MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 13 2020, 11:36 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Allison L. Martinez Wheeler Ryan M. Spahr
Wheeler Law Firm, LLC Spahr Law Office, LLC
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of March 13, 2020
A.G. (Minor Child): Court of Appeals Case No.
19A-JP-2304
Appeal from the Hendricks Circuit
A.H. (Mother), Court
Appellant, The Honorable Daniel F. Zielinski,
Judge
v.
Trial Court Cause No.
32C01-1106-JP-62
J.G. (Father),
Appellee.
Bailey, Judge.
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Case Summary
[1] A.H. (“Mother”) challenges the modification of physical custody of her
youngest child, A.G. (“Child”), to Child’s father, J.G. (“Father”).1 We affirm.
Issues
[2] Mother presents two issues for review:
I. Whether an interim order denied her due process; and
II. Whether the custody modification order is an abuse of the
trial court’s discretion.
Facts and Procedural History
[3] Child was born in 2011, and Mother and Father executed a paternity agreement
providing that they would share legal custody and Mother would have primary
physical custody of Child. Father regularly exercised parenting time,
commencing overnight visits after Child’s infancy. Father and Mother also
began cohabitating in 2017, at a residence owned by Father, but they separated
in 2018.
1
Child has three older half-siblings. Mother has her two older children in her physical and legal custody.
Father’s elder child lives with Father and Father’s mother, without a court order for that custodial
arrangement.
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[4] On June 1, 2018, Father filed an Emergency Verified Petition for Modification
of Custody. Additionally, he filed an objection to Mother’s relocation with
Child to Martinsville, Indiana, a distance of twenty-five miles from Father’s
residence. A Guardian Ad Litem (“GAL”) was appointed to represent Child.
On July 30, 2018, the trial court conducted a telephonic status conference and
the parents agreed that Child would continue to attend Mill Creek School, in
Father’s residential district.
[5] On August 14, 2018, the GAL filed her first report. The GAL opined that the
parents were able to cooperatively co-parent (despite some conflict and room
for improvement), and the GAL would have been inclined to recommend equal
parenting time, had there not been a relocation concern. She observed that the
parents had recently ended their cohabitation, and Mother had experienced
“recent residential instability and current financial instability.” (App. Vol. II,
pg. 34.) The GAL concluded,
Ultimately, this case is very difficult to determine whether or not
[Child] should be in Mother or Father’s primary physical custody
given the distance between their homes. If pressed, GAL has
enough hesitation regarding Mother’s residential and financial
stability and moving [Child] to yet another school that GAL
would likely recommend [Child] be in Father’s primary physical
custody and attend school in Mill Creek, where he is already
familiar with the school from past attendance. However, the
Court may see this matter otherwise once the facts are presented
at hearing, and therefore, GAL has provided recommendations
for parenting time in both scenarios.
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Id. at 34-35. Shortly thereafter, Mother married, and she and her spouse
purchased a residence in the Martinsville school district.
[6] On February 8, 2019, the GAL filed an updated report. She noted that Child
had experienced behavioral problems at Mill Creek, as he had done in his prior
school. She reiterated her opinion that Child needed a psychological evaluation
and counseling, and again expressed difficulty with making a firm
recommendation as to custody. She concluded with the language: “GAL
believes the Court should adopt the parenting time schedule recommended
under Paragraph #3 of the August 2018 recommendations to close the 2018-
2019 school year so that [Child] can hopefully feel less ‘stuck’ in the middle for
the remainder of this school year.” Id. at 39. A custody modification hearing
was scheduled for February 13, 2019.
[7] On February 11, 2019, Mother filed a motion for a continuance of the hearing.
In support of the motion, she stated that: (1) Mother and Father had agreed
with the GAL recommendation that Child complete his school year at Mill
Creek; (2) they had agreed with the recommendation that Child complete
school-based counseling through the Hamilton Center; and (3) “holding a
modification hearing seems unnecessary at this time since the parties have
agreed to keep the minor child in the recommended school for the remainder of
the 2018-2019 school year, and that the minor child should be evaluated
through the school; and therefore, [Mother] requests that the modification
hearing be reset at the end of the 2018-2019 school year.” Id. at 45-46. On the
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following day, the trial court granted Mother’s motion and set the matter for a
hearing to be held on May 29, 2019.
[8] Having not yet received notice of the trial court’s action, Father filed his
objection to the motion for a continuance. According to Father, the parenting
time schedule designating Father as the noncustodial parent was not sustainable
until the end of the school year, given the distance between the parties. He
asked that, if the court granted Mother’s motion for a continuance, it also adopt
Paragraph 3 of the GAL’s report.
[9] After reviewing Father’s objection, the trial court issued a February 12, 2019
order that was entered into the Chronological Case Summary (“CCS”),
directing the parents to comply with Paragraph 3 of the GAL report. The
practical effect of this action was that, during the school year, Mother had
parenting time with Child one overnight per week and alternate weekends.
[10] On March 22, 2019, Mother filed a pro-se Motion for an Emergency Hearing.
She advised the trial court that Child was suffering emotional harm in his
current school placement and that her former attorney had requested the
continuance against Mother’s wishes. The trial court ordered the parties to
mediation but maintained the hearing setting. Subsequently, the trial court
vacated the order for mediation, the parties engaged in and filed various
motions related to discovery, and the trial court ordered the parties to use a co-
parenting messaging application.
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[11] On May 29, 2019, the trial court conducted the custody modification hearing,
at which Mother, Father, and the GAL testified. On June 12, 2019, the trial
court entered an order granting primary physical custody of Child to Father.
Mother filed a motion to correct error, which was denied by the trial court on
September 3, 2019.2 Mother now appeals.
Discussion and Decision
Due Process
[12] Mother contends that the order entered into the CCS on February 12, 2019
effectively granted Father temporary physical custody of Child and did so in a
manner that violated Mother’s right to due process. She asserts that she was
summarily deprived of parenting time without an opportunity to be heard in a
timely hearing.
[13] Father concedes that the trial court’s adoption of the GAL recommendation
allocated time with Child in a manner akin to awarding Father temporary
physical custody, but he asserts that maintaining the status quo until the end of
the school year was untenable. He describes the background for the GAL
recommendation as follows:
2
Mother also filed an Amended Motion to Correct Error. However, an amended motion to correct error is a
repetitive motion that does not extend the time for filing a notice of appeal. See Walters v. Austin, 968 N.E.2d
233, 235 (Ind. Ct. App. 2012).
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Despite attending school at Mill Creek, until February 12, 2019
Child was still living primarily 37-45 minutes away with Mother.
The onerous drive time was exacerbated by the fact that on
Father’s mid-week parenting time nights, Mother would often
insist on picking Child up from school in Clayton and taking him
with her back to her home in Martinsville, and then require
Father to pick Child up from Martinsville to begin his parenting
time, only to drive Child back again to Father’s home in Clayton,
and back yet-again to Martinsville at the conclusion of parenting
time – all for Child to have to be driven back to Clayton for
school in the morning.
Appellee’s Brief at 17. According to Father, once the parties agreed that Mill
Creek was to be Child’s school for the entire school year, they had – as a
practical matter – agreed that Father would provide Child’s primary residence
and Mother’s time with Child was necessarily diminished.
[14] Due process, although not defined, embodies a concept of “fundamental
fairness.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). Because child custody
proceedings implicate the fundamental parent-child relationship, Indiana courts
have recognized that procedural due process must be provided to protect the
substantive rights of the parties. Brown v. Brown, 463 N.E.2d 310, 313 (Ind. Ct.
App. 1984). In Brown, the mother had been granted custody in an ex parte
temporary emergency order, but the cumulative effect of three procedural
irregularities, including statutory non-compliance, required reversal of the
custody order. See id. In Wilcox v. Wilcox, 635 N.E.2d 1131, 1136 (Ind. Ct.
App. 1994), a panel of this Court reversed a custody order where Mother
(exercising supervised visitation) had been “effectively removed from [her]
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children’s lives” and the children had been “firmly entrenched in Father’s life,”
as Mother waited “for almost two years” before she had an opportunity to be
heard.
[15] The conduct of the proceedings here was not akin to that in Brown or Wilcox.
The trial court did not act based solely upon information from one party, as in
an emergency ex parte order. The trial court had the benefit of the GAL report
which addressed, among other things, the matter of Mother’s relocation.
Mother and Father had advised the trial court that they agreed with the GAL
recommendations for Child’s school placement and counseling. A hearing had
been set to coincide with the end of the school year. The order addressed the
commuting burden upon Child inherent in one parent’s relocation from a
particular school district. Mother was not effectively removed from Child’s life,
and she was not denied the opportunity to be heard for an extended period of
time.
[16] And even if we consider the February 12, 2019 order to be equivalent to a
temporary change of custody absent agreement, we can provide Mother no
relief at this juncture, apart from our review of the merits of the final custody
decision. In Stratton v. Stratton, 834 N.E.2d 1146, 1149 (Ind. Ct. App. 2005),
this court held that once a final custody determination has been made, issues
regarding a determination of temporary custody are moot. As we observed in
Stratton, because the period of temporary custody has passed and a final
determination has been made, we cannot render effective relief when a parent is
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“attacking the validity of the trial court’s temporary custody determination.”
Id.
Modification
[17] A parent seeking modification of child custody bears the burden of proving that
the existing custody order should be altered. Steele-Giri v. Steele, 51 N.E.3d 119,
124 (Ind. 2016). Indiana Code Section 31-17-2-21 provides that a court may
not modify a child custody order unless the modification is in the best interests
of the child and there is a substantial change in one or more of the pertinent
statutory factors for an initial award of custody. The factors of Indiana Code
Section 31-17-2-8 include the following relevant here:
(1) The age and sex of the child;
(2) The wishes of the child’s parent or parents;
(3) The wishes of the child, with more consideration given to the
child’s wishes if the child is at least fourteen (14) years of age:
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s
best interests;
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(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community;
(6) The mental and physical health of all individuals involved;
(7) Evidence of a pattern of domestic or family violence by either
parent …[.]
[18] Mother contends that the custody modification order is contrary to Child’s best
interests and that the evidence did not show a substantial change in
circumstances. We review a child custody determination for an abuse of
discretion. Gonzalez v. Gonzalez, 893 N.E.2d 333, 335 (Ind. Ct. App. 2008). In
considering the facts and circumstances before it, and exercising its discretion,
the trial court is not free to disregard statutory guidance. See id. Here, the trial
court sua sponte entered findings and conclusions thereon. We will set aside a
finding or the judgment only if it is clearly erroneous, that is, if there are no
facts or inferences drawn therefrom to support it. Montgomery v. Montgomery, 59
N.E.3d 343, 349 (Ind. Ct. App. 2016). However, sua sponte findings control
only with respect to the issues covered, and a general judgment standard applies
to issues outside the findings, meaning that the reviewing court should affirm
based on any legal theory supported by the evidence. Steele-Giri, 51 N.E.3d at
123-24.
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[19] The order on appeal contains factual findings with respect to the parties’
employment and income, together with very limited findings regarding the
interaction of the parents and their interaction with Child. Specifically, the trial
court found that Mother had been non-compliant with a parenting time order,
had physically assaulted Father in the presence of Child, and had reported
Father to Child Protective Services (“CPS”). The trial court stated, generically,
that it had considered Child’s age and sex, and Mother’s “mental and
emotional issues.” Appealed Order at 1.
[20] Mother challenges the factual finding as to her non-compliance. She observes
that the parties’ agreement, adopted by the court in paternity proceedings, did
not provide for overnight visits because Child was an infant. As such, Mother
was not specifically obligated by a court order to permit Father overnight
parenting time at all. The evidence of record indicates that Father and Mother
had traditionally agreed upon the division of parenting time. Father testified
that, after he and Mother ended their cohabitation, Mother was less
cooperative. According to Father, Mother sometimes “offered more [parenting
time]” to Father, sometimes offered less if he had “irritated her,” and
sometimes was “uncooperative with transportation.” (Tr. Vol. II, pgs. 30-31.)
He described his parenting time as ranging from one overnight per week to two
overnights. He testified that he sometimes enjoyed less parenting time than that
prescribed by the Indiana Parenting Time Guidelines. We acknowledge that
the trial court found Mother non-compliant, but “it is well-settled that in order
to support a modification of custody, such interference must be continuing and
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substantial.” Montgomery, 59 N.E.3d at 351. The testimony did not establish a
continuing and substantial interference on Mother’s part.
[21] As for the physical assault, the trial court was in the best position to make a
credibility determination in the face of conflicting evidence. See Kirk v. Kirk,
770 N.E.2d 304, 307 (Ind. 2002) (recognizing that trial courts, unlike appellate
courts, have the ability to observe witness demeanor and scrutinize their
testimony as it is presented). A police report indicated that Father accused
Mother of striking him in the face, while Mother and her then-boyfriend
reported that the encounter had involved only mutual nudging with elbows.
Nonetheless, Father testified at the custody hearing that Mother “hit him in the
face” with Child seated nearby in Father’s truck. (Tr. Vol. II, pg. 39.) The trial
court credited this testimony, and we do not interfere with the credibility
determination. See In re the Marriage of Sutton, 16 N.E.3d 481, 484 (Ind. Ct.
App. 2014) (observing that we do not reweigh evidence nor judge credibility of
witnesses in a child custody matter). Finally, Mother challenges the finding
that ascribed fault to her for making unsubstantiated CPS reports. She
complains that the trial court did not consider a report Father made to CPS
regarding Mother’s care or supervision of Child. Again, we cannot reweigh the
evidence before the trial court. Id.
[22] The limited findings do not specifically address Child’s familial interactions and
his adjustment to his home, school, and community. We therefore look to the
evidence favorable to the judgment to determine if the modification is
supported by the evidence. Id. There was evidence that Child was bonded to
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each of his parents and to his siblings in both households. He participated in
sports and spent time with both paternal and maternal grandparents. His
behavioral problems were significant. Child had persistently exhibited lack of
control in school settings by kicking, hitting, threatening, cursing, and
punching. He had once stabbed a school employee with a pencil. He
threatened to bring a gun to school and kill people.
[23] Child was awaiting an evaluation to obtain an individualized education plan at
Mill Creek. He was receiving psychological counseling services at Hamilton
Center and behavioral coaching at his school. Father testified that the
behavioral coach offered private sessions during the summer break, and Father
intended that Child participate in the private sessions. The GAL testified that
Child was receiving “heavy duty” services in his current school system; she
didn’t like the idea of Child moving from school to school; she acknowledged
that she had made a “nebulous” custody modification recommendation, but, if
she were “pressed,” she would recommend custody be placed with Father. Id.
at 63, 72.
[24] Mother argues that Father demonstrated no change in circumstances that was
of substantial significance, and that Child’s placement with Mother, who now
works in a special education classroom, is in Child’s best interests. Mother
observes that Child has had behavioral problems in more than one school and
that he could receive psychological services in her school district. We are
mindful that “the effect on the child is what renders a change substantial or
inconsequential.” In re Sutton, 16 N.E.3d at 485. The GAL was appointed to
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represent Child’s best interests, and she expressed concern that moving Child
from his current school would reward him for his acting out. She opined that
either parent was fit to have physical custody of Child. However, it is not
enough that the evidence might have supported a different conclusion. Kirk,
770 N.E.2d at 307. Rather, we will reverse only when the evidence positively
requires the conclusion contended for by the appellant. Id. That is not the case
here.
Conclusion
[25] Mother has not shown a deprivation of her due process rights, nor has she
demonstrated an abuse of the trial court’s discretion.
[26] Affirmed.
Kirsch, J., and Mathias, J., concur.
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