MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 30 2018, 8:51 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
Charles Bugby
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re The Paternity of: K.B.: April 30, 2018
Court of Appeals Case No.
Kyle Burkholder, 18A02-1704-JP-721
Appellant-Petitioner, Appeal from the Delaware Circuit
Court
v. The Honorable Marianne
Voorhees, Judge
Amanda Jensma, Trial Court Cause No.
Appellee-Respondent. 18C01-1503-JP-50
Robb, Judge.
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Case Summary and Issues
[1] Kyle Burkholder (“Father”) and Amanda Jensma (“Mother”) are the parents of
K.B. and share joint legal custody with Mother having primary physical
custody. In 2015, Father sought, among other things, a change of custody.
After a hearing, the trial court granted Mother sole legal custody and ordered
Father to pay Mother’s attorney fees. Father now appeals, raising two issues:
1) whether the trial court abused its discretion in modifying legal custody; and
2) whether the trial court abused its discretion in ordering Father to pay
Mother’s attorney fees. Concluding the trial court did not abuse its discretion
with respect to the modification of legal custody or attorney fees, we affirm.
Facts and Procedural History
[2] We begin by noting that although Father’s brief contains a section headed
“Statement of Facts,” Brief of Appellant at 4, there are no facts contained
therein. Instead, the “Statement of Facts” is a recitation of the procedural
history of the case in the trial court, beginning with the filing of Father’s
petition to modify custody.1 This section concludes with the statement, “Facts
will be supplemented in the argument for brevity.” Id. at 6. Although the
1
This information belongs in the “Statement of the Case” section of the brief, see Ind. Appellate Rule
46(A)(5), (6), but in this case, the “Statement of the Case” is more a Summary of the Argument, a section
which does not appear at all in this brief. Additionally, we note that although in some cases, the relevant
facts may be the procedural facts, this is not one of those cases, as the question of which party should have
custody of a child is highly fact sensitive. See Steele-Giri v. Steele, 51 N.E.3d 119, 125 (Ind. 2016).
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Argument section does include some facts, they are not presented in a narrative
fashion as required by rule, and they are not stated in accordance with the
standard of review, but rather are presented in the light most favorable to
Father. See App. R. 46(A)(6)(b), (c). The purpose of our appellate rules is to
aid and expedite review and to relieve this court of the burden of searching the
record and briefing the case. Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct.
App. 2003).2 Unfortunately, Mother has not filed an appellee’s brief to assist
this court in understanding the facts underlying the issues in this appeal. We
have not undertaken the burden of searching the record for the facts, but
because of the importance of the issue presented, we have attempted to discern
the facts as clearly as we can from the brief and the trial court’s order.
[3] K.B. was born out of wedlock in May 2014, and Father and Mother shared
joint legal custody of K.B. with Mother having primary physical custody. It
appears, with parenting time, they spend approximately equal time with K.B.
K.B. has been referred to Indiana’s First Steps program and has certain medical
issues. Mother and Father disagree about the diagnosis and/or appropriate
treatment for K.B. In March 2016, Father filed his petition for change of
custody alleging Mother had failed to enroll K.B. in the First Steps program or
was not including Father in the process, and further alleging Mother had failed
to follow through on medical treatment. He therefore asserted “circumstances
have changed to make previous orders in this matter unreasonable” and
2
We therefore remind counsel to follow the dictates of the rules in future filings with this court.
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requested an order granting him custody of K.B. Appellant’s Appendix,
Volume 2 at 24. Mother responded by filing her own petition to modify
custody to grant her sole legal custody of K.B., alleging Father “fails and/or
refuses to discuss important matters regarding [K.B.], the most recent matter
regarding the minor child’s health care.” Id. at 31. The parties each filed
several Petitions for Citation, alleging shortcomings by the other.
[4] The trial court heard testimony over three days. The trial court’s order sums up
the situation after the second day of hearings:
Shockingly, after Five Hours and Thirty Minutes of evidence
during two separate hearings, in which the parties fiercely argued
whether [K.B.] should see an ENT, [Father] took matters into his
own hands and took [K.B.] to an ENT. (Using a rather
unorthodox if not suspect method for the referral, i.e., asking a
friend who is an anesthesiologist to make the referral.) This
conduct shows total disrespect for the Court and Court orders
and to the child’s mother as well. The Court cannot condone
this conduct. For this behavior, [Father] will now lose his right
to joint legal custody and will be responsible for [Mother’s] total
attorney fee bill.
At the conclusion of [the second day of] hearing, [Father] asked
for one more hearing date so he could recall Dr. Byrn about the
ENT issue and call his fiancé [sic] in rebuttal. In open court, the
parties were given . . . the next date. Clearly, the ENT issue was
still open and unresolved and the prior order that neither parent
take [K.B.]to a physician without the other’s consent and
knowledge was in full force and effect. [Father] admitted during
the [final] hearing, that he had violated this order when he took
[K.B.] to Dr. Whiteman.
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Id. at 13-14.
[5] With respect to the change of custody, the trial court elaborated:
12. Custody Issues: [Father’s] Petition to Modify Custody is
denied. No change in circumstances has occurred to support a
custody modification in [Father’s] favor.
As to [Mother’s] Petition to Modify Joint Legal Custody into
Sole Legal and Physical Custody, it is apparent the parties cannot
work together and communicate concerning [K.B.’s] issues.
[Mother] is following what [K.B.’s] pediatrician has advised, and
[Father] cannot wait and follow the pediatrician’s guidance but
wants answers and tests and results now. [Mother] has expressed
valid concerns, if [Father] continues to have joint legal custody,
that he may submit [K.B.] to further testing and procedures
without her approval and knowledge. [Father] has demonstrated
he will violate orders, and he has admitted he violated the Court
order.
[Mother’s] Petition to Modify is well taken and should be and
hereby is granted. [Mother] shall have Sole Legal and Physical
Custody of [K.B.] [Mother] shall continue to discuss issues
regarding [K.B.] with [Father] and listen to his input, but she will
make the final decisions.
Id. at 17-18.
[6] And with respect to the attorney fee request, the trial court found:
Based upon the above findings, the Court finds [Father]
disregarded a court order not only once, but twice, by taking
[K.B.] to physicians other than [his pediatrician] without
[Mother’s] knowledge and consent. [Father’s] conduct has not
advanced [K.B.’s] best interests in any way . . . .
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[Father] should pay and hold [Mother] harmless for the fees she
owes [her attorney]. Pursuant to her fee Affidavit, which the
Court finds reasonable in time and rate, the Court finds [Father]
should pay [Mother’s attorney] $3,919.00 on or before July 31,
2017.
Id. at 19. Father now appeals.
Discussion and Decision
I. Change of Custody
[7] Father claims the trial court abused its discretion in granting sole legal custody
of K.B. to Mother. We review custody modifications for an abuse of discretion
“with a preference for granting latitude and deference to our trial judges in
family law matters.” Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App.
2011), trans. denied. This is because it is the trial court that observes the parties’
conduct and demeanor and hears their testimony firsthand. In re Paternity of
C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012), trans. denied. We will not
reweigh the evidence or judge the credibility of the witnesses. Id. Rather, we
will reverse the trial court’s custody determination only if the decision is
“clearly against the logic and effect of the facts and circumstances or the
reasonable inferences drawn therefrom.” Id. (citation omitted). “[I]t is not
enough that the evidence might support some other conclusion, but it must
positively require the conclusion contended for by the appellant before there is a
basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). It is not
impossible to reverse a trial court’s decision regarding child custody on appeal,
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but given our deferential standard of review, it is relatively rare. See Montgomery
v. Montgomery, 59 N.E.3d 343, 350 (Ind. Ct. App. 2016), trans. denied.
[8] When modifying custody, the trial court must consider three statutes: 1)
Indiana Code section 31-14-13-6, which states modification is only appropriate
when it is in the best interests of the child and there is a substantial change in
one or more of the factors considered when making an initial custody order; 2)
Indiana Code section 31-14-13-2, the factors for making an initial custody
determination; and 3) Indiana Code section 31-14-13-2.3, the factors to be
considered in awarding joint custody. See Miller v. Carpenter, 965 N.E.2d 104,
109 (Ind. Ct. App. 2012) (discussing modification in a dissolution context,
citing dissolution statutes which are identical in all relevant respects to the
statutes relevant to paternity cases). Particularly relevant to whether a court
should modify joint legal custody to sole legal custody is whether there has been
a substantial change in one or more of the factors the trial court considered
when making the initial award of joint custody. Julie C. v. Andrew C., 924
N.E.2d 1249, 1260 (Ind. Ct. App. 2010). Those factors are:
(a) [T]he court may award legal custody of a child jointly if the
court finds that an award of joint legal custody would be in the
best interest of the child.
***
(c) In determining whether an award of joint legal custody . . .
would be in the best interest of the child, the court shall consider
it a matter of primary, but not determinative, importance that the
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persons awarded joint legal custody have agreed to an award of
joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint
legal custody;
(2) whether the persons awarded joint legal custody are willing
and able to communicate and cooperate in advancing the child’s
welfare;
(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) whether the child has established a close and beneficial
relationship with both of the persons awarded joint legal custody;
(5) whether the persons awarded joint legal custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so;
(6) the nature of the physical and emotional environment in the
home of each of the persons awarded joint legal custody; and
(7) whether there is a pattern of domestic or family violence.
Ind. Code § 31-14-13-2.3.
[9] In G.G.B.W. v. S.W., 80 N.E.3d 264 (Ind. Ct. App. 2017), trans. denied, we
considered whether legal custody of a child should have been modified from
joint legal custody to sole legal custody in father when mother disregarded the
provisions of the paternity decree that required the child to be vaccinated based
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on her school’s requirements and failed to seek father’s input before making the
decision to submit a religious exemption form to the school in order to
circumvent the agreement. We concluded legal custody should be modified,
concluding that “[b]ased on [m]other’s actions, there is a substantial change in
[m]other’s ability to communicate and cooperate with [f]ather in advancing
[c]hild’s welfare.” Id. at 272.
[10] The facts of this case are similar. Father made a unilateral medical decision
without consulting Mother and in contravention of the parties’ agreement, the
trial court’s orders, and the definition and purpose of joint legal custody. See
Ind. Code § 31-9-2-67 (defining “joint legal custody” as “share[d] authority and
responsibility for the major decisions concerning the child’s upbringing,
including the child’s education, healthcare, and religious training”). The facts
as presented to us do not give us sufficient reason to second-guess the trial
court’s decision to modify legal custody in favor of Mother.
II. Attorney Fees
[11] Father also contends the trial court abused its discretion in ordering him to pay
Mother’s attorney fees. An abuse of discretion occurs when the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court or if the court has misinterpreted the law. G.G.B.W., 80 N.E.3d
at 272.
[12] Each of the petitions filed in the trial court came with a request for attorney
fees. See Appellant’s App., Vol. 2 at 24 (Father’s petition for change of
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custody); 31 (Mother’s petition to modify joint legal custody); 29 and 37
(Father’s petitions for citation against Mother); 35-36 and 40-41 (Mother’s
petitions for citation against Father). Pursuant to Indiana Code section 31-14-
18-2(a)(2), the court in a paternity action may order a party to pay a reasonable
amount for attorney fees incurred by the other party. In making such an award,
the trial court should consider the parties’ resources, their economic conditions,
their respective earning abilities, and other factors that bear on the
reasonableness of the award. In re Paternity of S.A.M., 85 N.E.3d 879, 890 (Ind.
Ct. App. 2017). The court may also consider any misconduct by one party that
causes the other party to directly incur fees. Id.
[13] In addition, civil contempt is “the willful disobedience of any lawfully entered
court order of which the offender has notice.” Winslow v. Fifer, 969 N.E.2d
1087, 1093 (Ind. Ct. App. 2012), trans. denied. Findings of contempt are within
the sound discretion of the trial court, and trial courts have inherent authority to
award attorney fees as a sanction for a finding of civil contempt. Id.
[14] It appears the trial court ordered Father to pay Mother’s attorney fees as a
sanction for disobeying the court’s order regarding healthcare decisions for K.B.
After the hearings in July and October, Father asked for an additional hearing
so he could re-call K.B.’s pediatrician regarding the medical issue. The trial
court granted Father’s request and set a hearing for this purpose. 3 Despite
3
The hearing was originally set for December but was ultimately not held until February. K.B.’s pediatrician
did not appear and testify at the February hearing.
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prolonging the proceedings by his own request, Father did not wait until after
that hearing to find out the court’s ruling—instead, Father defied the parties’
agreement and the court’s orders and took K.B. to a specialist without Mother’s
knowledge or consent after getting a referral under irregular circumstances. In
light of these facts, the trial court did not abuse its discretion under either
Indiana Code section 31-14-18-2 or its civil contempt powers by ordering Father
to pay Mother’s attorney fees.
Conclusion
[15] The trial court did not abuse its discretion in modifying the joint legal custody
arrangement the parties had for sole legal custody in Mother given the
substantial change in the parties’ ability to communicate and cooperate for
K.B.’s welfare. The trial court also did not abuse its discretion in ordering
Father to pay Mother’s attorney fees. Accordingly, the judgment of the trial
court is affirmed.
[16] Affirmed.
Najam, J., and Altice, J., concur.
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In re The Paternity of: K.B.: Kyle Burkholder v. Amanda Jensma (mem. dec.)
Combined Opinion