MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
May 25 2017, 10:04 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Timothy J. Lemon Lizbeth W. Pease
Knox, Indiana Nichols & Wallsmith
Knox, Indiana
IN THE
COURT OF APPEALS OF INDIANA
S. S., May 25, 2017
Appellant-Respondent, Court of Appeals Case No.
75A03-1612-DR-2887
v. Appeal from the Starke Circuit
Court
C. D., The Honorable Kim Hall, Judge
Appellee-Petitioner. Trial Court Cause No.
75C01-1210-DR-109
Bailey, Judge.
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Case Summary
[1] S.S. (“Mother”) appeals an order granting the custody modification petition of
C.D. (“Father”) as to two of their three children. She presents the sole issue of
whether the custody modification order lacks sufficient evidentiary support.
We affirm.
Facts and Procedural History
[2] The parties were married on August 9, 1999, and separated on March 20, 2012.
They had three children, M.D. (born in 1999), A.D. (born in 2001), and L.D.
(born in 2009). The marriage was dissolved on November 19, 2013. The
parents shared legal custody of all three children. Father was awarded the
physical custody of M.D. and Mother was awarded the physical custody of the
two younger children. After Father experienced a house fire and housing
insecurity, M.D.’s custody was changed to Mother.
[3] In 2016, when Mother had physical custody of all the children, M.D. wrote a
letter to the trial court expressing her desire to return to Father’s custody.
Around the same time, A.D. contacted Father via text to report that L.D. had
been struck in the face by his maternal grandfather.1 Both M.D. and A.D. sent
Father photo images showing L.D.’s black eye and swollen lip.
1
The Department of Child Services investigated and concluded that L.D.’s injuries were self-inflicted.
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[4] On September 20, 2016, Father filed a petition to modify custody of M.D. and
L.D.2 In the petition, Father stated that circumstances had changed
substantially. He averred that M.D. wished to return to his custody. He also
averred that L.D. had been hit in the face by an “unknown” person, resulting in
a black eye. (App. at 10.) Father alleged that L.D. had appeared for parenting
time with bruises “on a number of occasions.” (App. at 10.) Finally, Father
asserted that L.D. is a child with behavioral issues but Mother refused testing by
a specialist. Father requested, alternatively, physical custody of L.D. or an
order that Mother be required to obtain further evaluation for L.D.
[5] Hearings were conducted on November 1 and November 9, 2016. The trial
court also conducted an in-camera interview with M.D. On November 30,
2016, the trial court granted Father’s petition to modify physical custody of
M.D. and L.D. to him. Mother now appeals.
Discussion and Decision
[6] Indiana Code Section 31-17-2-21 provides that 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 under [Ind. Code Section 31-17-2-8] …” Indiana Code
Section 31-17-2-8 sets forth relevant factors that must be considered, including:
2
By all indications, A.D. wished to remain with Mother and Father did not oppose this.
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(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.
(8) Evidence that the child has been cared for by a de facto
custodian …
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The party seeking to modify custody bears the burden of demonstrating that the
existing custody order should be altered. Steele-Giri v. Steele, 51 N.E.3d 119, 124
(Ind. 2016).
[7] On appeal from a family law decision, we accord great deference to the trial
court judge, who was in the position to see witnesses, observe their demeanor,
and scrutinize their testimony. Id. We do not reverse a decision because the
evidence might support some other conclusion; rather, the evidence must
positively require the conclusion contended for by the appellant before there is a
basis for reversal. Id. Appellate judges will not reweigh the evidence nor
reassess witness credibility, and we will view the evidence most favorably to the
judgment. Id.
[8] The evidence most favorable to the judgment is that M.D.’s and Mother’s
relationship had deteriorated to the point of a physical altercation. When
police temporarily removed M.D. from Mother’s home, she was taken to an
aunt’s home because Mother advised the police that Father did not possess
parental rights. M.D. was permitted to call Father only after police were
summoned to the aunt’s home.
[9] Father and the paternal grandmother each testified that L.D. had often
appeared for parenting time with bruises. The grandmother testified that she
had seen a handprint bruise. Father recalled seeing bruising on one arm from
the wrist to the elbow and other bruises on L.D.’s hips and thigh. He described
one bruise as a “baseball size.” (Tr. Vol. II at 19.) Father testified that he
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confronted Mother about corporal punishment and she replied that a paddle
was “the only thing that works.” (Tr. Vol. II at 22.) Per Father’s testimony, he
had encouraged Mother to obtain testing of L.D. “for behavioral issues,” but
Mother had not agreed. (Tr. Vol. II at 25.) She had obtained prescriptions for
L.D., but stopped and started his medication.
[10] After L.D. was barred from riding the school bus,3 Father had urged Mother to
investigate special education options for L.D. Mother initially disagreed with
that plan. However, after school personnel urged the use of an Individualized
Educational Plan, Mother agreed but did not inform Father of the meeting. On
at least two occasions, Mother removed Father’s information from the school
records. She did not consult Father as to medical appointments and did not
inform him when M.D. was involved in a vehicle accident.
[11] Mother concedes that there had been a change in the relationship between
herself and M.D. However, she argues that M.D.’s expressed wishes provide
an inadequate basis for a change of custody. She also notes that there was
evidence of a lack of parental communication and cooperation, but insists that
her shortcomings in this regard did not amount to egregious behavior. Mother
requests a reweighing of the evidence, something we will not do. Steele-Giri, 51
N.E.3d at 124.
3
This was apparently due to L.D. banging his head on the bus windows when he was upset.
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[12] The evidentiary record discloses evidence of a change in one or more statutory
circumstances that a trial court is to consider in a custody modification
proceeding. Also, there is evidence to support the trial court’s determination
that a change of custody is in the best interests of M.D. and L.D.
[13] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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