In re the Paternity of C.D. Courtney Barber v. Mitchell Dorsey (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 09 2019, 8:47 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT
Linda L. Harris
Kentland, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Paternity of C.D. October 9, 2019

Courtney Barber, Court of Appeals Case No.
19A-JP-665
Appellant-Defendant,
Appeal from the
v. Benton Circuit Court
The Honorable
Mitchell Dorsey, Rex W. Kepner, Judge
Trial Court Cause No.
Appellee-Plaintiff
04C01-1808-JP-000056

Vaidik, Chief Judge.

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Case Summary
[1] Courtney Barber (“Mother”) appeals the trial court’s order awarding primary

physical custody of C.D. (“Child”) to Mitchell Dorsey (“Father”). Finding that

the evidence supports the trial court’s decision, we affirm.

Facts and Procedural History
[2] Mother is from Athens, Georgia, and Father is from Fowler, Indiana. Mother

and Father (collectively, “Parents”) met at a go-kart race in Tennessee in 2014.

Soon after, Mother moved from Georgia to Indiana to pursue a relationship

with Father. In January 2015, about a year after Mother moved to Indiana,

Child was born. Parents were never married, and Father’s paternity of Child

was established by signing a paternity affidavit at Child’s birth.

[3] Mother stayed home with Child for the first year of his life while Father worked

at his grandfather’s hardware store. After that, Mother began working part-

time for BP and Dollar General. At some point, Mother quit working for BP

and Dollar General and went to work at IGA, a local grocery store, because it

“had a little bit of a better pay.” Tr. p. 96. However, the family still struggled,

and one time, Mother and Child had to go stay with her parents in Georgia

because their house had no electricity. Mother borrowed money from her

father to get the electricity turned back on and returned to Indiana two weeks

later. When she returned, Mother got a job at a family-medicine practice in

Lafayette. Then, in May 2018, Mother sent Father a text message saying that

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she was going to move back to Georgia with Child. Father thought Mother

was being dramatic until she told him that she and Child were in Kentucky.

[4] In August 2018, while Mother and Child were in Georgia, Father filed a

petition to establish legal and physical custody as well as child support. A

hearing on Father’s petition was held in February 2019. At the beginning of the

hearing, Parents informed the trial court that they had agreed to share joint

legal custody of Child, that Mother would claim Child on taxes for even years

and Father would claim Child on odd years, and that they would meet in

Portland, Tennessee, to exchange Child for whatever parenting time the court

decided upon. See Tr. pp. 6-7. The trial court accepted those agreements and

then proceeded to hear evidence regarding physical custody of Child.

[5] Father testified that he has lived in the same house in Fowler, which was

previously owned by his parents, his entire life. See id. at 18. Father said that

he works from 8 a.m. to 5 p.m. at Kirby Risk, an electrical-supply distributor,

and has been with the company for two-and-a-half years. See id. at 18, 21.

Father alleged that in the four years that Mother and Child lived with him, he

“took care of [Child] equally as [Mother] did.” Id. at 25. Father said that Child

lived in Indiana for most of his life and has a “very close relationship” with

Father’s mother, Child’s cousin, Father’s grandmother, and Child’s godparents,

who all live nearby. Id. at 32. Mother testified that she now works for a

Walmart auto center in Georgia from 11 a.m. to 8 p.m. and can provide Child

health insurance. Mother explained that Child has adapted to life in Georgia

and “is crazy about his Papa and Gigi,” her parents. Id. at 113. Mother stated

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that she and Child share a room and live with her parents and her younger

brother but that she is saving money to get her own place. Id. Both Parents

also called witnesses who testified that each is a good parent. See id. at 56, 74.

After the hearing, the trial court issued its order granting Father primary

physical custody of Child. In reaching this decision, the trial court found:

1. [Mother] unilaterally decided to move back to Georgia with
Child.

2. Both parties spent quality time with [Child] when [Parents]
resided together, although [Mother] did exercise “more” time
with [Child]. Both parents are good parents and are capable of
giving [Child] what he needs.

*****

4. The Fowler Indiana housing for [Child] is more appropriate
for [Child]. He resided in Fowler for approximately four years
prior to [Mother’s] relocating to Georgia. [Mother] currently
resides with her parents in Georgia, and [Child] shares a
bedroom with [Mother].

*****

6. [Mother] has changed jobs numerous times[.]

7. Concerning general stability, [Father] is in a permanent home
and has maintained his current employment for quite some time.
It appears far less likely that if [Child] were with [Father]
primarily that [Child] would have any significant changes in his
housing or parenting time and schedule. [Father’s] situation is
more stable and is likely to remain unchanged.

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8. Significant family members and friends have been more firmly
rooted in or near Fowler, Indiana as a result of living in Fowler
since birth. [Father] has family members, especially his mother,
which has [sic] spent much quality time with [Child]. [Mother]
has significant family members involved in [Child’s] life, and
although wonderfully sounding family members, the “time” that
[Child] has already spent with family members is more
substantial in or around the Fowler or Lafayette area. . . .

The Court has considered ALL the statutory factors in deciding
what is in the best interest of [Child]. There is not a GOOD
situation to be had in this circumstance, where [Mother] and
[Father] of [Child] do not maintain their relationship AND
[Mother] finds her best choice is to move back to Georgia,
apparently 600 miles away according to counsel, from where
[Child] has spent his previous four years. . . .

Having considered all the evidence, the disputed and undisputed
testimony, and all the statutory factors, the Court finds the
“better” of these two unfortunate options is for [Father] to
become the primary custodial parent.1

Appellant’s App. Vol. II pp. 35-36.

[6] Mother now appeals.

1
The trial court also found that “[Child] is a young boy, and [Father] will provide [Child] with more habits,
attitude, hobbies and mannerisms more appropriate for a boy.” Appellant’s App. Vol. II p. 35. Mother
challenges this finding, but because we find that the trial court’s other findings support its decision, we need
not address whether this finding is proper.

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Discussion and Decision
[7] Mother contends that the trial court abused its discretion by granting Father

primary physical custody of Child. We first note that Father did not file an

appellee’s brief. When the appellee fails to submit a brief, we will not develop

an argument on his behalf but, instead, we may reverse the trial court’s

judgment if the appellant’s brief presents a case of prima facie error. GEICO Ins.

Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014).

[8] Child-custody determinations fall squarely within the discretion of the trial

court and will not be disturbed except for an abuse of discretion. In re B.H., 770

N.E.2d 283, 288 (Ind. 2002). Reversal is appropriate only if we find that the

trial court’s decision is against the logic and effect of the facts and

circumstances before it or the reasonable inferences drawn therefrom. Id. We

do not reweigh the evidence or determine the credibility of witnesses. Hughes v.

Rogusta, 830 N.E.2d 898, 902 (Ind. Ct. App. 2005). Instead, we consider the

evidence most favorable to the judgment, with all reasonable inferences drawn

in favor of the judgment. Id.

[9] Indiana Code Section 31-14-13-2 provides that in a paternity action:

The court shall determine custody in accordance with the best
interests of the child. In determining the child’s best interests,
there is not a presumption favoring either parent. The court shall
consider all relevant factors, including the following:

(1) The age and sex of the child.

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(2) The wishes of the child’s parents.

(3) The wishes of the child, with more consideration given
to the child’s wishes if the child is at least fourteen (14)
years of age.

(4) The interaction and interrelationship of the child with:

(A) the child’s parents;

(B) the child’s siblings; and

(5) The child’s adjustment to home, school, and
community.

(6) The mental and physical health of all individuals
involved.

(7) Evidence of a pattern of domestic or family violence by
either parent.

(8) Evidence that the child has been cared for by a de facto
custodian, and if the evidence is sufficient, the court shall
consider the factors described in section 2.5(b) of this
chapter.

We have said that “[c]ontinuity and stability in the life of a child is an

important component in determining the proper custodial arrangement for a

child.” In re Paternity of M.J.M., 766 N.E.2d 1203, 1210 (Ind. Ct. App. 2002).
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[10] Here, the trial court found as follows: both Parents are good parents and are

capable of giving Child what he needs; significant family members and friends

have been more firmly rooted in or near Fowler, as a result of Child living in

Fowler since birth; Father’s housing in Fowler is more stable for Child; Mother

unilaterally decided to move back to Georgia with Child; Mother has changed

jobs numerous times; and Father’s situation is more stable and is likely to

remain unchanged. Appellant’s App. Vol. II p. 35. What this case truly boils

down to is that the trial court was put in the difficult position of choosing

between what it thought were two good parents and selected Father. Mother’s

complaints about the trial court’s findings are essentially requests for us to

reweigh the evidence in her favor, which we may not do. We therefore

conclude that the trial court did not abuse its discretion in granting Father

primary physical custody of Child.

[11] Affirmed.

Riley, J., and Bradford, J., concur.

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