MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 26 2017, 9:09 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Darlene R. Seymour Denise F. Hayden Ciyou & Dixon, P.C. Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Marriage of A.V., Sr., June 26, 2017 Appellant-Petitioner, Court of Appeals Case No. 49A02-1609-DR-2217 v. Appeal from the Marion Superior Court L.V., The Honorable James A. Joven, Appellee-Respondent Judge The Honorable Kimberly D. Mattingly, Magistrate Trial Court Cause No. 49D13-1201-DR-2551
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 1 of 14 Case Summary [1] A.V., Sr. (“Father”), appeals the trial court’s order (“Order”) granting the
petition for modification of dissolution decree filed by L.V. (“Mother”). Father
raises one issue, which we restate as whether the trial court abused its discretion
in granting Mother primary physical custody of Al.V. (“Daughter”). Finding
no abuse of discretion, we affirm.
Facts and Procedural History [2] In April 2014, Mother and Father’s marriage was dissolved.1 Pursuant to the
dissolution decree, Mother and Father were granted joint legal custody of their
two minor children, fifteen-year-old An.V. (“Son”) and ten-year-old Daughter,
and Father was granted primary physical custody. Parenting time was provided
as follows:
The children shall alternate weekends with each parent from Friday after school … until Monday morning with that parent being responsible for transporting the children to school. [Mother] should care for the children during times Monday through Thursday when [Father] works, whether a normal or overtime shift. During weeks when [Father] works only one day during this time frame, [Mother] should have the children for an additional overnight during the week for a total of two midweek overnights per week.
1 Father’s statement of the facts is not set forth in accordance with our standard of review and predominately consists of Father’s testimony in contravention of Indiana Appellate Rule 46(A)(6)(b) and -(c).
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 2 of 14 Appellant’s App. Vol. 2 at 20. Mother and Father’s oldest child, who was three
weeks from turning nineteen, was found to be emancipated. Father was
awarded the marital residence in Indianapolis and was required to refinance or
sell it within one year of the decree to remove Mother’s name from the
mortgage. At the time of the dissolution, the children attended Warren
Township schools. The dissolution decree provided that the “children should
attend school from [Father’s] home unless he chooses to relocate outside of the
school district, at which time [Daughter] may attend school from [Mother’s]
school district with [Son] given the choice of completing his high school
education at his current school or at a school in [Mother’s] school district.” Id.
[3] In July 2014, Father filed the first of three notices of intent to relocate. In his
notice, Father stated that he intended to relocate to an apartment in
Greenwood, which was in the Center Grove school district and would enable
the children to attend better schools. Id. at 24. He also stated that he needed to
vacate the marital residence to make repairs so that he could comply with the
dissolution decree. Father’s proposed new apartment was approximately thirty
miles from Mother’s residence and ten miles from her place of employment.
[4] Mother filed a petition to modify legal custody and a restraining order, arguing
that Father had already begun to unilaterally withdraw the children from their
current schools and enroll them in Center Grove schools, his action was
contrary to the provisions of the dissolution decree and not in the children’s best
interests, and her ability to transport the children to Center Grove schools
would be unreasonably difficult given that she exercised equalized parenting
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 3 of 14 time. Id. at 27-28. She requested that she be granted legal custody of the
children and that Father be restrained from withdrawing the children from their
current schools. Following a hearing, in August 2014, the trial court ordered
that the parties would continue to share joint legal custody of their minor
children, Father would continue to have primary physical custody, and Father
would be permitted to relocate to Greenwood and enroll the children in Center
Grove schools. Id. at 31.
[5] In December 2014, Father filed his second notice of intent to relocate. He
stated that he intended to move back to the marital residence due to financial
difficulties but the children would remain in their current schools. Id. at 33.
Mother did not object. In June 2015, Mother filed a petition for modification of
custody, arguing that a substantial and continuing change of circumstances had
occurred in that Son felt depressed at his current school and wanted to return to
Warren Central High School. Id. at 36. She requested that she be granted
primary physical custody of both children so that they would not be separated
and on different parenting time schedules. Id. at 37. In August 2015, following
a hearing, the trial court denied Mother’s petition for modification of custody.
[6] In April 2016, Father filed his third notice of intent to relocate, stating that he
intended to move to Bargersville “to reestablish residency in the children’s
current school district, providing stability and support in their educational and
social circles.” Id. at 40. In June 2016, Mother filed an objection to Father’s
intent to relocate contending that it was not in the children’s best interests. Id.
at 43. Mother also filed a petition for modification of dissolution decree, the
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 4 of 14 petition from which this appeal stems, alleging that a substantial change of
circumstances had occurred such that the dissolution decree should be modified
with respect to child custody. The alleged substantial change of circumstances
included the following: Son was going to turn eighteen, would graduate from
high school in May 2016, and had been accepted to a college in northern
Indiana; long-distance driving to Daughter’s school was causing undue fatigue
and stress on the child; Daughter would be able to attend Washington
Township schools; there was a great deal of animosity between Son and Father;
and both children preferred to reside with Mother. Id. at 44-45.
[7] In June and August 2016, the trial court held a hearing on Mother’s objection
to Father’s relocation and her petition for modification of dissolution decree. In
September 2016, the trial court issued its Order granting Mother primary
physical custody of Daughter. The Order provides in relevant part,
The Court specifically finds that there is a substantial change of circumstances in that [Son] no longer resides with Father and Father insists on leaving [Daughter], age thirteen (13) alone when he works overnights. This makes the current arrangements unreasonable.[2] Father has also refused to alter his and [Daughter’s] eating habits, despite being aware of her weight issues and has damaged his relationships with the parties’ two oldest children to the point where they are strained, at best.
2 Indiana law no longer requires that a substantial change in circumstances make the current arrangement unreasonable before custody may be modified. Julie C. v. Andrew C., 924 N.E.2d 1249, 1258 (Ind. Ct. App. 2010) (explaining that custody modification statute was amended in 1994 to remove requirement of unreasonableness, and stating, “Thus, a petitioner is no longer required to show that an existing custody order is unreasonable before a court will modify it.”).
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 5 of 14 Appealed Order at 1. This appeal ensued.
Discussion and Decision [8] Father challenges the trial court’s decision to grant Mother primary physical
custody of Daughter. We review custody modifications for an abuse of
discretion, with a preference for granting latitude and deference to our trial
judges in family law matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). An
abuse of discretion occurs “when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before the court.” L.C. v. T.M.,
996 N.E.2d 403, 407 (Ind. Ct. App. 2013). When reviewing a trial court’s
decision regarding custody modification, we neither reweigh the evidence nor
judge the credibility of the witnesses. Miller v. Carpenter, 965 N.E.2d 104, 108
(Ind. Ct. App. 2012). We consider only the evidence favorable to the judgment
and any reasonable inferences arising therefrom. Id. In the initial custody
determination, both parents are presumed equally entitled to custody, but a
petitioner seeking subsequent modification bears the burden of demonstrating
that the existing custody should be altered. Kirk, 770 N.E.2d at 307.
[9] The trial court’s Order contains one specific finding.
When the trial court enters findings sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not found. The specific findings will not be set aside unless they are clearly erroneous, and we will affirm the general judgment on any legal theory supported by the evidence. A finding is clearly erroneous when there are no facts or inferences drawn therefrom that support it. In reviewing the trial court’s findings, we neither Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 6 of 14 reweigh the evidence nor judge the credibility of the witnesses. Rather, we consider only the evidence and reasonable inferences drawn therefrom that support the findings.
Julie C. v. Andrew C., 924 N.E.2d 1249, 1255-56 (Ind. Ct. App. 2010) (citations
omitted).
[10] At the outset, we note that Father bases much of his challenge to the trial
court’s Order on the relocation statute, Indiana Code Section 31-17-2.2-5,
which provides that the relocating parent is required to prove that the proposed
relocation is made in good faith and for a legitimate reason and then the
nonrelocating parent is required to show that the proposed relocation is not in
the child’s best interests. Although Mother filed an objection to Father’s April
2016 notice of intent to relocate, the trial court’s sole finding is clearly not based
on the relocation. Rather, Mother filed an independent petition for
modification of dissolution decree based solely on the general modification
statute, Indiana Code Section 31-17-2-21, and the trial court’s finding is
unmistakably based on that statute. Therefore, the proper analysis of the trial
court’s decision is pursuant to Section 31-17-2-21. Given that both statutes
require consideration of the child’s best interests, Father’s arguments relating to
Daughter’s best interests are relevant to our review under Section 31-17-2-21,
and therefore we will consider them.
[11] Section 31-17-2-21 provides that the trial court “may not modify a child custody
order unless: (1) modification is in the best interests of the child; and (2) there is
a substantial change in one or more of the factors that the court may consider
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 7 of 14 under section 8.” (Emphasis added.) The factors in Section 31-17-2-8 include,
among other things, the child’s age and sex; the parents’ wishes; the child’s
wishes, with the wishes of children fourteen years or older being given more
weight; the child’s relationship with parents, siblings, and any other person
affecting the child’s best interests; the child’s adjustment to home, school, and
the community; and the mental and physical health of all individuals involved.
Also, in determining whether to modify a child custody order, “the court shall
not hear evidence on a matter occurring before the last custody proceeding
between the parties unless the matter relates to a change in the factors relating
to the best interests of the child as described by section 8.” Ind. Code § 31-17-2-
21(c).
[12] Father first argues that claim preclusion bars litigation of Mother’s June 2016
petition for modification of dissolution decree. Claim preclusion, a branch of
res judicata, “applies where a final judgment on the merits has been rendered
and acts as a complete bar to a subsequent action on the same issue or claim
between those parties and their privies.” Angelopoulos v. Angelopoulos, 2 N.E.3d
688, 696 (Ind. Ct. App. 2013), trans. denied (2014).
In order for a claim to be precluded under the doctrine of res judicata, the following four requirements must be satisfied: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies. …. In determining whether the doctrine should apply, it is helpful to Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 8 of 14 inquire whether identical evidence will support the issues involved in both actions.
Afolabi v. Atl. Mortg. & Inv. Corp., 849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006)
(citations omitted) (emphasis added).
[13] Father contends that the trial court already heard and rejected identical
arguments at the hearing on Mother’s June 2015 petition to modify custody.
We observe that a year had passed between the hearing held on Mother’s June
2015 petition and the hearing on Mother’s June 2016 petition. At the hearing
on the June 2016 petition, the trial court specifically stated that the law
prohibited consideration of events that occurred before modification was last
considered. 8/26/16 Tr. at 44; See Ind. Code § 31-17-2-21(c). Circumstances
can very easily change over the course of a year. In fact, the trial court found
that they had. Where new facts exist upon which the new claim is based, the
matter now in issue cannot have been determined in the former action. We
conclude that claim preclusion does not bar Mother from litigating the
arguments in her June 2016 petition for modification of dissolution decree. See
Afolabi, 849 N.E.2d at 1175 (concluding that where facts necessary to establish
default in first foreclosure action were different from facts necessary to establish
default in second foreclosure action, res judicata did not apply to bar second
action).
[14] Next, Father asserts that Mother failed to carry her burden to establish that
modification of child custody was warranted. Pursuant to Section 31-17-2-21,
the trial court found that a substantial change in circumstances had occurred Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 9 of 14 because Son no longer lives at home and Father “insists” on leaving Daughter
alone when he works overnights. Appealed Order at 1. In addition, by
granting Mother’s request for primary physical custody, the trial court implicitly
found that under the circumstances, it was not in Daughter’s best interests to be
left home alone at Father’s apartment while he was working overnight. Our
review of the record leaves us confident that the trial court did not abuse its
discretion.
[15] The evidence favorable to the trial court’s decision shows that Son has
graduated from high school, has started college at St. Joseph’s College in
Rensselaer, and no longer lives with Father. As of the first day of the hearing in
June 2016, Daughter was twelve years old and had just finished seventh grade
and would turn thirteen in July. Father’s employment frequently requires him
to work twenty-four-hour shifts, and he leaves Daughter alone overnight while
he is working. 6/24/16 Tr. at 22-23. In early June, Father moved to the
Bargersville apartment. Mother testified that she did not think that Daughter
knew anyone near their new apartment, and there is no evidence that Daughter
did know anyone nearby. That day, Mother had gone to Daughter’s softball
game, and Daughter had an overnight bag because she expected to go home
with Mother. However, Father insisted that Mother bring Daughter to the
empty apartment in Bargersville. Mother dropped Daughter off at the empty
apartment against her better judgment because Father threatened legal action
against her. 8/26/16 Tr. at 21-22.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 10 of 14 [16] In another instance, Mother’s parenting time was to end on a Sunday evening
at 6:00 p.m., and she learned that Father would be working overnight. Because
he was working, she asked him if she could keep Daughter until he got off work
the next morning. Id. at 11-12. Father texted Mother that she was to take
Daughter to his apartment or he would see Mother in court, that Mother was
interfering with his parenting time, and that if she did not bring Daughter to the
apartment, he was going to send commercial transportation for Daughter. Id.
at 12. Mother texted Father that she did not feel comfortable with Daughter
being alone overnight. Father agreed to meet Mother at a McDonald’s to pick
up Daughter, after which he took her to the apartment and went back to work.
Id. There were two or three other instances when Daughter stayed alone
overnight, including one when another thirteen-year-old girl spent the night
with her. Father testified that after speaking with other parents, he thinks that it
is appropriate to allow a thirteen-year-old girl to spend the night alone and that
if he retains custody he would continue to leave Daughter by herself on nights
that he is working.3 Id. at 83. Mother and Father had an agreement that
Daughter would stay with Mother when Father worked during the week.
Appellant’s App. at 20; 6/24/16 Tr. at 27; Appellant’s Reply Br. at 7.
[17] Father justifies his decision to leave Daughter alone overnight because other
parents apparently believe that thirteen is an appropriate age to stay at home
3 Father contends that he has left Daughter alone overnight only three times over the summer and that isolated acts do not warrant modification of custody. Appellant’s Br. at 17. However, his testimony shows that this would not be an isolated act.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 11 of 14 overnight, one night another thirteen-year-old stayed with Daughter, he works
only twenty minutes away, and he lives in a safe neighborhood. He argues that
a difference in opinion on this question is insufficient to justify a change in
custody. The evidence shows that Father ignored Mother’s concerns and their
prior agreement, insisted that Daughter remain alone in the apartment rather
than stay overnight with Mother, and threatened to take Mother to court.
Father offers no reasonable justification for refusing to allow Daughter to stay
with Mother. “[I]n custody disputes, the trial court is often called upon to
make Solomon-like decisions in complex and sensitive matters. The trial court
is in a position to see the parties, observe their conduct and demeanor, and hear
their testimony; therefore, its decision receives considerable deference in an
appellate court.” Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App.
2002) (citations and quotation marks omitted), trans. denied. Father’s argument
is merely a request to reweigh the evidence and judge witness credibility, which
we must decline. See Miller, 965 N.E.2d at 108. We conclude that the evidence
supports the trial court’s finding that Son’s absence from Father’s home and
Father’s insistence that thirteen-year-old Daughter spend the night alone
constitutes a substantial change in circumstances and is not in Daughter’s best
interests.
[18] Father also contends that the evidence does not support the trial court’s implicit
finding that Daughter has a weight issue and that his eating habits are
contributing to it. The evidence shows that Mother took Daughter to her yearly
physical in July 2016 and Daughter’s doctor was concerned about her weight
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 12 of 14 and discussed healthy eating habits with her. Daughter was thirty-five pounds
over her ideal weight. 8/26/16 Tr. at 10. She has developed stretch marks
from her rapid weight gain. 6/24/16 Tr. at 21-22. Mother prepares home-
cooked meals almost every night with vegetables and fruits. 8/26/16 Tr. at 10.
Mother and Daughter go for walks, often walking the dogs together. Although
Father participates in active pursuits with Daughter, such as going white-water
rafting and mountain biking while on vacation, Father could not remember the
last time he prepared a home-cooked meal. Father testified that they “do not
cook much at home” and they usually get takeout, which Father described as
pizza, steak, vegetables, Asian food, Chinese food, and Subway sandwiches.
Id. at 89-90. Again, Father’s arguments are invitations to reweigh evidence and
judge witness credibility, which we cannot not do. See Miller, 965 N.E.2d at
108. We conclude that the evidence supports the trial court’s finding regarding
Daughter’s weight and diet.
[19] Father does not contest the trial court’s finding that his relationships with the
two older children are strained, but he argues that it should have no bearing on
custody modification. We disagree. Among the factors that are relevant to a
child’s best interests are the child’s relationships to siblings. Ind. Code § 31-17-
2-8. The record shows that Father’s relationship with Son is very troubled,4 and
the strain in their relationship casts a dark shadow on Daughter and Son’s
ability to maintain their relationship.
4 A significant amount of testimony at the hearing was directed to the clashes between Father and Son, and the trial court’s finding that their relationship is strained appears to be an understatement.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 13 of 14 [20] Finally, Father asserts that changing custody is not in Daughter’s best interests
because she has been doing well academically in her current school and has
made friends at the school. Father notes that if custody is modified Daughter
will have to change schools, which would constitute a serious disruption in her
life, and a change in custody for this reason alone is not in Daughter’s best
interests. The impact of changing schools will vary depending on the child and
the child’s circumstances and standing alone is not determinative of whether a
change in custody is in a child’s best interests. The trial court heard evidence
on multiple factors of Daughter’s life and found that it was in her best interests
to be in the primary custody of her Mother. We cannot say that the trial court
abused its discretion in granting Mother primary physical custody of Daughter.
Therefore, we affirm.
[21] Affirmed.
Baker, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017 Page 14 of 14