Amanda Wills v. Jeremy Gregory

92 N.E.3d 1133
CourtIndiana Court of Appeals
DecidedJanuary 25, 2018
Docket50A03-1706-JP-1477
StatusPublished
Cited by3 cases

This text of 92 N.E.3d 1133 (Amanda Wills v. Jeremy Gregory) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amanda Wills v. Jeremy Gregory, 92 N.E.3d 1133 (Ind. Ct. App. 2018).

Opinions

Mathias, Judge.

[1] Jeremy Gregory ("Father") petitioned the trial court for a modification of physical custody of his daughter after her mother Amanda Wills ("Mother") suffered a stroke. The court found that Mother's stroke was a substantial and continuing change in circumstances and that modification was in the daughter's best interests. On appeal, Mother concedes that her stroke was a substantial and continuing change but argues that the court erred when it found that the modification was in her daughter's best interests.

[2] We affirm.

Facts and Procedural History1

[3] The facts most favorable to the trial court's judgment show that Mother gave birth to a daughter, C.G. ("Child"), in April 2009. Father established paternity in March 2010 and entered into an agreed paternity order with Mother. The order *1135granted Mother primary physical custody of Child, with Father exercising parenting time every other weekend and on Wednesdays from after school until 7:00 p.m. Mother and Father shared joint legal custody of Child. Mother has lived alone with Child and has been Child's primary caregiver since birth. Since 2011, Father has lived with his fiancée Valerie Lozano ("Valerie"), their son, and his soon-to-be step-son.

[4] In October 2013, Mother suffered a stroke and was hospitalized for a little over two months. During this time, Child stayed primarily with Mother's mother, Linda Piper ("Linda"). Father did not learn of Mother's stroke until a month after it happened, and he was denied the right to take care of Child during Mother's hospitalization by Linda, except for his normal every other weekend and Wednesday evenings. Mother was unable to care for Child on her own for five to six months.

[5] As a result of the stroke, Mother has "some disabilities," including aphasia and apraxia. Tr. p. 9-10. Aphasia"affects [Mother's] ability to express herself." Id. at 210. And apraxia impacts her motor programming. "So when [Mother] wants to say a word, the brain sends a signal, but it sends the incorrect signal. So she either gets completely blocked on the word and can't get anything out or she will misfire and produce the wrong sound for a word." Id. at 211.

[6] Since Mother's stroke, Father's communications concerning Child have taken place primarily through Linda and Mother's sister. Throughout 2014 and 2015, Mother and Father had several disagreements about scheduling and which version of the Indiana Parenting Time Guidelines should be followed. Father's frustrations resulted in a meeting in July 2015 between Father, Mother, Valerie, Linda, and Mother's sister and brother-in-law. After the meeting, the visitation issues were resolved for "about three months," only to continue again. Id. at 57. A second meeting took place between Father, Mother, Valerie and Linda; however, it did not result in any meaningful changes.

[7] On April 13, 2016, Father signed a petition to modify physical custody.2 Father's petition asserted "that there have been substantial and continuing changes of circumstances prompting a modification of custody of [Child]." Appellee's App. p. 4. On April 18, Mother filed a petition asking the trial court to clarify parenting time and which set of the Indiana Parenting Time Guidelines the parents should follow. The trial court set an evidentiary hearing on the motions for December 8.

[8] During the hearing, the trial court heard testimony from Mother, Father, Valerie, Linda, Linda's friend on behalf of Mother, Mother's co-worker, and Jennifer Essig ("Essig")-the clinical supervisor who oversaw Mother's speech therapy after the stroke. After the hearing, the trial court granted Father's petition and awarded him primary physical custody of Child. The court found that a substantial and continuing change in circumstances had occurred, warranting modification. The court stated, "Specifically, the Mother suffered a stroke approximately three years ago impacting her physical health-including her ability to communicate. As a result, the Mother's ability to serve as the primary physical custodian has been adversely *1136impacted." Appellant's App. p. 9. The court also found that it was in Child's best interests for Father to have primary physical custody. Mother was granted parenting time according to the 2017 Indiana Parenting Time Guidelines, and Mother and Father would continue to share legal custody.

[9] Mother now appeals.

Discussion and Decision

[10] Mother contends that the trial court erred when it granted Father primary physical custody of Child. We review custody modifications for an abuse of discretion, granting latitude and deference to the trial court. Kirk v. Kirk , 770 N.E.2d 304, 307 (Ind. 2002). "We set aside judgments only when they are clearly erroneous, and will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment." Id. (citations omitted). There is a well-established preference in Indiana for granting significant latitude and deference to our trial judges in family law matters. Steele-Giri v. Steele , 51 N.E.3d 119, 124 (Ind. 2016). Appellate courts "are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence." Kirk , 770 N.E.2d at 307. Therefore, on appeal we "are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment." Best v. Best , 941 N.E.2d 499, 502 (Ind. 2011).

[11] Indiana Code section 31-14-13-6 provides that a trial court may not modify an existing custody order unless (1) the modification is in the best interests of the child, and (2) there has been a substantial change in one or more statutory factors that are outlined in Indiana Code section 31-17-2-8. The factors a trial court is to consider under Section 31-17-2-8 are:

(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

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Cite This Page — Counsel Stack

Bluebook (online)
92 N.E.3d 1133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amanda-wills-v-jeremy-gregory-indctapp-2018.