Ashley M. Obando (Coffey) v. Michael A. Coffey (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 15, 2019
• Docket: 19A-DC-534
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 15 2019, 7:58 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 APPELLANT ATTORNEY FOR APPELLEE Cassandra A. Kruse Alexandra M. Curlin Emswiller, Williams, Noland & Curlin & Clay Law Assn. of Attys. Clarke, LLC Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ashley M. Obando (Coffey), July 15, 2019 Appellant-Petitioner, Court of Appeals Case No. 19A-DC-534 v. Appeal from the Marion Superior Court Michael A. Coffey, The Honorable James A. Joven, Appellee-Respondent Judge The Honorable Kimberly D. Mattingly, Magistrate Trial Court Cause No. 49D13-1709-DC-33633

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019 Page 1 of 5 [1] Ashley Obando (Mother) and Michael Coffey (Father) share custody of their

two children. Mother appeals the trial court’s order denying her petition to

modify custody, arguing that the trial court erred by finding that Mother did not

meet her burden of showing a substantial and continuing change in

circumstances to warrant a custody modification. Mother also argues that the

trial court erred in its allocation of expenses for a custody and parenting time

evaluation and by not finding Father in contempt of court. However, Mother

failed to submit a complete record on appeal, and as a result, we cannot say that

the trial court erred in its findings or in its allocation of expenses. Accordingly,

we affirm.

[2] In 2013, Mother and Father dissolved their marriage in Hawaii. The parties

were awarded joint legal custody and Father was awarded physical custody. In

2015, Mother filed a petition to modify custody in Missouri; she was awarded

temporary physical custody of the children while Father was deployed on active

duty with the Marines Corps. At some point, Mother moved to Indiana.

Father returned from deployment and resides in North Carolina, where he is

stationed. In 2017, this matter was transferred to Indiana under the Uniform

Child Custody Jurisdiction and Enforcement Act.1

[3] On October 24, 2017, the trial court ordered Mother and Father to undergo a

custody and parenting time evaluation with a psychologist; the trial court

1 Ind. Code ch. 31-21-1.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019 Page 2 of 5 ordered Mother to pay the psychologist’s fees. On November 30, 2017, Mother

filed an emergency motion for temporary modification of custody and

parenting time and motion for rule to show cause. On February 5, 2018,

Mother filed a motion for rule to show cause and to compel regarding Father’s

compliance with the custody and parenting time evaluation. The following

day, Father filed a motion to reconsider, requesting that the trial court order

Mother to pay his travel costs associated with the evaluation and a motion in

response to Mother’s motion for rule to show cause and compel. On February

12, 2018, the trial court ordered Mother to pay for Father’s travel costs

associated with the evaluation. A hearing took place on August 27 and

November 5, 2018. On March 13, 2019, the trial court denied Mother’s

petition to modify custody.2 Mother now appeals.

[4] Father argues that Mother has waived her right to appellate review by failing to

submit the transcript of the hearings. Although we strongly prefer to decide a

custody case on the merits, here, we are compelled to agree that, because of the

incomplete record, we are unable to review the issues on the merits and they

are, therefore, waived.

[5] Indiana Appellate Rule 9 governs the initiation of an appeal. Rule 9(F)(5)

mandates a notice of an appeal to include a request for a transcript.

Specifically, the rule requires

2 The record on appeal includes only the e-notice of the order, not the official order.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019 Page 3 of 5 [a] designation of all portions of the Transcript necessary to present fairly and decide the issues on appeal. If the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.

App. R. 9(F)(5) (emphasis added).

[6] Mother’s arguments depend upon the evidence presented during the hearing,

yet she did not include the transcript of the hearing in the appellate record.3

Our Supreme Court has stated that “failure to include a transcript works a

waiver of any specifications of error which depend upon the evidence.” See In

re Walker, 665 N.E.2d 586, 588 (Ind. 1996). Further, “the dismissal of an

appeal is proper where an appellant fails to file a record demonstrating any of

the errors alleged in the appeal.” Id. at 589 n.2. We have no choice but to find

that Mother has waived these issues on appeal.

[7] We urge Mother’s counsel to review the appellant’s burden on appeal. In her

reply brief, Mother asserts several times that Father was able to request a

transcript and that the appellate rules “do not place a singular requirement that

an appellant request an entire transcript as a prerequisite to bring issues before

the Court on appeal.” Reply Br. p. 5. But Mother, not Father, is the appellant

3 On June 4, 2019, after the filing of the briefs, the Clerk of this Court requested the transcript be submitted within ten business days. Mother did not submit a transcript. Additionally, Mother relies on the fact that she included her exhibits in the record on appeal, but without the transcript of the hearing, we cannot contextualize these exhibits within this case.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019 Page 4 of 5 in this case, and “[i]t is a cardinal rule of appellate review that the appellant

bears the burden of showing reversible error by the record, as all presumptions

are in favor of the trial court’s judgment.” Marion-Adams Sch. Corp. v. Boone,

840 N.E.2d 462, 468 (Ind. Ct. App. 2006) (emphasis added). By not including

the transcript in the appellate record, Mother is unable to meet her burden of

showing reversible error in the record. Accordingly, we cannot find that the

trial court committed any error.

[8] The judgment of the trial court is affirmed.

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019 Page 5 of 5