FILED
Feb 27 2019, 5:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cody Cogswell David P. Murphy
Cogswell & Associates David P. Murphy & Associates,
Fishers, Indiana P.C.
Greenfield, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Micayla N. Smith, February 27, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-DR-297
v. Appeal from the Madison Circuit
Court
Nathan W. McPheron, The Honorable Angela Warner
Appellee-Respondent. Sims, Judge
The Honorable Kevin M. Eads,
Magistrate
Trial Court Cause No.
48C01-1603-DR-205
Najam, Judge.
Statement of the Case
[1] Micayla N. Smith (“Mother”) appeals the trial court’s modification of physical
custody over her minor child, G.M. (“Child”), from Mother to Nathan
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McPheron (“Father”). Mother raises five issues for our review,1 which we
restate as the following four issues:
1. Whether the trial court’s modification order is clearly
erroneous.
2. Whether the trial court abused its discretion when it
declined to hold Father in contempt for his child-support
arrearage.
3. Whether trial court abused its discretion when it declined
to award Mother attorney’s fees based on Father’s child-
support arrearage.
4. Whether the trial court abused its discretion when it
denied Mother’s request to proceed in forma pauperis on
appeal.
1
In his brief, Father asserts that Mother’s notice of appeal was not timely filed and, as such, she has forfeited
her appeal. See Ind. Appellate Rule 9(A)(5). We agree with Father that Mother’s notice of appeal was not
timely filed; the trial court’s final judgment was noted in the court’s chronological case summary on January
9, 2018, which made Mother’s notice of appeal due on Thursday, February 8, 2018. App. R. 9(A)(1).
However, Mother did not file her notice of appeal until February 12, 2018. Thus, she did not timely file her
notice of appeal.
Father made this argument to our motions panel, and our motions panel initially agreed to dismiss
Mother’s appeal due to her untimely filing. However, on Mother’s petition for rehearing, our motions panel
agreed to vacate its dismissal order and reinstate her appeal notwithstanding her procedural default. As our
Supreme Court has emphasized, an untimely notice of appeal does not go to this Court’s jurisdiction to hear
the appeal, and, notwithstanding an untimely notice of appeal, we may in our discretion hear an appeal on
the merits. Gr. J. v. Ind. Dep’t of Child Servs. (In re D.J.), 68 N.E.3d 574, 578-80 (Ind. 2017).
Although a writing panel of this Court has “inherent authority to reconsider any decision while an
appeal remains in fieri,” we are “reluctant to overrule orders decided by the motions panel.” John C. &
Maureen G. Osborne Revocable Family Trust v. Town of Long Beach, 78 N.E.3d 680, 692 (Ind. Ct. App. 2017),
trans. denied; see also Moriarity v. Ind. Dep’t of Nat. Res., 113 N.E.3d 614, 623 (Ind. 2019) (noting that Indiana’s
appellate courts prefer to resolve cases on their merits). Accordingly, we decline Father’s request to once
again consider this issue.
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[2] We affirm the trial court’s judgment on the first three issues but reverse the trial
court’s denial of Mother’s motion to proceed in forma pauperis.
Facts and Procedural History2
[3] In March of 2016, Mother filed a petition for the dissolution of her marriage to
Father. Child was the only child of the marriage and was just shy of three years
old at the time Mother filed the petition for dissolution. In June, the trial court
entered its decree of dissolution. In the decree, the court awarded primary
physical custody over Child to Mother and ordered Father to pay $85 per week
in child support.
[4] In May of 2016, Mother lived in a third-floor apartment with her boyfriend,
Brandon George, and George’s minor child in Anderson. On May 22,3
neighbors called police to report that Child had been left unattended on the
apartment’s balcony. Officers arrived and, later, case managers with the
Indiana Department of Child Services investigated. Mother admitted to family
case manager William Griffin that she had left Child on the third-floor balcony
unattended. While Child was on the balcony, Mother and George were
2
We note that, contrary to our appellate rules, Mother’s Statement of Facts in her brief on appeal is not
“stated in accordance with the standard of review appropriate to the judgment or order being appealed.”
App. R. 46(A)(6)(b). We also note that Father’s Statement of Facts in his brief does not include citations to
the record on appeal or an appendix, which is contrary to Indiana Appellate Rule 46(A)(6)(a). The parties’
failures to adhere to our appellate rules have impeded our review of this appeal.
3
Although the May 22, 2016, incident occurred prior to the decree of dissolution, there is no dispute in this
appeal that Father did not have notice of the incident at the time of the decree as apparently case managers
for the Indiana Department of Child Services were unable to locate him.
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“sleeping” after they had both smoked marijuana. Tr. Vol. I at 247-48. George
admitted that “he was a chronic . . . user” of marijuana. Id. at 248.
[5] In March of 2017, Mother and George had moved into a rental house together
with Child and George’s minor child. On March 27, Child was found
unattended and wandering on streets about three or four blocks from Mother’s
residence. When Child was returned to Mother, she admitted that she had been
sleeping after having smoked marijuana and was unaware that Child had left
the residence.
[6] Father filed an emergency petition for modification of physical custody over
Child following the March 2017 incident. The trial court held an initial fact-
finding hearing shortly thereafter, after which the court concluded that no
emergency existed but that the court would continue to hear Father’s request to
modify custody on a nonemergency basis. After several subsequent fact-finding
hearings, on September 22 the court granted Father’s request for modification
of physical custody over Child.
[7] In its modification order, the court found “Mother’s . . . testimony . . . that she
could be around marijuana and/or people who use it without feeling any urge
to use herself” to be inconsistent with “fundamental tenants of substance abuse
therapy” and “disturbing.” Appellant’s App. Vol. 2 at 13-14. The court also
disapproved of Father having “gone for extended periods without paying
support . . . .” Id. at 14. And the court noted that “each parent has made
conscious decisions which have clearly not been in [Child’s] best interest. Both
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parties have demonstrated a level of immaturity . . . .” Id. Nonetheless, the
court concluded that, in light of the fact that “Mother has twice had [Child]
escape unattended, both times after she and her boyfriend had used
substances,” there had been “a substantial and continuing change in
circumstances” to justify modification of physical custody over Child from
Mother to Father. Id. at 15.
[8] The court initially reserved judgment on the issue of Father’s outstanding child
support arrearage, but, on January 8, 2018, the court found that Father owed
$1,080 in back child support. Following the January 8 judgment, Mother
moved the trial court to find her indigent for purposes of an appeal. The trial
court declined and instead found that Mother was voluntarily unemployed as
she had left paid employment to work as an unpaid intern in support of a new
career path. This appeal ensued.
Discussion and Decision
Issue One: Modification of Physical Custody
[9] On appeal, Mother first asserts that the trial court erred when it modified
physical custody over Child from Mother to Father. “A child custody
determination is very fact-sensitive.” Steele-Giri v. Steele (In re Marriage of Steele-
Giri), 51 N.E.3d 119, 125 (Ind. 2016). Where, as here, the trial court’s
judgment is supported by findings of fact following an evidentiary hearing, we
review the trial court’s judgment under our clearly erroneous standard of
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review. E.g., id. “Findings of fact are clearly erroneous when the record lacks
any evidence or reasonable inferences from the evidence to support them.” Id.
[10] “[I]n order for the trial court to modify custody, it must find both that: 1)
modification is in the best interests of the child; and 2) there is a substantial
change in one or more of the factors enumerated in [Indiana Code Section 31-
17-2-8 (2018)].” Id. at 127. As relevant here, Indiana Code Section 31-17-2-
8(6) directs the trial court to consider “[t]he mental and physical health of all
individuals involved.”
[11] Mother first argues that the trial court’s modification order is clearly erroneous
because the court denied Father’s request for an emergency modification but
continued to hear Father’s request on a nonemergency basis. Relatedly,
Mother asserts that there was no change in circumstances in the interval
between the court finding that no emergency existed and later determining that
a modification was nonetheless justified. We conclude that Mother’s
arguments are not supported by cogent reasoning, and, thus, we do not consider
them. Ind. Appellate Rule 46(A)(8)(a).
[12] Mother also asserts that Child did not “suffer any harm while in [Mother’s]
care.” Appellant’s Br. at 12. Mother’s assertion is not supported by the record
most favorable to the trial court’s judgment. Contrary to Mother’s assertion,
Child was twice left unattended by Mother in areas that posed dangers to him,
namely, a third-floor balcony and local streets several blocks from Mother’s
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residence. Mother’s argument, insofar as it is here supported by cogent
reasoning, is contrary to our standard of review, and we reject it.
[13] Mother next argues that the trial court’s modification order is clearly erroneous
because, in some appeals from child-in-need-of-services and termination-of-
parental-rights determinations, we have held that isolated uses of marijuana
that do not endanger the child are insufficient to support those determinations.
But Mother cites no authority for support of her apparent position that a trial
court errs as a matter of law when, as here, the court modifies custody from one
parent to another on the basis of the first parent’s repeated drug use, which use
resulted in endangerment to the child. Accordingly, we conclude that Mother
has also not preserved this issue for appellate review. App. R. 46(A)(8)(a).
[14] Mother also argues that custody with Father is not in Child’s best interests. In
support of this argument, Mother relies on the evidence before the trial court,
much of which the court expressly acknowledged in its modification order, that
Father is far from perfect and that Mother has played a positive role in Child’s
life. But Mother’s argument on appeal is merely a request to have this Court
reweigh evidence that the trial court has already weighed and considered,
which we will not do. We cannot say that the trial court’s order modifying
physical custody over Child from Mother to Father is clearly erroneous, and,
thus, we affirm.
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Issue Two: Contempt
[15] Mother next asserts that the trial court should have held Father in contempt for
his failure to timely pay child support.4 As the Indiana Supreme Court has
made clear: “Like with the custody determination, trial courts are given great
deference in contempt actions. Crucial to the determination of contempt is the
evaluation of a person’s state of mind, that is, whether the alleged
contemptuous act was done willfully.” Steele-Giri, 51 N.E.3d at 129. We
review the trial court’s judgment on whether to impose a sanction of contempt
on a party for an abuse of discretion. E.g., id. We will consider the record only
as it is most favorable to the trial court’s judgment, and we may not substitute
our judgment for that of the trial court. Id.
[16] Here, the trial court considered Mother’s request to hold Father in contempt for
his child-support arrearage to be unjustifiably heavy-handed. As the court
stated to the parties:
I view [the] request for a show cause [order] would sort of be[,]
the horse is already out of the corral on that. . . . We’ve got the
submissions by each party as to the [amount of the arrearage,
which had been in dispute, and] I’m not sure what it benefits us
at this point to continue to beat that horse to death in light of
that . . . .
4
Father’s response on appeal that Mother failed to preserve this issue for appellate review because she raised
it to the trial court for the first time after the September 22, 2017, Order but before the January 8, 2018, Order
is not supported by cogent reasoning. Likewise, we decline to consider Mother’s assertions that Father
somehow violated the Internal Revenue Code.
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Tr. Vol. 3 at 190. As our Supreme Court has put it, “discretion means that, in
many cases, trial judges have options.” Snow v. State, 77 N.E.3d 173, 177 (Ind.
2017). Here, the trial court could have found Father in contempt or not in its
discretion, and we cannot say that the trial court abused its discretion when it
concluded to not do so.
Issue Three: Attorney’s Fees
[17] Mother next asserts that the trial court abused its discretion when it declined to
award her attorney’s fees. The statute regarding attorney’s fees in child-support
matters, Indiana Code Section 31-16-11-1, leaves such judgments to the trial
court’s discretion. Martinez v. Deeter, 968 N.E.2d 799, 810 (Ind. Ct. App. 2012).
In determining whether to award attorney’s fees, the trial court may consider,
among other concerns, “any misconduct on the part of either of the
parties . . . .” Id.
[18] The matters before the trial court were originally before it on Father’s motion to
modify custody based on Mother’s behavior, and, as explained above, the court
agreed with Father that modification of physical custody over Child was
justified. While the court also directed Father to pay his outstanding child-
support arrearage, we cannot say that the court was obliged to order Father to
pay Mother’s attorney’s fees when the court found that Mother was at least
partly responsible for the ongoing proceedings. See, e.g., id. at 810-11; see also
Snow, 77 N.E.3d at 177. We affirm the trial court on this issue.
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Issue Four: Motion to Proceed In Forma Pauperis
[19] Last, Mother asserts that the trial court abused its discretion when it denied her
request to proceed in forma pauperis on appeal.5 Applications to proceed in forma
pauperis on appeal require the applicants to “only convince the court of their
indigency in order to have their application granted.” Campbell v. Criterion
Group, 605 N.E.2d 150, 158-59 (Ind. 1992). “Indigency determinations present
a subject for the sound discretion of the trial court, and a very clear case of
abuse must be shown before this discretionary power can be interfered with” on
appeal. Id. at 159 (citations omitted). However, “‘[a]rbitrary economic
discrimination in the halls of justice is wrong,’” and parties should not be
“denied, by reason of indigency, access to that appellate process which the law
would otherwise afford.” Id. (quoting Campbell v. Criterion Group, 588 N.E.2d
511, 518 (Ind. Ct. App. 1992), vacated).
[20] The trial court here denied Mother’s motion to proceed in forma pauperis only on
the ground that Mother was currently voluntarily unemployed. Father does not
dispute that Mother is currently unpaid as an intern in the legitimate pursuit of
a new career path, that she has no income, and that she has no assets to her
name. Neither do the parties dispute that, prior to becoming an unpaid intern,
Mother earned $13 per hour in her former occupation. In essence, the trial
5
We decline to consider Mother’s argument that the Magistrate who heard the modification and child-
support issues, rather than the Judge, was obliged to also hear Mother’s request to proceed in forma pauperis.
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court imputed Mother’s former income to her for purposes of denying Mother’s
motion to proceed in forma pauperis.6
[21] While the trial court has broad leeway in determining indigency, the effect of
the trial court’s judgment here is to dissuade Mother from either pursuing a new
career path or from pursuing her constitutional right to appeal. See Ind. Const.
art. 7, § 6. In the child-support context, in order to impute income to a parent
due to the parent’s voluntary unemployment the trial court must first determine
that the parent’s voluntary unemployment is “without just cause.” Ind. Child
Support Guideline 3(A)(3). We conclude that Mother’s voluntary
unemployment, without a simultaneous finding that that voluntary
unemployment is without just cause, is not a sufficient basis on which to
support the denial of her motion to proceed in forma pauperis. Accordingly, the
trial court abused its discretion when it denied Mother’s motion to proceed in
forma pauperis. We reverse the trial court’s judgment on this issue and remand
with instructions to have the costs of the preparation of the record of the
proceedings, including the transcript, assessed as a public expense. See
Campbell, 605 N.E.2d at 160-61.
[22] Affirmed in part and reversed and remanded in part.
6
Father’s argument in support of the trial court’s judgment is only that Mother’s own actions are the
ultimate cause for the litigation and appeal. However, our Supreme Court has expressly held that the merits
of an appeal are not relevant to a decision on a motion to proceed in forma pauperis. Campbell, 605 N.E.2d at
158-59.
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Pyle, J., and Altice, J., concur.
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