Andrea Simon and Jimmie Busbee v. Amanda Lynn Busbee and Levi A. Fuller (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jul 31 2017, 9:07 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 APPELLANTS ATTORNEY FOR APPELLEE
Heidi K. Koeneman Randall J. Hammond
Beckman Lawson, LLP Leonard, Hammond, Thoma &
Fort Wayne, Indiana Terrill
Fort Wayne, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Andrea Simon and Jimmie July 31, 2017
Busbee, Court of Appeals Case No.
Appellants-Intervenors, 02A03-1612-JP-02811
v. Appeal from the Allen Superior
Court
Amanda Lynn Busbee, The Honorable Daniel G. Heath,
Judge
Appellee-Petitioner,
The Honorable Daniel G. Pappas,
and Magistrate
Trial Court Cause No.
Levi A. Fuller, 02D07-1206-JP-000348
Appellee-Respondent.

Najam, Judge.

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 Statement of the Case
[1] Andrea Simon and Jimmie Busbee (collectively, “Grandparents”) appeal the

trial court’s denial, following a bench trial, of their petitions for child custody

and grandparent visitation. They raise three issues, which we restate as follows:

1. Whether the trial court committed clear error when it denied
Grandparent’s Petition to Modify Custody.

2. Whether the trial court committed clear error when it denied
Grandparent’s Petition for Grandparent Visitation.

3. Whether the trial court abused its discretion when it ordered
Grandparents to pay Amanda Lynn Busbee’s (“Mother”)
attorney’s fees without an evidentiary hearing.

[2] We affirm.

Facts and Procedural History
[3] Minor child, A.B., was born on June 7, 2012, to Mother and Levi Fuller

(“Father”).1 Mother filed a petition to establish paternity and support on June

26, 2012. On August 6, the trial court entered an order establishing paternity

and awarded sole legal custody to Mother and parenting time to Father.

[4] Although Mother had obtained a four-year degree in criminal justice from

Indiana Tech, she worked as a waitress and/or bartender after A.B. was born,

1
Father did not seek custody of A.B. and does not participate in this appeal.

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 until approximately September 2015. During that time, Mother and A.B. lived

together but Mother relied on Grandparents to provide work-related child care

for A.B. Because Mother’s jobs required her to work late hours—often until

1:00 or 2:00 a.m.—A.B. frequently spent the night at Grandparents’ home.

Grandparents frequently encouraged Mother to allow A.B. to spend the night

with them.

[5] Grandparents had never been married but had been in a relationship for

approximately thirty-two years. They owned a tobacco retail store in Fort

Wayne at which they sold, among other things, various tobacco products,

smoking devices, and sex toys. Grandparents were not salaried employees of

the store, but received all net proceeds from the sales of the business, totaling

approximately $60,000-$70,000 per year. During the day, Jimmie Busbee

(“Grandfather”) was primarily responsible for providing child care for A.B.,

although the Grandparents sometimes took A.B. with them to their store.

When A.B. spent the night with Grandparents, she slept with Grandfather in

his bed.

[6] On September 25, 2014, Mother married Shane Ortega, who is employed with

Jack Cooper Transport and earns approximately $60,000-$70,000 per year.

Mother and Ortega had a child together, S.O., who was born on July 4, 2015.

Ortega also has two minor daughters from a previous marriage, and he has joint

legal custody of them and parenting time with them every other weekend.

After marrying Ortega, Mother began working only two nights per week.

However, by August 2016, Mother had ceased working and stayed at home

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 with the children full-time. Mother and Ortega shared a three-bedroom home

with A.B., S.O., and Ortega’s two minor children.

[7] Even after Mother ceased employment, she still permitted A.B. to have liberal

visitation with Grandparents. However, Mother became concerned that the

Grandparents were not respecting her wishes regarding A.B. Grandparents did

not always bring A.B. home to Mother when asked, and they were sometimes

not at their home with A.B. when Mother tried to pick A.B. up from them.

Mother asked Grandparents to cease taking A.B. to their store, which Mother

believed was inappropriate because of the items sold there, but Grandparents

did not honor that request. Grandparents enrolled A.B. in a school without

Mother’s consent, and Grandfather continued to visit A.B. at school even after

Mother told him not to do so.

[8] Grandfather disliked Ortega, and the two men engaged in a physical fight at

A.B.’s birthday party at Mother and Ortega’s house on June 8, 2015. The fight

led to an investigation by the Allen County Department of Child Services

(“DCS”), which concluded that Mother’s home was safe and proper and the

allegation of neglect was unsubstantiated. On September 23, 2015,

Grandparents contacted DCS regarding an alleged bruise on A.B.’s buttock.

DCS investigated that same day and found no cause to initiate an action

concerning abuse or neglect by Mother or Ortega. However, Grandfather

contacted DCS again on September 25 and reported that he felt A.B. was

unsafe around Ortega. Grandfather admitted to DCS that Grandfather visited

A.B. at her school without Mother’s permission. On September 29,

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 Grandfather again reported to DCS that he had visited A.B. at her school

without Mother’s consent because Mother had told Grandfather she was going

to move A.B. to another school if Grandfather kept visiting A.B. at school.

Around the end of September, Mother ceased allowing Grandparents to visit

with A.B. DCS completed its investigation in mid-October and concluded that

the allegations of abuse and/or neglect of A.B. were unsubstantiated.

[9] On October 13, 2015, Grandparents filed a motion to intervene in the paternity

action involving A.B. and an emergency petition to modify custody of A.B.

The trial court granted the motion to intervene but found no emergency relating

to custody. Grandparents then filed a petition for grandparent visitation,

seeking a visitation order as to A.B. in the alternative to a modified custody

order. The trial court held a four-day hearing on the Grandparents’ petitions

and, on November 14, 2016, it denied those petitions. The magistrate judge

issued detailed findings and recommendations, which the judge approved. In

addition to denying Grandparents’ petitions, the trial court also ordered

Grandparents to pay Mother’s attorney’s fees. This appeal ensued.

Discussion and Decision
Issue One: Modification of Custody

[10] Grandparents appeal the trial court’s findings denying their petition to modify

custody of A.B. from her natural mother to them.

A party challenging a trial court’s findings in this regard will not
succeed unless the order is clearly erroneous “and due regard
shall be given to the opportunity of the trial court to judge the
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 credibility of the witnesses.” Ind. Trial Rule 52. A judgment is
clearly erroneous when it relies on an incorrect legal standard.
Shell Oil Co. v. Meyer, 705 N.E.2d 962, 972 (Ind. 1998). “We
disturb the judgment only where there is no evidence supporting
the findings or the findings fail to support the judgment.” Yoon v.
Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). We do not reweigh the
evidence; rather we consider the evidence most favorable to the
judgment with all reasonable inferences drawn in favor of the
judgment. Id.

T.H. v. R.J., 23 N.E.3d 776, 784 (Ind. Ct. App. 2014), trans. denied.

[11] As the trial court correctly noted, we presume that a parent, rather than a

nonparent, should have custody of his or her child. See, e.g., Francis v. Francis,

759 N.E.2d 1106, 1113 (Ind. Ct. App. 2001), trans. denied. This presumption is

consistent with a parent’s constitutionally protected fundamental right to raise

his or her children. Troxel v. Granville, 530 U.S. 57, 73 (2000). The nonparent

has the burden of overcoming that presumption by clear and convincing

evidence of “a parent’s present unfitness, or past abandonment of the child such

that the affections of the child and third party have become so interwoven that

to sever them would seriously mar and endanger the future happiness of the

child.” Froelich v. Clark (In re L.L.), 745 N.E.2d 222, 230-31 (Ind. Ct. App.

2001), trans. denied. A general finding that it would be in the child’s “best

interests” to be placed with a nonparent is not sufficient to rebut the

presumption. Id. at 231. Rather, only after the nonparent rebuts the

presumption in the parent’s favor by clear and convincing evidence will the

court move on to an analysis of whether a modification of custody would be in

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 the child’s best interests and a consideration of the Grandparent’s status as de

facto custodians,2 if applicable. T.H., 23 N.E.3d at 786.

[12] Here, Grandparents failed to rebut the presumption that Mother’s custody of

A.B. is in the child’s best interests. The evidence supported the trial court’s

findings that Mother is a fit parent. The evidence established that A.B. has a

good relationship with Mother, Ortega, and her siblings and step-siblings.

Mother and her husband have a safe and appropriate home for A.B., and

Grandparents failed to show otherwise. In fact, despite Grandparents’ repeated

complaints to DCS and DCS’s related investigations, DCS found each time that

Mother and her home were appropriate.

[13] Grandparents also failed to prove by clear and convincing evidence that Mother

had abandoned A.B. or acquiesced to Grandparents’ custody of A.B. such that

A.B.’s and Grandparents’ affections had “become so interwoven that to sever

them would seriously mar and endanger” A.B.’s future happiness. In re L.L.,

745 N.E.2d at 231. While it was undisputed that A.B. spent a significant

amount of time with Grandparents from June 2012 to September 2015, the trial

court found that the reason for that was Mother’s work schedule. Specifically,

the evidence established that Grandparents provided child care to A.B. while

Mother worked, often late at night. The trial court found that it would have

been unreasonable for Mother to retrieve A.B. from Grandparents’ home after

2
Grandparents alleged they were the de facto custodians of A.B. pursuant to Indiana Code Sections 31-14-
13-2.5(b) and 31-17-2-8.5(b).

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 she worked late at night, rather than allowing A.B. to spend the night with

Grandparents. Moreover, the evidence established that “Grandparents were

willing and able to watch [A.B.] while Mother worked, so the arrangement

benefited Mother financially by not having to hire daycare, plus it allowed her

to earn an income which permitted her to rent her own apartment for a period

of time, and it benefited [G]randparents because they were willing, able and

content to have [A.B.] in their care.” Appellant’s App. at 20. Thus, the trial

court found that Mother’s acquiescence to A.B. spending so much time with

Grandparents was for the mutual convenience of Mother and Grandparents.

Id. at 17. And the trial court was “convinced that Mother [was] truthful” when

she testified that “it was never her intent to allow [G]randparents to have

custody of [A.B.].” Id. at 20.

[14] The trial court did not commit clear error when it denied the petition to modify

custody because Grandparents had not overcome by clear and convincing

evidence the presumption “that [A.B.’s] best interests [were] best served by

placement with . . . Mother.” Id. at 17. Grandparents’ contentions to the

contrary are simply requests that we reweigh the evidence, which we will not

do. Further, because Grandparents failed to overcome the presumption in

Mother’s favor, we need not address A.B.’s best interests any further, nor do we

address the de facto custodian statutory factors. T.H., 23 N.E.3d at 786.

Issue Two: Grandparent Visitation

[15] In the alternative to custody, Grandparents sought visitation pursuant to

Indiana Code Sections 31-17-5-1 through 31-17-5-10, the Grandparent
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 Visitation Act, which authorizes grandparent visitation when a court finds such

to be in the best interests of the child. The trial court supported its order

denying grandparent visitation with specific findings of fact and conclusions

thereon. Therefore, as with the custody order, we apply our well-established

two-tiered Indiana Rule 52 standard of review:

[F]irst, we consider whether the evidence supports the trial
court’s findings; second, we determine whether the findings
support the judgment. We shall 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 the
witnesses. We will find clear error if there is no evidence
supporting the findings or the findings fail to support the
judgment, or if the trial court applies the wrong legal standard to
properly found facts.

F.M. v. K.F. (In re K.M.), 42 N.E.3d 572, 576 (Ind. Ct. App. 2015) (citations and

quotations omitted).

[16] In proceeding under the Grandparent Visitation Act, the trial court must

address the following four factors:

(1) a presumption that a fit parent’s decision about grandparent
visitation is in the child’s best interests (thus placing the burden
of proof on the petitioning grandparents);

(2) the “special weight” that must therefore be given to a fit
parent’s decision regarding nonparental visitation (thus
establishing a heightened standard of proof by which a
grandparent must rebut the presumption);

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 (3) “some weight” given to whether a parent has agreed to some
visitation or denied it entirely (since a denial means the very
existence of a child-grandparent relationship is at stake, while the
question otherwise is merely how much visitation is appropriate);
and

(4) whether the petitioning grandparent has established that
visitation is in the child’s best interests.

K.J.R. v. M.A.B. (In re M.L.B.), 983 N.E.2d 583, 586 (Ind. 2013) (quotation and

citation omitted).

[17] Here, Grandparents contend that the trial court placed too much emphasis on

the discord between Grandparents and Mother and failed to properly consider

that Mother had “completely denied” them visitation since approximately

September 2015.3 Appellant’s Br. at 23. We disagree. Conflict between the

parent and nonparent is an appropriate consideration when determining

whether grandparent visitation is in a child’s best interests. See e.g., Daugherty v.

Ritter, 646 N.E.2d 66, 68 (Ind. Ct. App. 1995) (“Because the court had before it

evidence of extensive family conflict, it could have reasonably concluded that it

was not in [child’s] best interest for the Daughertys to exercise visitation with

her.”), adopted, 652 N.E.2d 502 (Ind. 1995).

3
Grandparents’ additional contention that the trial court “ignored” their strong bond with A.B. is without
merit as the court repeatedly referred to that strong relationship throughout its order. See, e.g., Appellant’s
App. at 17 (“No party disputes that a strong emotional bond formed between [A.B.] and grandparents during
the first three years of the child’s life.”).

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[18] Moreover, it is clear that the trial court did consider the amount of visitation

Mother wished to provide the Grandparents. The trial court found that Mother

is a fit parent and that she had discontinued grandparent visitation because

Grandparents “may not be willing to comply with reasonable restrictions placed

upon them by Mother with regard to any interaction they may have with

[A.B.].” Appellant’s App. at 23. These findings are supported by the evidence.

When Mother had granted Grandparents visitation in the past, Grandparents

did not always allow Mother to take A.B. back from them when she wished to

do so. Grandparents also refused to cease taking A.B. to their store as Mother

had requested due to what she considered to be inappropriate items sold in the

store. Grandparents enrolled A.B. in a school without Mother’s consent, and

Grandfather continued to visit A.B. at school even after Mother told him not to

do so. Grandfather fought with Ortega and made repeated complaints to DCS

about Mother and/or Ortega, even after DCS investigated and found neglect

allegations were unsubstantiated. Yet, despite Grandparents’ lack of

cooperation with her, Mother testified that she was, in fact, willing to grant

Grandparents some visitation with A.B. in the future, but only if they would

“respect the decision that [she] ma[d]e and the guidelines that can be set down”

by her. Tr. Vol. III at 177.

[19] The above evidence supported the trial court’s findings that:

[t]he wounds created by the decisions of the parties herein need
time to mend; the Court’s forcing a grandparent visitation
schedule upon the parties at this time will not improve their
relationships, and may only further damage said relationships.

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 The Court finds that grandparents have not rebutted the
presumption that the decision made by Mother to limit or deny
their visitation with [A.B.] was made in [A.B.’s] best interest[s].
Grandparents have not demonstrated that court-ordered
visitation is in [A.B.’s] best interest. The Court finds that it is
contrary to the best interests of [A.B.] to grant grandparent’s
petition for grandparent visitation.

Appellant’s App. at 23. The trial court did not commit clear error when it held

that Grandparents failed to rebut the presumption that Mother’s visitation

decision was in A.B.’s best interests and therefore denied their petition for

visitation. Again, Grandparents’ contentions otherwise merely request that we

reweigh the evidence, which we will not do.

Issue Three: Attorney’s Fees

[20] Grandparents challenge the trial court’s order requiring them to pay Mother’s

attorney’s fees in the amount of $21,664.46. We review a decision to award

attorney’s fees 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 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.

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[21] Initially, we note that there appears to be some confusion among the parties as

to the statutory basis for the trial court’s attorney fee order. The trial court

stated that it awarded Mother the attorney’s fees she incurred “in defending

[the] action brought by [Grandparents].” Appellant’s App. at 23-24. The

action the Grandparents brought was a petition to modify custody of A.B.

pursuant to Indiana Code Section 31-17-2-1 through 31-17-2-26. Indiana Code

Section 31-17-7-1 allows a trial court to award reasonable attorney’s fees to a

party maintaining or defending a custody action. Thus, because the trial court

did not award attorney fees under the General Recovery Rule, it was

unnecessary for the court to find that Grandparents’ claim was frivolous,

unreasonable, groundless, or litigated in bad faith. Indiana Code Section 34-52-

1-1. Moreover, Mother is incorrect when she contends that custody actions

under Article 17 are only commenced through divorce or child support matters.

Appellee’s Br. at 16-17. Rather, Indiana Code Section 31-17-2-3(2) specifically

states that a “child custody proceeding” may be commenced under Article 17

by “a person other than a parent.” Therefore, fees can be awarded under

Article 17 in nonparent custody actions such as this one.

[22] Both parties in this case requested an award of their attorney fees. In order to

award attorney fees pursuant to Indiana Code Section 31-17-1-1, “a trial court

must consider the parties’ resources, their economic condition, their ability to

engage in gainful employment and earn adequate income, and any other factors

bearing on the reasonableness of the award.” Montgomery, 59 N.E.3d at 354.

When a trial court “fail[s] to hold an evidentiary hearing in order to consider

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 these issues, [it] abuse[s] its discretion.” Allen, 832 N.E.2d at 1103, citing

Bertholet v. Bertholet, 725 N.E.2d 487 (Ind. Ct. App. 2000) and Barnett v. Barnett,

447 N.E.2d 1172 (Ind. Ct. App. 1984).

[23] Here, the trial court did hold such an evidentiary hearing. During the course of

the hearing, the parties presented evidence of their average annual earnings

from employment, their income from other sources, their debts and the

composition of their households. The evidence showed that Grandparents’

average annual employment earnings were $60,000-$70,000, and Mother’s and

Ortega’s combined annual employment earnings were also in that range.4 Tr.

Vol. II at 123; Tr. Vol. III at 50-51. Grandmother and Mother also each had

student loan debts of similar amounts. Tr. Vol. II at 208; Tr. Vol. III at 127.

However, Grandfather had civil judgments in his favor totaling approximately

$18,000. Tr. Vol. II at 126, 139. Moreover, unlike Grandparents, Mother and

Ortega had children in their household for whom they were financially

responsible. Tr. Vol. III at 49-50, 152-53. Given the evidence of the parties’

respective economic circumstances, the trial court did not abuse its discretion

when it ordered Grandparents to pay Mother’s attorney fees incurred in

defending against their petition to modify custody.

4
We disregard Mother’s assertion that it is “inappropriate” to consider the income of Mother’s husband,
with whom she lives, because he “is not a party to this action,” Appellee’s Br. at 16, since she cites no
supporting authority. Ind. Appellate Rule 46(A)(8) and (B).

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 Conclusion

[24] The trial court did not commit clear error when it denied Grandparents’

petitions to modify custody and for visitation, nor did it abuse its discretion

when it awarded Mother her attorney’s fees.

[25] Affirmed.

Kirsch, J., and Brown, J., concur.

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