MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 14 2018, 8:38 am
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
Cynthia A. Marcus James D. Metzger
Marcus Law Firm, LLC The Law Office of James D.
Carmel, Indiana Metzger, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Vicoli, August 14, 2018
Appellant/Cross-Appellee-Petitioner, Court of Appeals Case No.
41A04-1711-DR-2624
v. Appeal from the
Johnson Superior Court
Ashley Mullica (Vicoli), The Honorable
Appellee/Cross-Appellant-Respondent. G. Thomas Gray, Senior Judge
Trial Court Cause No.
41D02-1405-DR-317
Kirsch, Judge.
[1] Christopher Vicoli (“Father”) appeals the trial court’s denial of his petition to
modify custody. Father raises the following restated issues for our review:
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 1 of 37
I. Whether the trial court abused its discretion when it
denied Father’s petition for modification of custody
because, Father alleges, the trial court based its
determination on several findings of fact and conclusions
thereon that were not supported by the evidence;
II. Whether the trial court abused its discretion when it
restricted Father’s parenting time by denying mid-week
visitation; and
III. Whether the trial court abused its discretion when it
denied Father’s request to modify child support and
ordered the original support order to remain in effect.
Ashley Mullica (Vicoli) (“Mother”) raises several cross-appeal issues, which we
restate as:
I. Whether Father timely filed his notice of appeal;
II. Whether the trial court abused its discretion when it
excluded evidence of alleged domestic violence by Father
against Mother; and
III. Whether the trial court abused its discretion when it
denied Mother’s request for attorney fees pursuant to the
Agreed Entry of June 26, 2014.
[2] We affirm in part, reverse in part, and remand.
Facts and Procedural History
[3] Mother and Father are the parents of eight-year old L.V. (“Child”). Mother
and Father lived in England together until their marriage was dissolved in
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 2 of 37
October 2012, at which time Mother moved back to the United States with
Child and her older sibling, K.S.1 Child was three years old at the time she
moved back to the United States with Mother. An Agreed Entry was entered
on June 26, 2014, which gave the parents joint legal custody of Child, granted
Mother primary physical custody of Child, and ordered Father to pay child
support in the amount of $500 per month. Appellant’s App. Vol. 2 at 16-20; Pet’r’s
Ex. 1. Father remained in England after the dissolution and operated a Subway
franchise until August 2016. During the time that he remained in England,
Father exercised regular contact with Child pursuant to the Agreed Entry,
including communicating through Skype and having visitations in England and
in the United States during summer and school holidays. While in England,
Father remarried.
[4] Child has lived with Mother since birth. Tr. Vol. 2 at 76. Child suffers from
Attention Deficit Hyperactivity Disorder (“ADHD”) and Major Depressive
Disorder. Id. at 85. K.S. suffers from Asperger’s Syndrome and Oppositional
Defiant Disorder. Id. at 77. Child and K.S. have spent their entire lives
together and are very close. Id. at 78, 80. K.S.’s condition results in meltdowns
as a response to change, and therefore, structure in her life is important. Id. at
77. Child also gets upset when her structure or routine is broken or disrupted.
Id. at 86.
1
Father is not the father of K.S., who was born prior to the marriage between Father and Mother.
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 3 of 37
[5] In May 2012, Mother met Joe Mullica (“Joe”), and they began living together
shortly thereafter. Mother and Joe subsequently had a child together, born in
March 2013 and another born in April 2017. In July 2014, while in Florida on
vacation, Joe became intoxicated and strangled Mother. Pet’r’s Ex. 5. Child
was not present at the time of the battery. Joe was arrested, but at Mother’s
request, the Florida criminal case against Joe was dismissed. Pet’r’s Exs. 5, 6.
The Indiana Department of Child Services (“DCS”) conducted an investigation
regarding Child as a result of the incident in Florida, and neglect of Child was
unsubstantiated. Pet’r’s Ex. 7. Father was notified of the Florida incident by
DCS and by Mother. In July 2015, Mother filed for a protective order against
Joe based on domestic violence incidents from 2012 through 2015. Pet’r’s Ex. 8.
Mother later requested that the ex parte protective order be dismissed because
she wanted to work on her relationship with Joe and have the two of them
attend counseling. Tr. Vol. 2 at 39; Pet’r’s Ex. 8. The protective order case was
dismissed, but the parties did not attend domestic violence or marital
counseling. Tr. Vol. 2 at 169.
[6] In April 2016, Mother attempted to commit suicide by ingesting large amounts
of her thyroid medication. Pet’r’s Ex. 10. Father, who was still in England at
the time, learned of this through DCS. On April 19, 2016, Mother filed for
another protective order against Joe alleging domestic violence and stalking
from 2012 through 2016. Pet’r’s Ex. 9. After an investigation that was initiated
as a result of Mother’s suicide attempt, DCS found neglect of Child to be
unsubstantiated because Child felt safe in Mother’s home. Pet’r’s Ex. 10.
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 4 of 37
During the investigation, Mother told DCS she was attending counseling. Id.
On May 23, 2015, Mother voluntarily dismissed the April 2016 ex parte
protective order. Pet’r’s Ex. 9. Mother and Joe got married the next day and
moved into a new 5,000 square foot home shortly thereafter as part of their plan
to remove negative influences from their life. Tr. Vol. 3 at 7-8. When Mother
vacated her apartment, it had sustained damage, including medium and large
sized holes in the walls and broken doors. Pet’r’s Exs. 15,16.
[7] On June 10, 2016, Father filed a petition for modification of the Agreed Entry,
which requested a modification of custody, child support, and parenting time.
A hearing was held on Father’s petition on June 26 and 27, 2017 and concluded
on July 18, 2017. At the hearing, Mother testified that a change in the amount
of contact between Child and K.S. would have a substantial and detrimental
effect on both children because both children because of the disruption to their
routine and structure. Tr. Vol. 2 at 80. Krista Anderson (“Anderson”), a
licensed marriage and family therapist, met with Child and familiarized herself
with Mother and Father and Child’s interactions with them. Id. at 175-176.
Anderson testified that if Child were to spend less time with her siblings, and
K.S. especially, it would have a substantial effect on the children. Id. at 196-
197.
[8] At the time of the hearing, Father had been exercising parenting time from
Wednesday to Monday morning every other week after since his move back to
the United States in 2016. Mother testified that Child was exhibiting anxiety
for some reason related to the transition. Id. at 201-202. Child had begun
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 5 of 37
wetting her bed the night before going to stay with Father, which she had not
done since Father came back for the first time to visit after she and Mother
returned to the United States from England. Id. at 81. Mother also stated that
Child had also become more aggressive, sarcastic, and emotional since seeing
Father on a more regular basis. Id. Child informed the trial court in an in-
camera interview that she did not like the mid-week transition and told the
custody evaluator that she wanted the schedule that “makes [her] more at [her]
mom’s house.” Tr. Vol. 4 at 38; Pet’r’s Ex. 11 at 9.
[9] As to the incidents of domestic violence between Mother and Joe, Mother
testified that Joe only “even laid hands on [her]” during the incident in Florida,
which Child did not witness. Tr. Vol. 2 at 109-10. Mother also stated that,
although there were allegations of verbal arguments between her and Joe, Child
witnessed very few of those. Id. at 110. Mother testified that, even though she
made the statements under the penalties of perjury, she misrepresented and
exaggerated the facts that she included in both of the petitions for protective
order that she filed. Id. at 33-38, 41-45. Joe testified at the hearing and
admitted that he has an anger problem, and at the time of the hearing, he had
begun seeing a therapist and had attended two sessions. Id. at 237; Tr. Vol. 3 at
209. Joe also previously engaged in eight and a half weeks of online anger
management after the incident in Florida. Tr. Vol. 2 at 241. He did not
complete the course because his computer broke, and he could not afford a new
one. Id. at 240. Joe told the court that he was not opposed to participating in
counseling, but that financial restraints had impaired his ability to gain
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 6 of 37
treatment in the past; however, he now had the means through insurance to
obtain treatment. Tr. Vol. 3 at 14, 17. Mother and Joe testified that they had
recognized negative influences in their lives and distanced themselves from
such influences and had moved into a larger home that allowed more space, so
they could go to different areas when conflict arises. Tr. Vol. 2 at 127-28; Tr.
Vol. 3 at 7-8.
[10] At the time of the hearing, Mother was in the training process to become a
school bus driver. She was making between $12 and $13 per hour and was only
allowed to train for two to four hours per day. In order to be a school bus
driver, Mother would have to obtain her CDL license and pass a training test.
She would then make $21 per hour and would be considered a substitute bus
driver and would work four to six hours a week depending on her route.
Mother would not be guaranteed to work a full week until she becomes a bus
driver and has a route of her own which could take up to a year. At the time of
the hearing, she was working part time in her brother’s cell phone store for
supplemental income, working approximately twenty hours per week and
making $8 per hour. Prior to having her fourth child in April 2017, Mother was
employed with the U.S. Postal Service, earning about $17 per hour, but after
going on maternity leave, she resigned to spend more time with her children.
[11] At the time of the hearing, Father was working part time as a tutor at both Ivy
Tech and Bender and Rocap. Father earned between $13-14 per hour at Ivy
Tech and $40 an hour at Bender and Rocap. He had applied for four or five
jobs in the year since he moved back to the United States. Father spent some
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 7 of 37
$80,000 from the sale of his Subway restaurant in England to purchase a rental
property. Father was hoping to pick up new clients with the tutoring agency.
He had only been there six months and after six months he would “move up the
pecking order” and gain more opportunities to get additional clients. Tr. Vol. 3
at 192. Father testified that he was looking for additional employment that
would pay more than what he was making at the time. Father also expected
that his vacant rental property would become occupied, which would provide
more income. Father remarried in 2016, and at the time of the hearing, had a
newborn baby with his second wife. Child had known Father’s new wife for
five years. Father and his wife purchased a home in the Castleton area, where
they resided.
[12] At the conclusion of the hearing, the trial court denied Father’s petition and
denied his request for modification of custody and ordered that Father be
entitled to exercise parenting time per the Indiana Parenting Time Guidelines
(“Parenting Time Guidelines”), but ordered he was not entitled to mid-week
parenting time, finding that it was inappropriate in the present case and not in
the best interest of Child. Appellant’s App. Vol. 2 at 10-14. The trial court also
ordered that Father’s child support obligation should remain in the amount of
$500 per month as originally ordered in the Agreed Entry because the parties
incomes were in a “state of flux” at the time of the hearing, and an accurate
child support calculation could not be made at that time. Id. at 14. Father now
appeals. Additional facts will be added as necessary.
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 8 of 37
Discussion and Decision
I. Timeliness of Notice of Appeal
[13] Initially, we address Mother’s contention that Father failed to timely file his
notice of appeal. Because the determination of this issue could be dispositive,
we will resolve it first. Mother argues that Father’s notice of appeal was not
filed in a timely manner because it was not filed within thirty days of the trial
court’s oral pronouncement of its denial of Father’s petition for modification of
custody.
[14] Assuming without deciding that Father failed to timely file his notice of appeal,
we proceed to determine the case on its merits. Although under Indiana
Appellate Rule 9(A)(5) the untimely filing of a notice of appeal forfeits the right
to appeal, Indiana courts have concluded that the question is whether there are
extraordinarily compelling reasons why the appeal should be allowed. In re
Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014); Robertson v. Robertson, 60
N.E.3d 1085, 1090 (Ind. Ct. App. 2016). First, the Appellate Rules themselves
provide a mechanism allowing the an otherwise forfeited appeal to be
resurrected. See Ind. Appellate Rule 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”). In re O.R., 16 N.E.3d at 972. Second, 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.; Robertson, 60 N.E.3d at 1090. Based on this reasoning, we conclude that
Father’s appeal deserves a determination on the merits.
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 9 of 37
II. Custody Determination
[15] Father first argues that the trial court abused its discretion when it denied his
petition to modify custody, which requested that custody be changed from
Mother to him. Indiana appellate courts grant latitude and deference to our
trial courts in family law matters. Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind.
Ct. App. 2012). Modifications of child custody are reviewed for an abuse of
discretion. Id. We do not reweigh the evidence or judge the credibility of the
witnesses. Id. Instead, we view only the evidence favorable to the trial court’s
judgment and the reasonable inferences that may be drawn from this evidence.
Id.
[16] The trial court here entered findings of fact and conclusions thereon when it
denied modification. Pursuant to Indiana Trial Rule 52(A), we do not “set
aside the findings or judgment unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of witnesses.”
Factual findings are only clearly erroneous where there is no support for them
in the record, either directly or by inference; a judgment is only clearly
erroneous when it applies an improper legal standard to proper facts. Johnson v.
Johnson, 999 N.E.2d 56, 59 (Ind. 2013). In either case, we must be left with the
firm conviction that a mistake has been made. Id.
[17] We reiterate and emphasize that “[j]udgments in custody matters typically turn
on essentially factual determinations and will be set aside only when they are
clearly erroneous.” Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). The
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 10 of 37
appellate court will not substitute its own judgment if any evidence or
legitimate inferences support the trial court’s judgment. Id. at 1257-58. “The
concern for finality in custody matters reinforces this doctrine.” Id.
[18] Father contends that a number of the trial court’s findings were not supported
by the evidence. Specifically, he takes issue with Findings 4, 6, 7, 8, 9, 10, 12,
14, 17,18, 19, 20, and 21. Father claims that, because these findings were not
supported by the evidence and because the findings, therefore, do not support
the judgment, the trial court’s judgment leaving Child in Mother’s custody was
clearly erroneous.
[19] Father alleges that Finding 4, which stated “[Mother] has been in the child’s life
consistently since the child’s birth and has had physical custody of the child
since the divorce,” Appellant’s App. Vol. 2 at 10, was not supported by the
evidence. At the hearing, Mother testified that she had lived with Child since
birth and had been the custodial parent since her divorce with Father. Tr. Vol. 2
at 76. Therefore, evidence was presented to support Finding 4. Father’s
argument that “This finding is contradicted by the import of the totality of the
other findings made (or ignored) by the trial court” appears to be a request that
we reweigh the evidence, which we cannot do on appeal. See Miller, 965
N.E.2d at 108.
[20] Finding 6 stated,
There have been several substantial changes in circumstances
including both parents remarrying, the addition of new siblings,
Petitioner returning to the United States in 2016 after living in
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 11 of 37
England since the divorce in 2012 while child lived in the United
States with Respondent and the child moving into a different
home with Respondent.
Appellant’s App. Vol. 2 at 11. Father contends that this finding ignored the crux
of the case, which was that family violence existed in Mother’s home and that
family violence was a substantial change in circumstances. All of the
information in the finding was supported by evidence presented at the hearing,
both Mother and Father had remarried and had additional children with their
new spouses, Father had returned to the United States, and Child had moved
into a new home with Mother and her new husband. Tr. Vol. 2 at 18-19, 108,
126; Tr. Vol. 3 at 55, 77, 90-91. Although the trial court did not list the family
violence that had occurred in Mother’s home in this finding, it did consider the
evidence of domestic violence presented at the hearing when it found that there
were three episodes of domestic violence between Mother and Joe and that Joe
had an anger problem. Tr. Vol. 4 at 35-36; Appellant’s App. Vol. 2 at 11. The trial
court further found that Joe’s anger problem was “a troubling fact” to the trial
court. Tr. Vol. 4 at 36. We, therefore, conclude that the evidence supported
Finding 6.
[21] Father asserts that Finding 7, which stated that, “There have been three
instances of domestic violence between [Mother] and [Joe],” which occurred in
“July of [2014], July of [2015], and April of [2016],” was not supported by the
evidence. Appellant’s App. Vol. 2 at 11; Tr. Vol. 4 at 35. Father contends that this
is because Mother’s two petitions for protective order contained multiple
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 12 of 37
instances of alleged domestic violence, and at the hearing, Mother testified that
the allegations in those petitions were exaggerated and misrepresented. Tr. Vol.
2 at 33-38, 41-45. Father’s argument is just a request for this court to reweigh
the evidence and assess Mother’s credibility. At the hearing, Mother testified
that Joe did in fact choke her during the incident in Florida in July 2014 that
was reported to the police. Id. at 25-26. She also admitted that Joe threatened
to kill her parents on July 23, 2015 and that he hit her in the arm. Id. at 37, 41-
42. As to the other incidents that were contained in the petitions for protective
order, mother testified that they were exaggerated or misrepresented in order to
obtain the protective order, and the trial court either chose to believe Mother’s
testimony on this account or believe that what was reported did not constitute
domestic violence. There was evidence that Joe caused property damage to
their old apartment, but property damage does not, alone, constitute domestic
violence.2 Id. at 32, 43-45. Mother also testified that Joe held her down one
time, but no further details of the incident were given; testimony was also given
that Joe “would say mean things to [Mother],” which also does not alone fit the
definition of domestic violence. Id. at 35, 42. Evidence was presented that
supported Finding 7.
[22] Finding 8 stated, “Erica Oaks of DCS gave testimony that while violence did
occur, the child did not see the violence, the child felt safe in [Mother]’s home,
2
Indiana Code section 31-9-2-42 defines domestic or family violence in pertinent part as: “(1) attempting to
cause, threatening to cause, or causing physical harm to another family or household member without legal
justification; (2) placing a family or household member in fear of physical harm without legal justification.”
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 13 of 37
and the DCS investigation indicated the allegations that the child was a child in
need of services were unsubstantiated.” Appellant’s App. Vol. 2 at 11. Father
argues that this finding is clearly erroneous because the trial court used the
wrong legal standard, asserting that the standard of proof for CHINS cases does
not apply in a custody modification case. Appellant’s Br. at 22-23. However,
this argument seems misplaced as the finding does not apply the CHINS
standard to the present case, but merely stated testimony given by Erica Oakes
(“FCM Oakes”), who conducted an assessment of alleged child abuse or
neglect for DCS in April 2016. FCM Oakes testified that, in her investigation,
she learned that Joe hit Mother in the arm, but that it did not take place in front
of the children. Tr. Vol. 2 at 53. FCM Oakes further stated that she spoke with
Child, who told FCM Oakes that she felt safe in Mother’s home, and FCM
Oakes found that the allegations that Child was a CHINS to be
unsubstantiated. Id. at 56, 58. Therefore, Finding 8 was supported by the
evidence.
[23] Finding 9 stated:
The Court found witness Krista Anderson, a family and marriage
therapist, to be quite astute and placed great weight upon her
testimony. Significantly, Anderson opined that while the child
might be at risk for being a victim of domestic violence that she
had not been a victim of violence. Ms. Anderson also opined
that less contact between the child and her siblings in this specific
case will have a negative and substantial effect on the child.
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 14 of 37
Appellant’s App. Vol. 2 at 11. Father takes issue with the portion of the finding
where the trial court stated that it found “Anderson ‘to be quite astute and
placed great weight upon her testimony,’” claiming that this finding was clearly
erroneous because the finding did not take into account other testimony by
Anderson regarding hypothetical long lasting effects of exposure to domestic
violence. Appellant’s Br. at 23. The record shows that Anderson did testify that,
while Child might be at risk for being a victim of domestic violence, she had not
been a victim. Tr. Vol. 2 at 184, 191-92. Further, the record reflects that there
no evidence was presented that Child has been a victim of domestic violence or
has been exposed to it. Mother testified that Child never saw any physical
violence, witnessed few arguments, and she and Joe took measures to keep it
away from the children even when in the apartment. Id. at 110. Child stated to
FCM Oakes “that her mom and [Joe] do not argue often” and told the custody
evaluator, “Mom and Joe might argue, but it is not anything bad.” Ex. 10 at 3;
Ex. 11 at 9. Much of Father’s argument focuses on statistical evidence and
generalized information about whether a domestic batterer will also victimize a
child, which the trial court had an opportunity to hear, as well as the testimony
of the witnesses regarding the parties and the present situation. Father’s
contention is just a request to reweigh the evidence. Finding 9 was supported
by the evidence.
[24] Father next contends that Finding 10, which stated, “That Joe Mullica, current
husband of [Mother] does have an anger problem, but is addressing it,” was not
supported by the evidence. Specifically, Father argues that the part of the
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 15 of 37
finding that stated that Joe was addressing his anger problem was not supported
by the record because Joe had not yet completed counseling at the time of the
hearing. Joe testified that he is not opposed to participating in treatment but
had been hindered due to financial reasons. Tr. Vol. 3 at 13-14. At the time of
the hearing, Joe had been seeing a therapist at the same place where Mother
and Child attend, had been to two sessions with three more scheduled, was
attending once a week, and was working on issues of things that happened to
him when he was younger. Id. at 209. Both Mother and Joe testified that they
had been learning things to help them cope with stress and how to deal with
situations and talk with each other. Tr. Vol. 2 at 111; Tr. Vol. 3 at 7-9. Evidence
was presented that supported the trial court’s Finding 10.
[25] Father asserts that Finding 12, which stated, “[Mother] is making appropriate
steps with her employment that are suited to address the best interests of the
child,” was not supported by the evidence presented. Appellant’s App. Vol. 2 at
11. Father argues that the finding was not supported because the evidence
showed that Mother had quit her employment with the postal service, where
she was making around $17 per hour, and was only working part time at her
brother’s store where she was making $8 per hour at the time of the hearing.
The evidence at the hearing showed that Mother had recently quit her job
working for the postal service and had begun training to become a school bus
driver, which would allow her to spend more time with her children. Tr. Vol. 2
at 112-13. Mother testified that, after her training, her pay as a bus driver
would be higher per hour than her previous position, but she would work fewer
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 16 of 37
hours which would allow her to spend more time with her children while
making a similar amount of money. Id. at 112. Mother would not be working
during the summers and would be able to spend that time with her children,
and her hours at work would be more predictable than they were at the postal
service. Id. at 15-16, 112-13. Mother stated that her job with the postal service
was extremely stressful, which contributed to her suicide attempt, and the trial
court could infer that changing her employment would alleviate that stress and
help make her a better parent. Id. at 118-19. Evidence was presented to
support Finding 12.
[26] Finding 14 stated, “[Mother] is bettering herself particularly by moving into a
larger home, learning to create space between her and Joe when conflict arises,
and by having removed those who create negative influences from her family’s
life.” Appellant’s App. Vol. 2 at 12. Father claims that the record did not contain
evidence to support this finding because no evidence suggested that Mother was
bettering herself by doing the things listed in the finding and that making the
changes listed in the finding will not cure a domestic abuser, citing to testimony
by Anderson. However, Father’s contention does not properly characterize
Anderson’s full testimony. Although she did state that moving into a larger
house would not cure a domestic batterer, Anderson did testify that removing
negative influences would be a necessary step to break the cycle of violence. Tr.
Vol. 2 at 190. Anderson further stated that she teaches children and victims of
violence to “take their own space” wherever they happen to be as a mechanism
to remove themselves from a violent situation. Id. at 190-91. Further, although
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 17 of 37
Father takes issue with the fact that the listed things in the finding will not cure
a domestic batterer, the trial court only stated in the finding that Mother was
bettering herself by doing these things, not curing Joe. Sufficient evidence was
presented to support Finding 14.
[27] Finding 17 stated, “Exhibit 36 shows the antagonistic nature of [Father]’s
attitude towards [Mother] and her family.” Appellant’s App. Vol. 2 at 12. Father
asserts that this finding is clearly erroneous and not relevant because the trial
court should not have made the finding based on a single short series of text
messages. Exhibit 36 was a series of text messages between Father and
Mother’s father (“Grandfather”), in which Grandfather asked that Father stop
harassing Mother though text messages, and Father responded that “if [Mother]
can’t defend herself then maybe she isn’t adult enough to raise a child” and
continued to explain that he only informed Mother about Child’s health and
that Child should have had a coat. Pet’r’s Ex. 36. Father then stated that
Mother was “being dramatic,” and Grandfather again asked Father to stop
harassing Mother and that Father should have been responsible for Child
having a coat when it was Father’s visitation time with Child. Id. Mother also
recounted a time when she and Father had a conversation about him not
returning clothing sent with Child on visitations with Father, to which he
responded that, because he paid child support, the clothing was his. Tr. Vol. 2
at 88. Mother also recounted that during a Christmas break, the parties
attempted to negotiate parenting time for the holidays, and Father just ended up
keeping Child for the time he wanted anyway. Id. at 131-32. We, therefore,
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 18 of 37
conclude that the trial court’s finding was supported by the evidence presented.
A large portion of Father’s argument alleges that the trial court focused on
Father’s antagonistic nature but ignored evidence of Joe’s domestic violence.
This allegation is a request to reweigh the evidence and minimize Father’s
antagonistic interactions with Mother and other members of her family, which
reflect on Father’s ability to cooperate with Mother and with visitation
schedules.
[28] Father next asserts that Finding 18, which stated, “The Court finds it telling
that half of the clothes that [Father] had for the child, came from the [Mother],”
is not supported by the evidence. Appellant’s App. Vol. 2 at 12. He claims that
both parents have an obligation to provide for Child, and the logical inference
from the finding is that Father contributed half of Child’s clothing. Mother
testified that Father did not return the clothing she sent with Child for
visitations and told Mother the clothes were his because he paid child support.
Tr. Vol. 2 at 87-88. The Parenting Time Guidelines states that, “[t]he the
custodial parent shall send an appropriate and adequate supply of clean
clothing with the child and the non-custodial parent shall return such clothing
in a clean condition.” Ind. Parenting Time Guideline I(B)(3). We conclude
that Finding 18 was supported by the record.
[29] Father maintains that Finding 19, which provided, “The child exhibits anxiety
before going to [Father]’s residence for some reason,” was not supported by the
record. Appellant’s App. Vol. 2 at 12. He asserts that, because Anderson testified
that she was unable to determine the source of Child’s anxiety, no evidence
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 19 of 37
supported a causal link that the anxiety was caused by Father. Anderson did
testify that Child experienced anxiety and bedwetting, but she was not sure of
the reason behind this, and she opined that the anxiety was due to transition
and that it could be “with father, but [she] couldn’t speak to that.” Tr. Vol. 2 at
201-02. Mother also testified that Child had begun to wet her bed before she
went to Father’s home. Id. at 81. This evidence was sufficient to support an
inference by the trial court that Child was experiencing anxiety prior to going to
Father’s home, and therefore, Finding 19 was supported by the record.
[30] Father contends that Finding 20, which stated, “[Father] did not want mid-
week visits for [Mother] if he were granted custody and [Mother] given
parenting time,” was not supported by the evidence. Appellant’s App. Vol. 2 at
12. Father claims that the finding is a misinterpretation of his “testimony,
reasoning, and logic” and that the finding did not mention the best interest of
Child. Appellant’s Br. at 29. During the hearing, when asked what his proposal
for Mother’s visitation would be if he was given custody, Father stated “[t]hat
she would have [Child] every other weekend plus, . . . liberal visitation for
holidays and birthdays and vacations.” Tr. Vol. 3 at 195. When questioned at
another time what he thought would be appropriate for visitation, Father
testified “I think alternating weekends work well” and “if distance is a concern
for [Mother], could you extend the weekends a bit, rather than having the
midweek sort of visits.” Id. at 76. Evidence was presented to support Finding
20.
[31] Finding 21 stated,
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 20 of 37
The Court finds of paramount significance that while [Father]
claims he is concerned about the child’s safety while in
[Mother]’s care, such being the crux of his Petition, that [Father]
never once stated or asked of the Court that [Mother]’s husband,
Joe Mullica, be restricted either from the home entirely should
[Mother] remain the custodial parent or during parenting time
should the Court grant physical custody to [Father]. This
indicates to the Court that [Father] is not as truly concerned with
danger in [Mother]’s home while Joe Mullica is there as [Father]
claims to be.
Appellant’s App. Vol. 2 at 12. Father contends that this is not a finding of fact,
but a conclusion by the trial court and that, during his testimony, he articulated
his fear for child’s safety. While we agree with Father that Finding 21
contained conclusory language, the factual statements are supported by the
evidence. Nowhere in the record did Father request that Joe somehow be
restricted from the home if Mother retained custody or during Mother’s
visitations should Father receive custody. Further, contrary to Father’s
assertion, the trial court did find that Father claimed he was concerned for
Child’s safety while in Mother’s care, but questioned the strength of his
concern. We do not conclude that Finding 21 was clearly erroneous.
[32] Father next argues that, based on the record, it is clear that the evidence did not
support the trial court’s findings, and the findings are clearly erroneous and do
not support the trial court’s judgment to deny Father’s petition for modification
of custody of Child. As explained above, the evidence presented supported the
trial court’s findings, and we conclude that the trial court’s judgment was
supported by the findings and the record. It is not necessary that each and
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 21 of 37
every finding be correct, and even if one or more findings are clearly erroneous,
we may affirm the judgment if it is supported by other findings or is otherwise
supported by the record. Clary-Ghosh v Ghosh, 26 N.E.3d 986, 990 (Ind. Ct.
App. 2015), trans. denied. When reviewing the accuracy of findings, we first
consider whether the evidence supports them and then consider whether the
findings support the judgment. Id.
[33] Here, the findings showed that Child, who was eight years old at the time of the
hearing, had lived consistently with Mother for Child’s entire life and that
Mother had physical custody of Child since the divorce in 2012. Although
Child was the only child of the marriage between Mother and Father, Mother
had other children including an older child, with whom Child had a close bond.
Testimony was given by a family therapist, Anderson, that if Child were to
spend less time with her siblings, especially her older sister, it would have a
substantial effect on Child and all of the children. Tr. Vol. 2 at 196-97. While
less contact between any child siblings who have grown up together could be a
substantial change, the specific children in this case present a much stronger
case that less contact between them would be harmful. Child suffers from
ADHD and Major Depressive Disorder and has been in counseling with Adult
and Child services since kindergarten, which Mother felt was important to
continue because the counseling teaches Child important everyday skills such as
grooming and homework and skills to help in her relationship with her older
sister, who suffers from Asperger’s Syndrome. Id. at 82-83, 85. Anderson also
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 22 of 37
noted that Child has anxiety before going to Father’s house, but was not sure
why this was occurring. Id. at 201-02.
[34] Although the trial court acknowledged that there had been incidents of
domestic violence between Mother and Joe, the evidence showed that Child
had not been a victim of domestic violence and had not been present when the
incidents between Mother and Joe had occurred. Id. at 110, 191-92. FCM
Oakes testified that she spoke with Child, who told FCM Oakes that she felt
safe in Mother’s home, and FCM Oakes found that the allegations that Child
was a CHINS were unsubstantiated. Id. at 56, 58. There was also testimony
that Mother and Joe were seeking treatment and learning ways to help them
cope with stress and to deal with situations and talk with each other. Id. at 111;
Tr. Vol. 3 at 7-9. Mother also testified that she had recently quit her stressful
employment with the postal service and was training to drive a school bus,
which would allow her to spend more time with her children. Tr. Vol. 2 at 112-
13.
[35] The trial court found it compelling that, although Father stated he was
concerned with Child living in Mother’s home due to Joe’s anger and domestic
violence issues, Father did not request any restriction of Joe being around when
Child visited if custody was modified in favor of Father. The trial court
interpreted this as demonstrating that Father’s actual reasoning for custody
modification was that he just wanted to have custody of Child and not that a
change of circumstances had occurred. Tr. Vol. 4 at 37. We find this to be a
reasonable inference and within the trial court’s discretion. The trial court’s
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 23 of 37
findings supported its judgment, and the trial did not abuse its discretion in
denying Father’s petition for custody modification. Father’s argument that
Mother’s ability to protect is compromised is a rehashing of his prior assertions
and is a request for this court to reweigh the evidence, which we cannot do on
appeal. Miller, 965 N.E.2d at 108.
III. Parenting Time
[36] Father next argues that the trial court abused its discretion when it restricted his
parenting time by not allowing mid-week visitations with Child. In matters of
child custody and visitation, foremost consideration must be given to the best
interests of the child. Richardson v. Richardson, 34 N.E.3d 696, 701 (Ind. Ct.
App. 2015) (citing Lindquist v. Lindquist, 999 N.E.2d 907, 911 (Ind. Ct. App.
2013)). We will generally reverse child visitation decisions only upon a
showing of a manifest abuse of discretion. Id. We do not reweigh the evidence
or reexamine the credibility of the witnesses. Id. Instead, we view the record in
the light most favorable to the trial court’s decision to determine whether the
evidence and reasonable inferences therefrom support the trial court’s ruling.
Id.
[37] Father takes issue with several of the trial court’s findings, contending that they
are not support by the evidence. Factual findings are only clearly erroneous
where there is no support for them in the record, either directly or by inference;
a judgment is only clearly erroneous when it applies an improper legal standard
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 24 of 37
to proper facts. Johnson, 999 N.E.2d at 59. In either case, we must be left with
the firm conviction that a mistake has been made. Id.
[38] Under Indiana Code section 31-17-4-2, a trial court may modify an order
granting or denying parenting time whenever such modification would be in the
best interests of the child, but a trial court shall not restrict a parent’s parenting
time unless it finds that such parenting time might endanger the child’s physical
health or significantly impair the child’s emotional development. Our Supreme
Court has held that:
[e]xtraordinary circumstances must exist to deny parenting time
to a parent, which necessarily denies the same to the child. If the
trial court finds such extraordinary circumstances do exist, then
the trial court shall make specific findings regarding its
conclusion that parenting time would endanger the child’s
physical health or significantly impair the child’s emotional
development.
Perkinson v. Perkinson, 989 N.E.2d 758, 765 (Ind. 2013). Therefore, even though
Indiana Code section 31-17-4-2 uses the word “might,” this court has
previously interpreted the language to mean that a court may not restrict
parenting time unless that parenting time “would” endanger the child’s physical
health or emotional development. Hatmaker v. Hatmaker, 998 N.E.2d 758, 761
(Ind. Ct. App. 2013), trans. denied.
[39] Here, the trial court made the following determinations regarding parenting
time:
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 25 of 37
26. [Father] shall be entitled to exercise parenting time per the
Indiana Parenting Time Guidelines.
27. Guidelines shall mean every other weekend, holidays, and
special days as delineated in the guidelines.
28. [Father] shall not be entitled to the mid-week parenting time
contemplated by the Indiana Parenting Time Guidelines. The
Court has never been in favor of transporting children back and
forth mid-week. The child in this case does not like the mid-
week transportation that has heretofore occurred under the most
recent custody agreement and [Father] testified that if given
custody he would not want [Mother] to have mid-week parenting
time. Given these circumstances, the Court therefore believes
that the mid-week visit called for by the Indiana Parenting Time
Guidelines is inappropriate in this case and not in the best
interest of the child.
Appellant’s App. Vol. 2 at 13.
[40] It is apparent from the trial court’s order that it restricted Father’s parenting
time with Child from what is set out in the Parenting Time Guidelines. In
section II(D)(1)(b) of the Parenting Time Guidelines, it states that regular
parenting time for a non-custodial parent of a child over the age of three
includes, “One (1) evening per week, preferably in mid-week, for a period of up
to four hours but the child shall be returned no later than 9:00 p.m.” In the
introduction to section II of the Parenting Time Guidelines, it states that the
provisions contained in that section “represent the minimum recommended
time a parent should have to maintain frequent, meaningful, and continuing
contact with a child.” Ind. Parenting Time Guidelines II(A). Therefore, by
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 26 of 37
ordering that Father was not entitled to mid-week parenting time with Child,
the trial court restricted his parenting time, which is not permitted “unless [the
trial court] finds that such parenting time might endanger the child’s physical
health or significantly impair the child’s emotional development.” Ind. Code §
31-17-4-2.
[41] We do not find it apparent from the face of the trial court’s order that it found
that parenting time with Father would endanger Child’s physical health or
significantly impair Child’s emotional development. The trial court found that
Child exhibited anxiety before going to Father’s house, but no reasoning for this
anxiety was given. Appellant’s App. Vol. 2 at 12. In its conclusion determining
that Father shall not be entitled to mid-week parenting time, the trial court
found that Child did not like mid-week visitation, that Father would not have
given Mother mid-week visitation had he been granted custody, and that the
trial court was not in favor of transporting children back and forth mid-week as
reasons justifying its determination. Id. at 13. This reasoning is not sufficient
to show that mid-week parenting time with Father would endanger Child’s
physical health or significantly impair her emotional development. We,
therefore, reverse the trial court’s parenting time determination and remand to
the trial court to determine whether mid-week parenting time with Father
endangers Child’s physical health or significantly impairs Child’s emotional
development. If not, we direct the trial court to restore Father’s parenting time
to that which is recommended as the minimum time, including mid-week
visitation or equivalent time, under the Parenting Time Guidelines.
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 27 of 37
IV. Child Support
[42] Father asserts that the trial court abused its discretion when it failed to
recalculate his child support obligation. In reviewing the trial court’s decision
regarding the modification of child support, we reverse only for an abuse of
discretion. Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 505 (Ind. Ct. App. 2011).
An abuse of discretion occurs when the decision is clearly against the logic and
effect of the facts and circumstances before the court, including any reasonable
inferences therefrom. Id. “Whether the standard of review is phrased as ‘abuse
of discretion’ or ‘clear error,’ the importance of first-person observation and
preventing disruption to the family setting justifies deference to the trial court.”
Id. (quoting MacLafferty v. MacLafferty, 829 N.E.2d 938, 940-41 (Ind. 2005)).
[43] Father argues that the trial court “abdicated its role as a fact finder, failed in his
responsibilities, and abused his discretion” in it is decision to keep Father’s
child support obligation at the same amount as originally ordered in the Agreed
Entry. Appellant’s Br. at 40. Father contends that there was substantial evidence
presented regarding the parties’ incomes that would have enabled the trial court
to make a determination regarding child support. He maintains that the trial
court’s failure to make a finding as to the parties’ incomes for child support
purposes was an abuse of discretion and not supported by the facts and
circumstances presented to the trial court.
[44] In its order, the trial court determined that “both parties incomes are in a state
of flux such that an accurate child support calculation cannot be made at this
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 28 of 37
time.” Appellant’s App. Vol. 2 at 14. The trial court then ordered that Father’s
child support obligation of $500 per month originally ordered in the Agreed
Entry should remain in effect. Id. Although Father characterizes the trial order
as abdicating its role as a fact finder, the trial court effectively denied Father’s
request to modify the existing child support order. Under Indiana Code section
31-16-8-1(b), a child support order may only be modified if: (1) there are
changed circumstances so substantial and continuing as to make the terms
unreasonable; or (2) a party has been ordered to pay an amount that differs by
more than twenty percent from the amount that would be ordered by applying
the child support guidelines. In making its determination that the parties’
incomes were not certain enough to make an accurate child support
determination, the trial court essentially found that it could not be determined if
a substantial enough change had occurred to justify a modification in Father’s
child support obligation.
[45] This determination by the trial court was supported by the evidence. Mother’s
income was in a state of flux as of the time of the hearing. She had previously
worked for the postal service and had chosen to resign from the postal service
rather than return after her maternity leave. Mother testified that she decided to
leave her employment with the postal service in order to pursue employment as
a bus driver, which would offer a work schedule that allowed for more time
with her children. Tr. Vol. 2 at 10-11, 112-113. At the time of the hearing,
Mother was in training to get her CDL license and was earning between $12
and $13 per hour while training. She was only allowed to train for two to four
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 29 of 37
hours per day, but when she obtained her CDL license and passed the training
test, she would then make $21 an hour and would be considered a substitute
bus driver, working four to six hours a week depending on her route. Mother
would not be guaranteed to work a full week until she becomes a bus driver
with a route of her own, which would take almost a year. At the time of the
hearing, she was working part time in her brother’s cell phone store for
supplemental income. Mother worked approximately twenty hours per week,
making $8 per hour. She also stated that she would be eligible for a
commission check from her brother’s store after about two months of
employment. Tr. Vol. 3 at 228. There were many facets of Mother’s income
that were uncertain at the time of the hearing that made it difficult to ascertain
an income that would be accurate for any length of time.
[46] Father’s income was also in a state of flux at the time of the hearing. Father
was working part time as a tutor at both Ivy Tech and Bender and Rocap and
earned $13-14 per hour at Ivy Tech and $40 an hour at Bender and Rocap.
Father testified that he hoped to obtain new clients with the tutoring agency
because he had been there six months, and after six months, he will “move up
the pecking order” where there are opportunities to get additional clients. Tr.
Vol. 3 at 192. Father testified that he was looking for additional employment
that would pay more than he was presently making. Id. at 190. He also
expected that a vacant rental property that he owned will become occupied,
which would provide him with more income. Id. at 147. Father stated that he
had applied for four or five jobs in the year since he moved back to the United
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 30 of 37
States. He had previously worked as a franchisee of a Subway restaurant in
England. At the conclusion of the hearing, the trial court raised its concerns
that Father was underemployed and had only applied for four or five positions.
Tr. Vol. 4 at 39. The many unknowns regarding Father’s income at the time of
the hearing that made it hard to determine an accurate income. We conclude
that the trial court did not abuse its discretion when it found that the parties’
incomes were uncertain, and it could not determine an accurate child support
calculation at that time, thereby ordering the existing child support obligation to
remain in effect.
Cross-Appeal Issues
V. Admission of Evidence
[47] Mother argues that the trial court abused its discretion when it excluded
evidence of events that occurred prior to the June 26, 2014 Agreed Entry. The
trial court has broad discretion to rule on the admissibility of evidence. Curry v.
State, 90 N.E.3d 677, 683 (Ind. Ct. App. 2017), trans. denied. We will only
reverse a trial court’s decision on the admissibility of evidence upon a showing
of an abuse of that discretion. Cannon v. State, 99 N.E.3d 274, 278 (Ind. Ct.
App. 2018). An abuse of discretion may occur if 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. Id. When evidence is
erroneously excluded, reversal is only required if the error relates to a material
matter or substantially affects the rights of the parties. Hill v. State, 51 N.E.3d
446, 450 (Ind. Ct. App. 2016). “In determining whether an error is harmless,
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 31 of 37
we ‘must assess the probable impact of that evidence upon the jury.’” Id.
(quoting Swingley v. State, 739 N.E.2d 132, 134 (Ind. 2000)). Where the
wrongfully excluded testimony is merely cumulative of other evidence
presented, its exclusion is harmless error. Id. (citing Sylvester v. State, 698
N.E.2d 1126, 1130 (Ind. 1998)).
[48] Mother asserts that the trial court abused its discretion when declined to admit
evidence of events that occurred prior to the date of the Agreed Entry on June
26, 2014 that originally determined custody and parenting of Child. Mother
contends that it was an abuse of discretion for the trial court to exclude the
evidence because such evidence demonstrated a pattern of domestic violence by
Father during the marriage that was relevant to the determination of custody
and the best interest of Child. Mother maintains that this evidence was
admissible even though it concerned events that occurred prior to the Agreed
Entry because no custody proceeding occurred before the Agreed Entry
between the parties, and, therefore, there was no opportunity for the parties to
present evidence relevant to custody to a trial court.
[49] Under Indiana Code section 31-17-2-21(c), “[t]he court shall not hear evidence
on a matter occurring before the last custody proceeding between the parties
unless the matter relates to a change in the factors relating to the best interests
of the child.” In Dwyer v. Wynkoop, 684 N.E.2d 245 (Ind. Ct. App. 1997), trans.
denied, this court held that this section does not apply to situations where
custody was originally determined solely by stipulation of the parties because
“when parents stipulate as to who will have custody of the child and the trial
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 32 of 37
court grants a summary dissolution on the basis of such agreement without
hearing evidence on the issue of custody, there is no ‘custody proceeding’ that
would activate this section of the statute.” Id. at 249.
[50] In the present case, Mother offered evidence of events that had occurred prior
to the June 26, 2014 Agreed Entry, and Father objected based upon Indiana
Code section 31-17-2-21(c). Mother responded that the statute permitted the
trial court to hear evidence prior to the last custody proceeding if it addressed
the best interest of the child and argued that there had not been any previous
“custody proceedings” because the trial court had not heard any evidence
concerning custody and parenting time before this hearing. Tr. Vol. 2 at 121-22.
The trial court sustained Father’s objection and ruled that any evidence prior to
June 26, 2014 would be inadmissible. Id. at 123. During the second day of the
hearing, Mother presented the trial court with Dwyer, asked the trial court to
reconsider its ruling from the previous day, and informed the trial court that she
intended to introduce evidence of domestic violence by Father dating back prior
to June 26, 2014. Id. at 214-16. The trial court ruled that its prior ruling would
stand. Id. at 222. Mother moved for a continuance, which the trial court
denied, and at the end of the second day of the hearing, Mother again made the
request that the trial court reconsider its ruling and permit evidence previous to
the June 24, 2016 date at the next hearing date, which the trial court again
denied. Id. at 223-24; Tr. Vol. 3 at 148-51.
[51] Assuming without deciding that the trial court abused its discretion in
excluding Mother’s proffered evidence, we conclude that it was harmless error.
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 33 of 37
When evidence is erroneously excluded, reversal is only required if the error
relates to a material matter or substantially affects the rights of the parties. Hill,
51 N.E.3d at 450. Mother has not shown how the excluded evidence related to
a material matter or substantially affected her rights. The evidence she was
attempting to have admitted at the hearing occurred during her marriage to
Father, which was dissolved in October 2012. Therefore, any evidence she
wished to present to the trial court occurred approximately five years prior to
the custody hearing. Although the proffered evidence may have shown a
pattern of domestic violence by Father prior to October 2012, Mother has not
established that the pattern is continuing or how it affects a custody
determination in 2017. Additionally, because Father’s petition to modify
custody was denied, and Mother was awarded physical custody of Child, she
has not established that the trial court’s exclusion of her proffered evidence has
substantially affected her rights. We, therefore, conclude that even if the trial
court abused its discretion in excluding Mother’s proffered evidence, it was
harmless error.
VI. Attorney Fees
[52] We review a decision to award attorney fees and the amount of any award for
an abuse of discretion. Montgomery v. Montgomery, 59 N.E.3d 343, 354 (Ind. Ct.
App. 2016), trans. denied. An abuse of discretion occurs where the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court. Allen v. Proksch, 832 N.E.2d 1080, 1102 (Ind. Ct. App. 2005).
Indiana follows the American Rule, which ordinarily requires each party to pay
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 34 of 37
his or her own attorney’s fees. Id. “Generally, attorney’s fees are not
recoverable from the opposing party as costs, damages, or otherwise, in the
absence of an agreement between the parties, statutory authority, or [a] rule to
the contrary.” Id.
[53] Mother argues that the trial court erred in denying her request for attorney fees.
She asserts that she is entitled to attorney fees under Paragraph 11 of the
Agreed Entry, which stated, “In the event that either party wishes to petition
the court for a modification of child support, then the party which petitions the
court shall be responsible for the other party’s attorney fees.” Appellant’s App.
Vol. 2 at 20. Mother contends that because Father’s petition to modify custody
also contained a request for child support to be modified, her request for
attorney fees was required to be granted unless the trial court found fraud,
duress, or lack of consent in the signing of the Agreed Entry.
[54] Dissolution settlement agreements may contain binding provisions regarding
attorney fees, including allocation of fees in future disputes between the parties.
Stone v. Stone, 991 N.E.2d 992, 1004 (Ind. Ct. App. 2013) (citing Pond v. Pond,
700 N.E.2d 1130, 1136 (Ind. 1998)). Unless a trial court finds evidence of
fraud, duress, or other imperfections of consent, the court must give full force
and effect to a settlement agreement’s attorney fees provisions. Id.
[55] Here, although the Agreed Entry contained Paragraph 11, a provision requiring
the allocation of attorney fees to the opposing party when the other party
sought a modification of child support, this was not what occurred in the
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 35 of 37
present case. Father filed a petition for modification of custody, claiming
changed circumstances such that a change of custody was in the best interests of
Child. Incidental to his requested modification of custody, Father requested
modifications of child support and parenting time and for all other just and
proper relief because if the trial court granted his petition to modify child
custody in his favor, child support and parenting time would have to likewise be
modified to reflect the change in custody. We conclude that Paragraph 11 did
not contemplate a requirement to pay attorney fees when a party filed a motion
to modify custody, which incidentally includes a request to modify child
support, as such a requirement is not explicitly stated. If such a requirement
was contemplated, it could have been explicitly written into the Agreed Entry.
We, therefore, find that the trial court did not abuse its discretion in denying
Mother’s request for attorney fees.
[56] Affirmed in part, reversed in part, and remanded with instructions.
Bradford, J., concurs.
Baker, J., concurs with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 36 of 37
IN THE
COURT OF APPEALS OF INDIANA
Christopher Vicoli, Court of Appeals Case No.
41A04-1711-DR-2624
Appellant/Cross-Appellee-Petitioner,
v.
Ashley Mullica (Vicoli),
Appellee/Cross-Appellant-Respondent
Baker, Judge, concurring.
[57] I fully concur with the majority opinion. I write separately to note that I believe
the facts in the record readily support a conclusion that Father’s mid-week
parenting time would significantly impair Child’s emotional development.
Specifically, Child has ADHD and Major Depressive Disorder and gets upset
when her routine is disrupted. Tr. Vol. II p. 85-86. As such, it would be
eminently reasonable to conclude that a mid-week disruption would pose a risk
to Child’s emotional well-being. But because there are no specific factual
findings to that effect in the trial court’s order, I agree with the majority’s
resolution of this issue.
Court of Appeals of Indiana | Memorandum Decision 41A04-1711-DR-2624 | August 14, 2018 Page 37 of 37