MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 14 2016, 8:35 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Casey D. Cloyd Jennifer D. Wilson Reagan
Indianapolis, Indiana Wilson & Wilson
Greenwood, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angel Hill, September 14, 2016
Appellant-Respondent, Court of Appeals Case No.
41A01-1510-DR-1730
v. Appeal from the Johnson Circuit
Court
Bradley S. Bergman, The Honorable Michael R. Auger,
Appellee-Petitioner. Judge pro tem
Trial Court Cause No.
41C01-0407-DR-266
Pyle, Judge.
Statement of the Case
[1] Angel Hill (“Mother”) appeals the trial court’s order granting her former
husband, Bradley S. Bergman’s (“Father”), motion to modify custody of their
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two minor children. On appeal, she argues that the trial court erred when it
modified custody in favor of Father because the evidence did not support its
findings, and the findings did not support its conclusion that there had been a
substantial change in the parents’ circumstances. Because we conclude that the
evidence did support the trial court’s findings, and its findings did support its
conclusion, we affirm.
Issue
Whether the trial court erred when it granted Father’s motion to
modify custody of his minor children.
Facts
[2] Mother and Father (collectively, “the parents”) married and had two children
together—S.B., born in July 1998, and B.B., born in December 2002
(collectively, “the children”). On June 17, 2004, the parents dissolved their
marriage and agreed that Mother would have primary physical custody of the
two minor children.
[3] Over ten years later, on March 5, 2014, Mother, filed a pro se notice of her
intent to relocate with the children from Whiteland, Indiana to Florida. At that
point, S.B. was fifteen years old and B.B. was eleven years old. Father objected
to the relocation, and the two entered into mediation. Through mediation, they
resolved the issue and filed a mediated agreed entry (“Agreed Entry”) with the
trial court on July 25, 2014. The trial court approved the Agreed Entry on
August 20, 2014. In the Agreed Entry, Mother agreed that she would not file
any further relocation requests before S.B. graduated from high school. This
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condition was dependent upon whether Mother or her significant other were
able to find any employment without relocating. Mother and Father also
agreed that they would “evenly divide all school expenses, including, but not
limited to, book fees and school clothing.” (App. 21).
[4] In spite of her agreement that she would not relocate, Mother moved to
Franklin, Indiana within two weeks of entering into the Agreed Entry and
failed to notify Father of the relocation. She lived there until November 2014.
While in Franklin, Mother enrolled B.B. in a Franklin public school and placed
S.B. in an online school. For at least a week during the school semester, S.B.
had to live with Mother’s friend because she did not have adequate internet
access at home for her online school. She also failed five out of her seven
classes that semester.
[5] In November 2014, Mother moved with the children to Martinsville, Indiana,
again failing to notify Father of the move. Father discovered that Mother had
moved with the children through Facebook. In Martinsville, Mother enrolled
both of the children in public schools, and S.B. began to get better grades in her
classes again. She received “‘As’ and ‘Bs’” and B.B. received “‘Cs and Ds.’”
(Tr. 26).
[6] On December 26, 2014, Father filed a motion to modify custody, parenting
time, and support (“custody motion”), as well as a request for a mediation
referral order. The trial court issued the referral for mediation, and the parents
entered into mediation again to discuss the matters Father had raised in his
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custody motion. This time, though, they could not resolve their disagreements
through mediation. As a result, the trial court held a hearing on Father’s
custody motion on September 1, 2015.
[7] At the custody modification hearing, Father testified to the above facts,
including that Mother had relocated twice without notifying him. He also
submitted evidence that he had spent $354.60 on school supplies for the
children. He testified that Mother had not paid for half of the school supplies as
required by the Agreed Entry.
[8] Also at the hearing, Father testified that he had been in Mother’s apartment the
previous Sunday and had observed that “[i]t was dirty and there [were] stains
on the floor and dirty clothes on the furniture.” (Tr. 12). He also said that it
“smelled like dog.” (Tr. 12). In contrast, he testified that he lived with his
mother, whose house was “immaculate.” (Tr. 13). He said that the children
had a room that they shared there.
[9] Finally, Father also testified that Mother had been posting pictures and
statements on Facebook that he believed were inappropriate because Mother
was friends on Facebook with S.B., who was only seventeen years old at that
point. He introduced two pictures from Mother’s Facebook profile as evidence.
In one picture, Mother appeared to be in a sex shop with her sister, making
lewd gestures with the merchandise. In another, Mother was “modeling a
bikini.” (Tr. 17).
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[10] Mother appeared pro se at the hearing. She testified that she had failed to
provide Father with notice of her relocations to Franklin and Martinsville
because she thought she was only required to give him notice if she moved to
Florida. She said that, even though she had not filed legal notice of her
relocation, she had orally informed Father of the move, and he had not missed
any of his parenting time as a result.
[11] At the conclusion of the hearing, the trial court took the matter under
advisement. Then, on September 24, 2015, the trial court granted Father’s
custody motion and awarded him primary physical custody. In its order, the
trial court found that there had been “a substantial and continuing change in
circumstances warranting a modification of [its] orders regarding custody.”
(App. 13). Specifically, it noted that Mother had relocated twice after she had
agreed not to do so and had failed both times to provide Father with notice of
the relocation. The court also found that:
Additionally, the evidence presented at the hearing on Father’s
petition further revealed the general pattern of instability in
Mother’s life. On the contrary, the evidence established that
Father consistently resided in the same residence, that the
children had their own room at Father’s house, that Father had
the children consistently nearly every weekend as well as nearly
all summer.
(App. 13). Based on these factors, the trial court concluded that it was in the
children’s best interests that Father be awarded primary physical custody and
that Mother be awarded parenting time in accordance with the Indiana
Parenting Time Guidelines. Mother now appeals.
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Decision
[12] Mother argues that the trial court erred in modifying custody of the children.
Specifically, she contends that: (1) there was no evidence that the trial court
considered the statutory factors it was required to consider prior to modifying
custody; (2) there was no evidence that her actions had a negative impact on the
children; and (3) the findings of fact that the trial court cited in support of its
conclusion that custody should be modified were isolated instances of
misconduct, which may not support a modification of custody. We will
address each of these arguments in turn.
[13] Under INDIANA CODE § 31-17-2-21, a 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 . . . .
The relevant factors the court may consider in making its determination are:
(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
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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.
(8) Evidence that a child has been cared for by a de facto
custodian . . . .
I.C. § 31-17-2-8.
[14] Where, as here, the trial court entered findings of fact and conclusions of law,
we apply a two-tiered standard of review.1 Heagy v. Kean, 864 N.E.2d 383, 388
(Ind. Ct. App. 2007), trans. denied. We first determine whether the evidence
supports the trial court’s findings of fact and then determine whether the
findings support the conclusions and judgment. Id. We may reverse the
judgment only if there is no evidence to support the findings or no findings to
support the judgment. Id. When conducting our review, we neither reweigh
the evidence nor reassess the credibility of the witnesses. Id. In addition, we
1
Notably, Father did not include this standard of review in his Appellee’s Brief. We remind Father’s
attorney that, pursuant to Appellate Rule (A)(8), the argument for each party must include, “for each issue, a
concise statement of the applicable standard of review[.]”
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view the evidence and inferences therefrom in the light most favorable to the
judgment. Id.
[15] Mother first argues that the trial court erred in modifying custody because there
was no evidence that the court considered the statutory factors listed in
INDIANA CODE § 31-17-2-8. However, we addressed the same issue in Kanach
v. Rogers, 742 N.E.2d 987, 989 (Ind. Ct. App. 2001), and held that, while a trial
court must consider the statutory factors and find that there has been a
substantial change, it need not enumerate the factors or specify which of the
factors has substantially changed. Here, there was evidence that the trial court
considered at least one of the factors—the children’s adjustment to their
home—because it found that Mother had relocated twice even though she had
agreed not to do so in the Agreed Entry. The trial court also found that
Mother’s housing was generally unstable compared to Father’s. Accordingly,
we do not find it dispositive that the trial court did not explicitly cite to
INDIANA CODE § 31-17-2-8.
[16] Next, Mother contends that there was no evidence that any of her actions had a
negative impact on the children. However, she does not cite any authority for
her proposition that a custody order must have a negative impact on a child
before the trial court may modify the custody arrangement. To the contrary,
our standard is to determine what is in “best interests of the child[ren].” I.C. §
31-17-2-21. This standard applies even in cases where neither parent has had a
negative impact on his or her children. See id.
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[17] Finally, Mother asserts that the trial court improperly modified custody because
her actions constituted only “isolated instances of misconduct.” (Mother’s Br.
14). As evidence that her misconduct was “isolated,” she notes that she moved
the children only twice, that S.B.’s grades had improved in her new Martinsville
public school prior to the hearing, and that Father’s testimony that her house
was not clean was based on only one visit to her house. She cites to Wallin v.
Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App. 1996), in support of her argument
that such acts were improper to support a custody modification. There, we held
that a noncustodial parent must show more than isolated acts of misconduct by
the custodial parent to warrant a modification of custody. Id.
[18] Here, however, Father has shown more than isolated acts of misconduct. We
conclude that Mother’s argument is merely an invitation to reweigh the
evidence, which we will not do. Heagy, 864 N.E.2d at 388. The trial court
specifically found that her conduct “revealed the general pattern of instability,”
(App. 13), and it is not our place to re-characterize the evidence. See id.
Accordingly, we affirm the trial court’s order granting Father’s motion to
modify custody.
[19] Affirmed.
Kirsch, J., and Riley, J., concur.
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