custodian; and (3) August 18 order regarding Mother’s objection to
the form of Father’s motion to appoint a temporary custodian and motion to
restore physical custody.
[13] Shortly thereafter, on October 19, Father filed a notice of relocation and a
motion to terminate the temporary custodian, wherein he explained that he had
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been honorably discharged from the army and had returned to Indiana where
he was living with Grandmother. An entry in the Chronological Case
Summary (“CCS”) reveals that the trial court took no action on the motion
“due to jurisdiction being with Indiana Court of Appeals.” (App. 13).
[14] Father also filed in this Court a Motion to Dismiss Mother’s appeal.
Specifically, Father argued that Mother’s appeal should be dismissed because it
was not the appeal of a final order. According to Father, the trial court could
not issue Mother’s requested findings of fact and conclusions until the appeal
was dismissed. Mother responded that these appealed orders, which modified
custody “under the guise of being ‘temporary’” and appointed a third party as
the Children’s guardian, were “de facto if not actual, final custody [o]rders.”
(Mother’s Response 2). This Court’s motions panel denied Father’s motion to
dismiss, temporarily stayed the appeal, and ordered the trial court to issue its
final findings of fact and conclusions on Father’s custody modification petition.
[15] The trial court issued its final order, which included ten pages of findings of fact
and conclusions, on January 19, 2016. In the order, the trial court concluded
that based on the evidence presented at the hearing, modification of custody in
favor of Father was in the children’s best interests. The court further concluded
that “there ha[d] been a substantial change to one or more of the statutory
factors for the Court’s consideration regarding custody such that a modification
[was] necessary.” (App. 48). According to the trial court’s order:
Mother ha[d] supplanted the best interests of the children with
her own desires and her relationship with her now husband.
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Mother [was] certainly free to choose with whom she want[ed] to
be in a relationship but when she [did] so at the detriment to the
children, she [had to] live with the consequences. It [was]
irrefutable that the children [had] been adversely affected by the
current circumstances.
(App. 48).
[16] In March 2016, Father filed with this Court a second motion to dismiss
Mother’s appeal and a request for attorney fees. The gravamen of his argument
was that Mother had failed to file a Notice of Appeal after the trial court had
issued its final order and that her appeal of the August 2015 orders was an
impermissible interlocutory appeal that had not been certified. Mother
responded that Father’s second motion to dismiss was identical to his first
motion to dismiss, which had been denied. The motions panel denied Father’s
second motion to dismiss and ordered Father to file his appellate brief within
thirty days of the date of its order.
[17] Mother now appeals the trial court’s modification of custody in favor of Father.
Decision
[18] Mother argues that the trial court erred in modifying custody in favor of Father.
On cross-appeal, Father resurrects his motion to dismiss arguments, contending
that this Court does not have jurisdiction over the matter. Because Father’s
argument on cross-appeal is potentially dispositive, we address it first.
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1. Review on the Merits
[19] On cross-appeal, Father argues that this Court does not have jurisdiction over
the matter. The gravamen of his argument is that Mother improperly filed a
Notice of Appeal for the August 2015 interlocutory order and then failed to
properly file a Notice of Appeal after the trial court issued its “final appealable
order in the form of the trial court’s findings of fact and conclusions of law.”
(Father’s Br. 5).
[20] First, we note that the motions panel previously denied Father’s motions to
dismiss on the same issues. We are reluctant to overrule orders issued by the
motions panel unless we have determined that there is clear authority
establishing that the motions panel erred. Estate of Mayer v. Lax, Inc., 998
N.E.2d 238, 245 (Ind. Ct. App. 2013), trans. denied. We find no such authority
in this case. Rather, although cited by neither party, the holding in In re
Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), is instructive on this issue and
supports the motions panel’s decisions.
[21] In O.R., the trial court entered a May 9, 2013, order, which concluded that
Father’s consent to O.R.’s adoption was not required because Father had failed
to communicate with and support O.R. The Notice of Appeal was due June
10, 2013. On June 6, 2013, Father, stating that he was acting on the advice of
his trial counsel, wrote a letter to the trial court clerk requesting the
appointment of appellate counsel for the purpose of appealing the May 9 order.
Father’s counsel did not file a Notice of Appeal. However, on June 19, 2013,
nine days after the Notice of Appeal was due, trial counsel filed a motion to
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withdraw. The trial court granted the motion and entered an order appointing
appellate counsel on July 3. On July 18, Father’s counsel filed an amended
Notice of Appeal. Counsel argued that Father’s June 6 pro se letter to the trial
court clerk should be deemed a timely filed Notice of Appeal.
[22] Although the motions panel granted Father’s petition to accept the amended
Notice of Appeal, the writing panel of this Court sua sponte dismissed Father’s
appeal on grounds that it lacked subject matter jurisdiction because Father did
not timely file his Notice of Appeal. See In re Adoption of O.R., No. 21A01-1307-
AD-322, 2014 WL 819428 (Ind. Ct. App. Feb. 28, 2014). The Indiana Supreme
Court granted transfer and concluded that although a party forfeits its right to
appeal for failing to timely file a Notice of Appeal, this untimely filing is not a
jurisdictional defect depriving the appellate courts of authority to entertain the
appeal. O.R., 16 N.E.3d at 971 (citing Ind. Appellate Rule 9(A)). Rather, the
Indiana Supreme Court explained that “timely filing relates neither to the
merits of the controversy nor to the competence of the courts on appeal to
resolve the controversy.” Id. Instead, the timely filing of a Notice of Appeal is
jurisdictional only in the sense that it is a Rule-required prerequisite to the
initiation of an appeal in the Court of Appeals. Id.
[23] The Indiana Supreme Court, therefore, concluded that although Father’s
untimely filing of his Notice of Appeal resulted in Father losing his right to
appeal, the question was whether there were “extraordinarily compelling
reasons” why the appeal should have been restored. Id. This question was
answered in the affirmative for three reasons. First, the Appellate Rules
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themselves provide a mechanism allowing the Court to resurrect an otherwise
forfeited appeal. See App. R. 1 (providing in relevant part that the “Court may,
upon the motion of a party or the Court’s own motion, permit deviation from
these Rules”). Id. at 972. Second, Father attempted to perfect a timely appeal
when he sought appointment of appellate counsel for the purpose of appealing
the decision and then filed an amended Notice of Appeal, which the motions
panel accepted as being sufficient. Id. Third, a parent’s interest in the custody
of his child is a fundamental liberty interest, and the parent-child relationship is
one of the most valued relationships in our culture. Id.
[24] We reach the same result in the case before us for the same reasons.
Specifically, in light of: (1) Appellate Rule 1; (2) Mother’s attempt to perfect a
timely appeal by filing the September 2015 Notice of Appeal, which the
motions panel accepted as being sufficient; and (3) the constitutional
dimensions of the parent-child relationship, we conclude that Mother’s appeal
also deserves a determination on the merits.
[25] 2. Custody Modification
[26] Mother argues that the trial court abused its discretion in modifying custody in
favor of Father.1 A trial court’s custody determination is afforded considerable
1
Mother also argues that the trial court erred in: (1) appointing a third-party as temporary custodian; and (2)
entering a general judgment when special findings were requested by Mother. However, both of these issues
arise from the August 2015 provisional order. That order was extinguished by the final order issued in
January 2016. See Mosser v. Mosser, 729 N.E.2d 197, 200 n. 3 (Ind. Ct. App. 2000) (explaining that the
provisional order merges with and is extinguished by the final order). These issues are therefore moot. See
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deference on appeal as it is the trial court that sees the parties, observes their
conduct and demeanor, and hears their testimony. Kondamuri v. Kondamuri,
852 N.E.2d 939, 945-46 (Ind. Ct. App. 2006). Thus, on review, we will not
reweigh the evidence, judge the credibility of witnesses, or substitute our
judgment for that of the trial court. Id. at 946. We will reverse the trial court’s
custody determination only if it is clearly against the logic and effect of the facts
and circumstances or the reasonable inferences drawn therefrom. Id.
[27] Where, as here, the trial court issued findings of fact and conclusions at the
request of one of the parties, we apply a two-tiered standard of review. Maddux
v. Maddux, 40 N.E.3d 971, 974 (Ind. Ct. App. 2015). First, we determine
whether the evidence supports the findings, and second, whether the findings
support the judgment. Id. The trial court’s findings are controlling unless the
record includes no facts to support them either directly or by inference. Id.
Legal conclusions, however, are reviewed de novo. Id. at 975. We set aside a
trial court’s judgment only if it is clearly erroneous. Id. at 974. “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. at 974-75.
[28] The trial court may modify a child custody order when: “(1) the modification is
in the best interests of the child; and (2) there is a substantial change in one or
more of the factors that the court may consider under section 8 and, if
Francies v. Francies, 759 N.E.2d 1106, 1110-11 (Ind. Ct App. 2001) (explaining that final custody
determination renders provisional custody determination moot), reh’g denied, trans. denied.
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applicable, section 8.5 of this chapter.” IND. CODE § 31-17-2-21. The trial court
is also required to consider the factors of section 8, which include: (1) the
child’s age and sex; (2) the wishes of the parents; (3) the child’s wishes; (4) the
relationship the child has with his or her parents, siblings, and others; (5) the
child’s adjustment to home, school, and community; (6) the mental and
physical health of all involved; (7) any evidence of domestic or family violence;
and (8) any evidence that the child has been cared for by a defacto custodian.
I.C. § 31-17-2-21; I.C. § 31-17-2-8(1)-(8).
[29] Here, Mother contends we “should reverse the trial court’s order modifying
custody to Father as there is no evidence in the Record to show a substantial
change in circumstances relating to the Children.” (Mother’s Br. 17).
However, our review of the evidence reveals that the children’s relationships
with family and friends have changed since Mother married Stepfather.
Specifically, the formerly carefree and talkative children have become
withdrawn and lethargic. They are no longer allowed to spend as much time as
they previously did with family and friends, and when the children do see
friends, they cower when the friends attempt to hug them. In addition, Mother
has been less attentive to the children since she married Stepfather.
[30] The evidence further reveals that Stepfather has shown signs of abusing
prescription medication for back pain and nerve damage. At a family event, he
passed out mid-bite at the dinner table and exhibited odd behavior by talking to
a cat. Another time, he fell asleep while smoking a cigarette. Stepfather also
slapped C.H. for laughing at the dinner table and was arrested for driving while
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suspended when K.R. was in the car. In addition, the trial court met in
chambers with K.R., who had previously asked Grandmother to call the police
so that he would not have to return to Mother’s home.
[31] This evidence supports the trial court’s conclusion that there has been a
substantial change in circumstances relating to the children and that
modification of custody in favor of Father is in their best interests. The trial
court did not abuse its discretion in modifying custody in favor of Father.
[32] Affirmed.
Kirsch, J., and Riley, J., concur.
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Jessica Robertson v. Brian Robertson
Combined Opinion