Best v. Best

941 N.E.2d 499, 2011 Ind. LEXIS 67, 2011 WL 397773
CourtIndiana Supreme Court
DecidedFebruary 8, 2011
Docket06S05-1102-CV-73
StatusPublished
Cited by193 cases

This text of 941 N.E.2d 499 (Best v. Best) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Best v. Best, 941 N.E.2d 499, 2011 Ind. LEXIS 67, 2011 WL 397773 (Ind. 2011).

Opinion

DICKSON, Justice.

In its resolution of intensely litigated post-dissolution motions on various issues primarily related to the custody of the parties' two children, a son, A.B., and a daughter, M.B., the trial court granted the father sole legal custody and primary physical custody of both A.B. and M.B. The mother appealed the decisions related to M.B., and the Court of Appeals affirmed in part and reversed in part in a memorandum decision. We now grant transfer and affirm the trial court's modification of physical custody.

The parties' 2004 dissolution decree incorporated their property settlement agreement. In February 2005, the court approved the parties' agreement concerning child custody, support, and parenting time. Subsequent disputes regarding custody, parenting time, and support were resolved by a court-approved agreement in April 2007 following mediation. Four months later, the father filed a petition for a contempt citation alleging that the mother failed to enroll their daughter in public school pursuant to the court-approved agreement. In responding, the mother petitioned for modification. The trial court found the mother in contempt, ordered that she enroll the daughter in public school, and denied the mother's modification request. Asserting the mother's additional non-compliance with the agreement, the father petitioned for custody modification in September 2008. The mother responded with her own modification petition, and the father filed an emergency petition for contempt on grounds that the mother was denying him parenting time with the son. An emergency hearing was scheduled, and the day before the hearing, the mother filed her own emergency petition regarding communications with the children and for fiemporary custody of the son. Following a contested hearing, the trial court found the mother in contempt and ordered her to return the son to the father or spend five days in jail.

The judgment on appeal is that of Special Judge Rebecea McClure following four days of testimony on six motions seeking modification of legal and physical custody, and raising ancillary issues including contempt, parenting coordinator recommendations, and attorney fees related to discovery disputes. Judge McClure has had extensive interaction with the parties since November 7, 2007 when she became the special judge in this matter. Judge McClure has become very familiar with the parties, their situation, and their inability to cooperate with each other. Her decision in this matter consists of a 46-page judgment that includes 184 detailed items denominated as findings of fact and 37 additional items denominated as conclusions of law. The trial court judgment granted the father's petition to modify and awarded him sole legal custody and primary physical custody of both A.B. and M.B., denied the mother's petitions for modification and contempt, and found the mother in contempt for her failure to pay attorney fees.

In its review of the mother's appeal, the Court of Appeals restated the issues presented as follows: (1) whether the trial court erred in refusing the mother's request to order a custody evaluation; (2) whether the trial court properly modified *502 legal custody of M.B.; (8) whether the trial court properly modified physical custody of M.B.; and (4) whether the trial court properly found the mother in contempt for failure to pay previously-awarded attorney fees for the father. The court rejected the first two claims, and as to the fourth issue, it reversed the finding of contempt but affirmed the trial court's decision to reduce to judgment the unpaid attorney fee obligation. With respect to the first, second, and fourth determinations, we summarily affirm the decision of the Court of Appeals. 1 We grant transfer solely to address the mother's challenge to the modification of M.B.'s physical custody.

In seeking to overturn the trial court's decision to modify M.B.'s physical custody from being equally divided between the parents to being fully with the father, the mother asserts two claims: (1) the trial court failed to find a change of cireum-stances in any of the statutory factors, and it failed to find the modification to be in M.B.'s best interest; and (2) the trial court erred by denying her petition for primary physical custody of M.B., arguing that the trial court's decision is contrary to the logic and effect of the evidence.

When reviewing judgments with findings of fact and conclusions of law, Indiana's appellate courts "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." Ind. Trial Rule 52(A). Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment. See Ind. Dep't. of Child Servs. v. LaPorte Circuit Court (In re T.S.), 906 N.E.2d 801, 804 (Ind.2009); J.I. v. J.H. (In re KI), 903 N.E.2d 453, 457 (Ind.2009); Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind.2002). "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.1997) (quoting Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind.1994)). Appellate 'deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.

The mother first challenges the trial court's modification of physical custody on the ground that such ruling lacks two erucial supporting findings: '(a) a change of cireumstances in any of the statutory factors and (b) that the modification is in M.B.'s best interests. A court may modify a -child eustody order if it finds that the modification is in the best interests of the child and that there has been a substantial change in one or more designated statutory factors. 2 Ind.Code § 31-17-2-21. *503 Thus we must reject this claim by the mother if the trial court's modification of physical custody is supported by findings of (a) a substantial change in at least one of the statutory factors, and (b) that modification was in M.B.'s best interests.

The court explicitly noted, "(allthough they disagree as to the facts upon which the Court should rely in modifying eusto-dy, the parties agree that there has been a substantial and continuing change in circumstance in one or more of the above cited factors and that it is in the best interest of the children that custody be modified." ' Appellant's App'x at 97-98.

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Bluebook (online)
941 N.E.2d 499, 2011 Ind. LEXIS 67, 2011 WL 397773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/best-v-best-ind-2011.