Angel Hill v. Bradley S. Bergman (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 14, 2016
• Docket: 41A01-1510-DR-1730
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 14 2016, 8:35 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 Casey D. Cloyd Jennifer D. Wilson Reagan Indianapolis, Indiana Wilson & Wilson Greenwood, Indiana

IN THE COURT OF APPEALS OF INDIANA

Angel Hill, September 14, 2016 Appellant-Respondent, Court of Appeals Case No. 41A01-1510-DR-1730 v. Appeal from the Johnson Circuit Court Bradley S. Bergman, The Honorable Michael R. Auger, Appellee-Petitioner. Judge pro tem Trial Court Cause No. 41C01-0407-DR-266

Pyle, Judge.

Statement of the Case [1] Angel Hill (“Mother”) appeals the trial court’s order granting her former

husband, Bradley S. Bergman’s (“Father”), motion to modify custody of their

Court of Appeals of Indiana | Memorandum Decision 41A01-1510-DR-1730 | September 14, 2016 Page 1 of 9 two minor children. On appeal, she argues that the trial court erred when it

modified custody in favor of Father because the evidence did not support its

findings, and the findings did not support its conclusion that there had been a

substantial change in the parents’ circumstances. Because we conclude that the

evidence did support the trial court’s findings, and its findings did support its

conclusion, we affirm.

Issue Whether the trial court erred when it granted Father’s motion to modify custody of his minor children.

Facts [2] Mother and Father (collectively, “the parents”) married and had two children

together—S.B., born in July 1998, and B.B., born in December 2002

(collectively, “the children”). On June 17, 2004, the parents dissolved their

marriage and agreed that Mother would have primary physical custody of the

two minor children.

[3] Over ten years later, on March 5, 2014, Mother, filed a pro se notice of her

intent to relocate with the children from Whiteland, Indiana to Florida. At that

point, S.B. was fifteen years old and B.B. was eleven years old. Father objected

to the relocation, and the two entered into mediation. Through mediation, they

resolved the issue and filed a mediated agreed entry (“Agreed Entry”) with the

trial court on July 25, 2014. The trial court approved the Agreed Entry on

August 20, 2014. In the Agreed Entry, Mother agreed that she would not file

any further relocation requests before S.B. graduated from high school. This

Court of Appeals of Indiana | Memorandum Decision 41A01-1510-DR-1730 | September 14, 2016 Page 2 of 9 condition was dependent upon whether Mother or her significant other were

able to find any employment without relocating. Mother and Father also

agreed that they would “evenly divide all school expenses, including, but not

limited to, book fees and school clothing.” (App. 21).

[4] In spite of her agreement that she would not relocate, Mother moved to

Franklin, Indiana within two weeks of entering into the Agreed Entry and

failed to notify Father of the relocation. She lived there until November 2014.

While in Franklin, Mother enrolled B.B. in a Franklin public school and placed

S.B. in an online school. For at least a week during the school semester, S.B.

had to live with Mother’s friend because she did not have adequate internet

access at home for her online school. She also failed five out of her seven

classes that semester.

[5] In November 2014, Mother moved with the children to Martinsville, Indiana,

again failing to notify Father of the move. Father discovered that Mother had

moved with the children through Facebook. In Martinsville, Mother enrolled

both of the children in public schools, and S.B. began to get better grades in her

classes again. She received “‘As’ and ‘Bs’” and B.B. received “‘Cs and Ds.’”

(Tr. 26).

[6] On December 26, 2014, Father filed a motion to modify custody, parenting

time, and support (“custody motion”), as well as a request for a mediation

referral order. The trial court issued the referral for mediation, and the parents

entered into mediation again to discuss the matters Father had raised in his

Court of Appeals of Indiana | Memorandum Decision 41A01-1510-DR-1730 | September 14, 2016 Page 3 of 9 custody motion. This time, though, they could not resolve their disagreements

through mediation. As a result, the trial court held a hearing on Father’s

custody motion on September 1, 2015.

[7] At the custody modification hearing, Father testified to the above facts,

including that Mother had relocated twice without notifying him. He also

submitted evidence that he had spent $354.60 on school supplies for the

children. He testified that Mother had not paid for half of the school supplies as

required by the Agreed Entry.

[8] Also at the hearing, Father testified that he had been in Mother’s apartment the

previous Sunday and had observed that “[i]t was dirty and there [were] stains

on the floor and dirty clothes on the furniture.” (Tr. 12). He also said that it

“smelled like dog.” (Tr. 12). In contrast, he testified that he lived with his

mother, whose house was “immaculate.” (Tr. 13). He said that the children

had a room that they shared there.

[9] Finally, Father also testified that Mother had been posting pictures and

statements on Facebook that he believed were inappropriate because Mother

was friends on Facebook with S.B., who was only seventeen years old at that

point. He introduced two pictures from Mother’s Facebook profile as evidence.

In one picture, Mother appeared to be in a sex shop with her sister, making

lewd gestures with the merchandise. In another, Mother was “modeling a

bikini.” (Tr. 17).

Court of Appeals of Indiana | Memorandum Decision 41A01-1510-DR-1730 | September 14, 2016 Page 4 of 9 [10] Mother appeared pro se at the hearing. She testified that she had failed to

provide Father with notice of her relocations to Franklin and Martinsville

because she thought she was only required to give him notice if she moved to

Florida. She said that, even though she had not filed legal notice of her

relocation, she had orally informed Father of the move, and he had not missed

any of his parenting time as a result.

[11] At the conclusion of the hearing, the trial court took the matter under

advisement. Then, on September 24, 2015, the trial court granted Father’s

custody motion and awarded him primary physical custody. In its order, the

trial court found that there had been “a substantial and continuing change in

circumstances warranting a modification of [its] orders regarding custody.”

(App. 13). Specifically, it noted that Mother had relocated twice after she had

agreed not to do so and had failed both times to provide Father with notice of

the relocation. The court also found that:

Additionally, the evidence presented at the hearing on Father’s petition further revealed the general pattern of instability in Mother’s life. On the contrary, the evidence established that Father consistently resided in the same residence, that the children had their own room at Father’s house, that Father had the children consistently nearly every weekend as well as nearly all summer.

(App. 13). Based on these factors, the trial court concluded that it was in the

children’s best interests that Father be awarded primary physical custody and

that Mother be awarded parenting time in accordance with the Indiana

Parenting Time Guidelines. Mother now appeals.

Court of Appeals of Indiana | Memorandum Decision 41A01-1510-DR-1730 | September 14, 2016 Page 5 of 9 Decision [12] Mother argues that the trial court erred in modifying custody of the children.

Specifically, she contends that: (1) there was no evidence that the trial court

considered the statutory factors it was required to consider prior to modifying

custody; (2) there was no evidence that her actions had a negative impact on the

children; and (3) the findings of fact that the trial court cited in support of its

conclusion that custody should be modified were isolated instances of

misconduct, which may not support a modification of custody. We will

address each of these arguments in turn.

[13] Under INDIANA CODE § 31-17-2-21, a trial court may not modify a child

custody order unless:

(1) the modification is in the best interests of the child; and

(2) there is a substantial change in one (1) or more of the factors that the court may consider . . . .

The relevant factors the court may consider in making its determination 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

(C) any other person who may significantly affect the Court of Appeals of Indiana | Memorandum Decision 41A01-1510-DR-1730 | September 14, 2016 Page 6 of 9 child’s best interests.

(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.

(8) Evidence that a child has been cared for by a de facto custodian . . . .

I.C. § 31-17-2-8.

[14] Where, as here, the trial court entered findings of fact and conclusions of law,

we apply a two-tiered standard of review.1 Heagy v. Kean, 864 N.E.2d 383, 388

(Ind. Ct. App. 2007), trans. denied. We first determine whether the evidence

supports the trial court’s findings of fact and then determine whether the

findings support the conclusions and judgment. Id. We may reverse the

judgment only if there is no evidence to support the findings or no findings to

support the judgment. Id. When conducting our review, we neither reweigh

the evidence nor reassess the credibility of the witnesses. Id. In addition, we

1 Notably, Father did not include this standard of review in his Appellee’s Brief. We remind Father’s attorney that, pursuant to Appellate Rule (A)(8), the argument for each party must include, “for each issue, a concise statement of the applicable standard of review[.]”

Court of Appeals of Indiana | Memorandum Decision 41A01-1510-DR-1730 | September 14, 2016 Page 7 of 9 view the evidence and inferences therefrom in the light most favorable to the

judgment. Id.

[15] Mother first argues that the trial court erred in modifying custody because there

was no evidence that the court considered the statutory factors listed in

INDIANA CODE § 31-17-2-8. However, we addressed the same issue in Kanach

v. Rogers, 742 N.E.2d 987, 989 (Ind. Ct. App. 2001), and held that, while a trial

court must consider the statutory factors and find that there has been a

substantial change, it need not enumerate the factors or specify which of the

factors has substantially changed. Here, there was evidence that the trial court

considered at least one of the factors—the children’s adjustment to their

home—because it found that Mother had relocated twice even though she had

agreed not to do so in the Agreed Entry. The trial court also found that

Mother’s housing was generally unstable compared to Father’s. Accordingly,

we do not find it dispositive that the trial court did not explicitly cite to

INDIANA CODE § 31-17-2-8.

[16] Next, Mother contends that there was no evidence that any of her actions had a

negative impact on the children. However, she does not cite any authority for

her proposition that a custody order must have a negative impact on a child

before the trial court may modify the custody arrangement. To the contrary,

our standard is to determine what is in “best interests of the child[ren].” I.C. §

31-17-2-21. This standard applies even in cases where neither parent has had a

negative impact on his or her children. See id.

Court of Appeals of Indiana | Memorandum Decision 41A01-1510-DR-1730 | September 14, 2016 Page 8 of 9 [17] Finally, Mother asserts that the trial court improperly modified custody because

her actions constituted only “isolated instances of misconduct.” (Mother’s Br.

14). As evidence that her misconduct was “isolated,” she notes that she moved

the children only twice, that S.B.’s grades had improved in her new Martinsville

public school prior to the hearing, and that Father’s testimony that her house

was not clean was based on only one visit to her house. She cites to Wallin v.

Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App. 1996), in support of her argument

that such acts were improper to support a custody modification. There, we held

that a noncustodial parent must show more than isolated acts of misconduct by

the custodial parent to warrant a modification of custody. Id.

[18] Here, however, Father has shown more than isolated acts of misconduct. We

conclude that Mother’s argument is merely an invitation to reweigh the

evidence, which we will not do. Heagy, 864 N.E.2d at 388. The trial court

specifically found that her conduct “revealed the general pattern of instability,”

(App. 13), and it is not our place to re-characterize the evidence. See id.

Accordingly, we affirm the trial court’s order granting Father’s motion to

modify custody.

[19] Affirmed.

Kirsch, J., and Riley, J., concur.

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