MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 24 2019, 9:12 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 Zachary J. Stock Dorothy Ferguson Indianapolis, Indiana Anderson, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dennis Edward Roberts, Jr., October 24, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-DR-941 v. Appeal from the Madison Circuit Court Olivia L. Roberts, The Honorable Appellee-Petitioner. G. George Pancol, Judge The Honorable Kevin M. Eads, Magistrate Trial Court Cause No. 48C02-1412-DR-674
Altice, Judge.
Case Summary [1] Olivia L. Roberts (Mother) filed a motion to modify custody, seeking physical
custody of the parties’ three minor children. The trial court granted her motion, Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 1 of 15 and Dennis E. Roberts, Jr. (Father) appeals, asserting that Mother failed to
show a substantial change in circumstances as required to modify custody.
[2] We affirm.
Facts & Procedural History [3] Mother and Father married in March 2008. They have three children together:
D.R. (born in May 2008), V.R. (born in October 2009), and R.R. (born in
February 2013) (collectively, the Children). Mother filed a petition for
dissolution in December 2014, seeking, among other things, custody of the
Children. The trial court’s April 2015 provisional order granted physical
custody to Mother with Father having parenting time pursuant to Indiana
Parenting Time Guidelines.
[4] At some point in time that is not clear in the record, Mother entered into a
relationship with a man who abused or harmed one or more of the Children.
As a result, a Child in Need of Services (CHINS) action was opened and the
Children were placed with Father while the dissolution was pending.
Following a final hearing in the dissolution case, where the parties each
appeared in person and with counsel, the trial court issued a dissolution order
on March 21, 2016, placing custody of the Children with Father 1 and directing
that Mother have “no less than the parenting time guidelines, once the
1 The dissolution order states, “The custody of said children is placed with the Respondent Father” and does not distinguish between legal and physical custody. Appellant’s Appendix Vol. II at 26.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 2 of 15 restrictions of the CHINS case are lifted.” Appellant’s Appendix Vol. II at 26.
Mother was also ordered to pay weekly child support. The Children were ages
seven, six, and three at the time that the dissolution became final.
[5] In November 2016, Mother filed a verified motion to modify custody, seeking
sole legal and physical custody of the Children and asserting that there had been
a substantial change in circumstances warranting modification. Id. at 29. After
a number of continuances, the matter came on for evidentiary hearing on
November 13, 2018, which was completed at a second hearing on January 29,
2019.
[6] Mother testified that, when the parties’ marriage was dissolved in March 2016,
the CHINS action was pending and she was exercising supervised parenting
time, and when the CHINS action was dismissed sometime during 2016, her
parenting time changed to unsupervised every other weekend and on
Wednesdays. According to Mother, she has provided all or almost all of the
transportation to and from Father’s residence for her parenting time, which at
the time of the hearing was an hour each way.
[7] Mother expressed concern that Father “bounces” with the Children from
residence to residence – having lived with three different women, and each time
one relationship would end, he would temporarily move in with his family
before moving in with the next woman – and that he and the three Children
currently were living in a house with his girlfriend and her three minor children.
Transcript at 37. Mother testified that when she picks up the Children for
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 3 of 15 parenting time, they sometimes smell like cigarette smoke, regularly have body
odor, and often have a cough or some ailment, noting that one or more of the
Children has asthma and uses an inhaler. Mother suspected that the respiratory
problems were made worse by Father’s smoking. Mother testified that Father
does not advise her when he takes the Children to the doctor, and she does not
know their doctor’s name. Mother stated that on several occasions she went to
the Children’s elementary school so she could see their school records, but was
told that she did not have access to the information and/or they did not have
her on record as being a parent. Mother testified that Father will show her the
Children’s report cards when she is at his house for pick-up, but she does not
get copies. While one or two of the Children have an IEP, Mother said that she
had never been invited to an IEP conference. Mother said that she generally
did not get updates from Father about how the children were doing in school,
although she had concerns that they were not performing well.
[8] Mother also testified that she has not been allowed to have the Children on
holidays and that she has to agree to what parenting time Father offers because,
she explained, “any other way I won’t see them.” Transcript at 35. She also
stated that Father does not advise or invite her to the Children’s extracurricular
events, although sometimes she is aware through the Children or their
grandfather. She could not remember the last birthday that she spent with her
Children. Mother testified that she was living in a two-bedroom apartment in
Muncie and was working full-time, 10:00 a.m. to 7:00 p.m., for Walmart,
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 4 of 15 where she had been employed for three years. Mother stated that she was
current on child support.
[9] Mother also called as a witness her mother (Grandmother), who testified that
Mother always picks up and drops off the Children for visitations, that Father
has not done so in two or three years, and that if Mother does not transport the
Children, Mother “probably won’t get to see them.” Id. at 24. Grandmother
also testified that the Children often have body odor and are wearing clothes
that do not fit. Grandmother said that neither she nor Mother get to see the
Children on holidays, as Father “has had them ever [sic] holiday,” and they do
not get to see the Children “on their exact birthday” so they plan a party for
another day. Id. at 25, 31.
[10] Father presented the telephonic testimony of Jacob White, who was the
Children’s elementary school principal in New Castle. White testified that the
Children were well-liked students, did not exhibit any behavioral problems,
were appropriately dressed, and did not have what he considered to be
attendance problems, although he acknowledged that as of the date of the
November 13 hearing, D.R. (4th grade) had missed 6 and one-half days, V.R.
(3rd grade) had missed eight, and R.R. (kindergarten) had missed five. When
asked how the Children were doing in school, White said that D.R. was “doing
well,” has an IEP, and works hard. Id. at 10. When asked about how V.R. is
doing, White said she is “the same” as D.R., giving her best effort, and is
“pushing through” some issues with reading and is “doing a very nice job.” Id.
at 11. White was not aware as to whether Mother had contacted the school for
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 5 of 15 records. He testified that in his opinion any change in schools would be
disruptive for the Children.
[11] Because there was not sufficient time to complete the hearing, the matter was
continued, but before recessing, the court asked Father, under oath, some
questions, and then issued an interim order directing, among other things, that:
(1) Father make sure that Mother is listed on the school records “so that [] there
is no question that she is [the] Mother” and is able to access information, (2)
pursuant to the Parenting Time Guidelines, the upcoming Thanksgiving would
be Mother’s holiday with the Children, (3) the parties share responsibility for
transportation for parenting time, with Mother picking up at start of the visit
and Father picking up at the end of the visit, (4) Father take “further lengths to
ins[u]late the Children” from his smoking, and (5) the parties communicate or
confirm their parenting time arrangements by text message and preserve the
messages for availability as evidence in a hearing. Id. at 73, 75.
[12] The matter resumed on January 29, 2019, at which time Mother called Father
to testify. Father stated that in the approximately four years that he had had
custody of the Children, he had moved three times. As of the time of the
hearing, Father was living in New Castle in a two-bedroom residence with the
Children, his fiancée, Brandy, and her three children. “All the girls” slept in
one bedroom, he and Brandy slept in the other, and “the boys” slept in the front
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 6 of 15 room. 2 Id. at 86. At the time of the first hearing in November 2018, Father was
working at Pizza King, but as of the January 2019 hearing, Father was
employed at a company called KVK, working 6:00 a.m. to 6:00 p.m.,
alternating 36 and 48-hour weeks and earning $11.25 per hour. He said that
Brandy was not employed outside the home. Father did not have a working
cell phone of his own but was borrowing one from his father.
[13] Father acknowledged that at no time since having been awarded custody of the
Children had he possessed a driver’s license and that in September 2018 he was
charged with Class C misdemeanor driving without ever having received a
license. Father acknowledged that D.R. had some poor grades, but explained
that D.R. had been diagnosed previously with some characteristics of autism –
a diagnosis of which Mother indicated she was not aware – and was doing his
best. Father also acknowledged that V.R. currently had failing grades in
reading, science, and math. When asked if he was aware that, after the last
hearing, Mother went to the elementary school and was still not able to see the
Children’s records, Father said that he was not aware. He explained that,
during the time of the CHINS proceeding there was a block put in place
preventing Mother access, but when the CHINS proceeding was over, he called
the schools to lift the block, so he “was not aware [that] there was anything on
there blocking her” and “didn’t know that was still on there.” Id. at 109-10. He
2 Father and Mother have two sons and a daughter, but the gender(s) and ages of Brandy’s three children are not clear from the record.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 7 of 15 continued, “[I]f there is still a problem . . . I will go in first thing . . . Friday,”
his next day off work, and “take care of that.” Id. at 108-09.
[14] With regard to smoking, Father estimated that he smoked about a pack of
cigarettes per day but was attempting to quit and using a vape pen, which he
believed was helping. As to the Children’s medical records and issues, Father
acknowledged that he had not informed Mother of the Children’s medical
appointments – noting that “[Mother] hasn’t asked either” – but stated that he
had told her about any “major issue” with the Children’s health. Id. at 87-88.
With regard to the lack of a driver’s license, Father stated that he had possessed
a license some years ago in Virginia, had paid all outstanding fines associated
with his pending charge, and was going to take the test within the month to
obtain a license. Father testified to various activities that Children were
involved in, including D.R. playing basketball through the Salvation Army,
V.R. playing softball, and R.R. soon to be enrolled in karate. All three were
involved in 4-H activities.
[15] After taking the matter under advisement, the trial court issued a custody order
on February 4, 2019, ordering joint legal custody with primary physical custody
with Mother and Father having parenting time as the parties agree but not less
than that provided by the Parenting Time Guidelines, with transportation to be
shared between the parties. The court identified factors that it considered in
reaching its decision:
The court finds that each parent has certain challenges. The court has been very favorably impressed with Father’s steps to
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 8 of 15 address his smoking, as smoking was a complicating factor for the [C]hildren’s asthma. However, the [C]hildren’s grades, multiple homes over the past three years, the crowded condition of their current home, hygiene issues, and the difficulties in Mother having had appropriate access to school information and parenting time difficulties are factors in the court’s decision.
Appellant’s Appendix Vol. II at 47.
[16] Four days later, Father filed a Motion to Correct Error, asserting that the
February 4 order, which “purported to” grant joint legal custody and primary
physical custody to Mother, was erroneous in two respects: (1) it was invalid
because it was signed only by the magistrate and not approved by the judge,
and (2) it did not include any finding of a substantial change in circumstances
that would warrant modification of custody. Id. at 51.
[17] The trial court held a hearing on Father’s motion on March 26. 3 The court
began the hearing by apologizing for the February 4 order, which it
characterized as being “very unartful” and lacking the language customary for
custody modifications regarding a change in circumstances, but the court
emphasized that the faults in the order “were not indicative of the thought that
went into the decision,” assuring the parties that it had given the decision “very
careful thought” and had reviewed its notes from the two days of hearings when
3 The trial court also held a hearing on the motion to correct error on March 7, after which, on March 11, it approved the magistrate’s February 4 order, rendering moot the issue concerning the validity of the order. The trial court referred the remaining motion to correct error issue to the magistrate for consideration, which matter was heard on March 26.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 9 of 15 reaching a decision. Transcript at 157-58, 168. Father’s counsel urged that the
way to correct the order was to have a hearing for the limited purpose of
determining what the substantial change was (if any), whether there was
evidence presented on it, and how any alleged change relates to the factors
outlined in Ind. Code § 31-17-2-8 that the court is to consider. Mother’s
counsel argued that Mother did not need to present evidence of “this is how it
was and this is how it is,” and, rather, she “just need[ed] to present evidence . . .
that the condition of the kids today . . . with the other parent are no longer
serving the children’s best interest[,]” and that the trial court could draw
inferences of the change. Id. at 163. Mother maintained that, in this case,
evidence of change was presented in the form of the Children’s grades, poor
hygiene, and having to move to multiple homes while in Father’s care, as well
as Father’s lack of a driver’s license and appearing “almost resistant” to allow
Mother access to school records or cooperating with parenting time. Id. at 163-
64. Father urged that there must be evidence of a change, not just of current
circumstances or indication that there are some things that Father could do
better.
[18] On March 27, 2019, the trial court issued a revised custody order that included
“corrected findings.” Appellant’s Appendix Vol. II at 13. The court observed that
while neither party had requested specific findings, Father’s motion to correct
error posed the question as to “what substantial change has occurred in any of
the factors listed under I.C. 31-17-2-8,” and, in response to that, the court
stated, in part:
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 10 of 15 The court did conclude, and does find, that there has been a substantial and continuing change in circumstances which renders it in the [C]hildren’s best interest that physical custody be with Mother. Again, as no specific findings of fact were ever requested, the court will not make extensive individual findings now. However, the previously referenced grades [particular acknowledgement coming from Father as to [V.R.]’s poor grades in reading, math and science], Father’s multiple homes over the past three years [three homes with an expressed possibility to relocate yet again], the crowded condition of Father’s current two bedroom home [six children total with Father’s live-in girlfriend’s three], hygiene issues [body odor and cigarette smoke detected on the children by Mother and Maternal Grandmother and the court’s observation of the same of Father in the courtroom], exposure of the [C]hildren to smoking in the home when [D.R.] and [R.R.] both suffer from asthma [although the court credited Father’s testimony that he and his girlfriend smoked in a separate room from the [C]hildren and credits his further efforts to address his smoking], and the difficulties Mother experienced in lacking Father’s cooperation with appropriate access to school information and parenting time were well established by the evidence.
***
In reaching its decision, the court did consider the factors listed in I.C. 31-17-2-8. . . . The difficulties over Mother’s parenting time, the crowded conditions of Father’s home, together with his multiple moves with the [C]hildren, the [C]hildren’s hygiene issues, their school performance and the court’s other observations noted previously all fit into the factors the court is directed to consider.
Id. at 14-15. As it had in the February 4 order, the trial court ordered that
Mother would have primary physical custody, with Father having parenting
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 11 of 15 time as agreed by the parties, but not less than that provided in the Guidelines,
and the parties would share joint legal custody. Father now appeals.
Discussion & Decision [19] Father asserts that the trial court erred when it modified physical custody to
Mother. In general, we review custody modifications for an abuse of
discretion, with a preference for granting latitude and deference to our trial
courts in family law matters. Webb v. Webb, 868 N.E.2d 589, 592 (Ind. Ct. App.
2007). We will not reverse unless the trial court’s decision is against the logic
and effect of the facts and circumstances before it or the reasonable inferences
drawn therefrom. Id. Where, as here, neither party requested specific findings,
but the trial court entered some findings and conclusions sua sponte, the
specific findings control only with respect to the issues they cover, while a
general judgment standard applies to issues outside the court’s findings. In re
Marriage of Sutton, 16 N.E.3d 481, 484-85 (Ind. Ct. App. 2014). The trial court’s
findings or judgment will be set aside only if they are clearly erroneous. Id. A
finding of fact is clearly erroneous when there are no facts or inferences drawn
therefrom to support it. Id.
[20] A petitioner seeking modification of custody bears the burden of demonstrating
that the existing custody arrangement should be altered. Webb, 868 N.E.2d at
592. Ordinarily, 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 or more of the factors a court may consider under I.C. § 31-17-2-
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 12 of 15 8 (Section 8). Id. at 592-93 (citing I.C. § 31-17-2-21). Those factors include: the
child’s age and sex; the wishes of the parent(s); the child’s wishes; the
relationship the child has with his or her parent(s), sibling(s), and others; the
child’s adjustment to home, school, and community; the mental and physical
health of all involved; and any evidence of domestic or family violence. I.C. §
31-17-2-8.
[21] Father concedes that there was evidence presented in support of “certain
circumstances (bad grades, a crowded living environment, smoking in the
home, etc.)”, but argues that “there is a complete absence of evidence that these
circumstances represent a change of any kind[,]” and because there was no
evidence of a substantial change in circumstances, the custody modification was
clearly erroneous. Appellant’s Brief at 11-12. We disagree with his
characterization of the evidence and his conclusion.
[22] The trial court expressly found that there had been a substantial and continuing
change in circumstances and that modification was in the Children’s best
interests. The changed circumstances included the following: At or near the
date of the November 2018 and January 2019 hearings, D.R. and V.R. had
poor and failing grades in fourth and third grade, respectively. Father had
moved residences at least three times in the approximately three years since the
dissolution, and eight people were living in a two-bedroom residence. The
Children exhibited poor hygiene and frequent illness when Mother picked them
up for parenting time. Mother had been solely responsible for the
transportation relative to her parenting time, and she had not exercised birthday
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 13 of 15 or holiday parenting time with them in several years because Father always had
them on those occasions. Father had been charged in September 2018 with
driving a vehicle without ever having obtained a license, and the matter was
still pending in January 2019. These findings were supported by the evidence
presented. To the extent that Father argues that “[the court] made absolutely
no effort to compare these present circumstances to past circumstances, i.e., to
mark a change[,]”Appellant’s Brief at 11, we find there was sufficient evidence in
this case from which the trial court could infer that the present circumstances
represented a change.
[23] We also observe that, despite the fact that the trial court ordered Father at the
November 2018 hearing to take steps to ensure that Mother had access to the
Children’s records at school, she was still not able to access them after the
hearing, and there was no testimony that Father had contacted the school, as
ordered, to remedy the situation. Indeed, Father’s testimony at the second
hearing reflected an unawareness of any problem – as if it had never been
discussed – stating that he believed any block on Mother’s access had already
been resolved when the CHINS case was closed in 2016 and offering to take
care of the matter on his next day off.
[24] As our Supreme Court has observed regarding our review of custody
modifications, “‘we 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[.]’” In re Marriage
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 14 of 15 of Sutton, 16 N.E.3d at 487 (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.
2002)). The trial court here expressly determined that “[t]he difficulties over
Mother’s parenting time, the crowded conditions of Father’s home, together
with his multiple moves with the [C]hildren, the [C]hildren’s hygiene issues,
their school performance and the court’s other observations . . . all fit into the
factors [of Section 8] that the court is [] to consider[,]” in particular, the
interaction and relationship of the child with the child’s parent or parents, the
child’s adjustment to home, school, and community, and the mental and
physical health of all individuals involved. Appellant’s Appendix Vol. II at 15.
We agree and find that the trial court’s order modifying custody was not clearly
erroneous. See Webb, 868 N.E.2d at 594 (affirming the trial court’s
determination that, where the two children, ages twelve and fourteen, had
received, intermittently, failing grades in their regular academic classes, the
failure of children to progress academically constituted a substantial change in
circumstances that warranted modification).
[25] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-941 | October 24, 2019 Page 15 of 15