In Re the Marriage of: Leann Palmer (Lawrence) v. Jeffrey Palmer (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 14, 2015
• Docket: 48A04-1405-DR-203
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this May 14 2015, 8:40 am Memorandum Decision shall not be regarded as May 14 2015, 8:39 am

precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Deborah M. Agard Douglas R. Long Law Office of Deborah M. Agard Anderson, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Marriage of: May 14, 2015 Court of Appeals Case No. Leann Palmer (Lawrence), 48A04-1405-DR-203 Appellant-Petitioner, Appeal from the Madison Circuit Court. v. The Honorable Carl E. Van Dorn, Special Judge. Cause No. 48D03-0712-DR-1413 Jeffrey Palmer, Appellee-Respondent

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 1 of 13 [1] Leann Palmer (Mother) appeals the trial court’s order denying her petition to

modify the child custody arrangement in place between Mother and Jeffrey

Palmer (Father). Mother makes a number of arguments, which we consolidate

and restate as follows: (1) that the trial court erred by declining to name Betty

Palmer, the children’s paternal grandmother (Grandmother), as a de facto

custodian and party; and (2) that there is insufficient evidence supporting the

trial court’s order. Finding no error, we affirm.

Facts [2] Mother and Father were married in 1988 and had two children, A.P., who was

born in 2001, and B.P., who was born in 2003. On April 18, 2007, the marriage

was dissolved and Father was named primary custodian of the children. At

that time, Mother was incarcerated on convictions for five counts of federal

bank fraud.1

[3] Since that time, Father and the children have lived with Grandmother. The

children are enrolled in a parochial school, which they have attended for the

past three years. Mother does not contribute to the cost of their education or

healthcare, and she has never paid child support, though Father receives part of

her disability payments to care for the children.

1 As a result of her convictions, Mother is ordered to pay over $429,000 in restitution. Monthly payments on this debt are deducted from her disability payments.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 2 of 13 [4] A.P. has been diagnosed with Attention Deficit Hyperactivity Disorder

(ADHD). The school he attends has set up a program to help manage his

special needs. He has had the same teacher for the past two years, and she

testified that A.P. has adjusted quite well to school, concentrates much better

since beginning a medication regimen, and now has many friends. Mother has

never been involved in the children’s education. A.P. sees a psychiatrist, Dr.

Sheila Irick, to help manage his medication and his needs. Dr. Irick testified

that removing A.P. from his school would be harmful, that A.P. is receiving

exceptional care from Father and Grandmother, and that the weight of both

children is within normal limits.2 While there was a time when the children

were not involved in any extracurricular activities because of concerns for A.P.,

both children are now involved in Boy Scouts and basketball.

[5] Father has a full-time job that requires his presence at work from approximately

9 in the morning until 7 or 7:30 in the evening. As a result, he is generally able

to spend time with the children in the morning before school and in the

evenings before bed, as well as on the weekends. While Father is at work,

Grandmother cares for the children. Specifically, she takes A.P. to his doctor

appointments, communicates with the school about the children, and ensures

that their needs are met. When Father is at home, he cares for the children.

When he is able to, he attends medical appointments and always discusses

2 Mother testified that she was concerned that the children were underweight, but offered no expert testimony to contradict Dr. Irick’s opinion that the children’s weight was healthy.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 3 of 13 medical care decisions with Grandmother before those decisions are made.

The children are bonded to both Father and Grandmother.

[6] At some point, Mother was released from incarceration. Since that time, she

has called the police on Father, resulting in charges against him that were later

dismissed, and called Child Protective Services on Father, resulting in

allegations that were unsubstantiated. On one occasion, Mother went to the

children’s school, where she screamed and verbally attacked teachers and

school personnel, resulting in her being escorted from the school premises.

Mother complains that she has been unable to access the children’s school,

medical, and mental health records, but that has since been rectified. Father

has never been held in contempt for any failure to abide by the custody order in

place. Mother testified that if she got custody, she would consider moving the

boys to a different school or home schooling them, which Dr. Irick opined

would not be in their best interests.

[7] On September 19, 2011, Mother filed a petition to modify the child custody

arrangement, seeking to be named the primary custodian. Mother asked that a

Guardian ad Litem (GAL) be named to represent the children’s interests, and

the trial court granted that request, appointing a GAL on March 5, 2012. The

GAL filed a report with the trial court on May 21, 2012, and filed a

supplemental report on August 7, 2012. The GAL recommended that Mother

and Father share joint legal custody but that Father remain the primary physical

custodian, with Mother to have liberal parenting time while Father is at work.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 4 of 13 [8] On March 5, 2013, Mother filed a second petition to modify the child custody

arrangement, seeking to be named the primary custodian. According to

Mother, the second petition was filed because no hearing had been held on the

first.3

[9] On four days between August 28, 2013, and January 27, 2014, the trial court

held an evidentiary hearing on the motion to modify. The parties submitted

proposed findings of fact and conclusions of law, and on April 8, 2014, the trial

court entered its order denying Mother’s motion to modify. Mother now

appeals.

Discussion and Decision I. De Facto Custodian [10] Mother first argues that the trial court erred by declining to find that

Grandmother is the children’s de facto custodian and naming her a party to the

litigation. “De facto custodian” is defined as “a person who has been the

primary caregiver for, and financial support of, a child who has resided with the

person” for at least one year for children over the age of three. Ind. Code § 31-

9-2-35.5. If it is established “by clear and convincing evidence that a child has

been cared for by a de facto custodian,” then certain factors must be considered.

Ind. Code § 31-17-2-8.5. If, having considered all relevant factors, the trial

3 The Chronological Case Summary shows that another motion to modify custody, support, and visitation was filed by Mother on June 26, 2013, but this pleading does not appear in the Appellant’s Appendix.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 5 of 13 court “determines that a child is in the custody of a de facto custodian, the court

shall make the de facto custodian a party to the proceeding.” I.C. § 31-17-2-

8.5(c). In other words, even if a child has been cared for by a de facto

custodian, that person is not a required party unless the trial court determines

that the child was actually “in the custody” of the de facto custodian.

[11] In this case, Mother never requested that the trial court find Grandmother to be

a de facto custodian of the children. Indeed, her proposed findings of fact and

conclusions of law make no mention of this issue. Consequently, she has

waived it for purposes of this appeal.

[12] Waiver notwithstanding, we note that in any event, Mother failed to meet her

burden of establishing by clear and convincing evidence that Grandmother was

a de facto custodian. Instead, the record reveals that Grandmother cared for

the children while Father was at work, including managing their medical

appointments and educational needs. But when Father was home, he was also

a caregiver for the children, he kept apprised of what was happening in the

children’s lives, and he attended medical appointments and school events when

he was able to. This is a common situation when any parent has a full-time job,

and in this case, the children are lucky enough to have a family member able to

meet these needs instead of a childcare facility or babysitter. Therefore, even if

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 6 of 13 Mother had not waived the issue, we find that she has failed to establish that

Grandmother is a de facto custodian.4

II. Sufficiency [13] Next, Mother makes a number of arguments that amount to a contention that

there is insufficient evidence supporting the trial court’s denial of her motion to

modify. We review rulings on requests to modify custody for abuse of

discretion, with a preference for granting latitude and deference to our trial

judges in family law matters. Wilson v. Myers, 997 N.E.2d 338, 340 (Ind. 2013).

In reviewing the trial court’s determination, we neither reweigh evidence nor

assess witness credibility. In re Marriage of Harpenau, 17 N.E.3d 342, 346 (Ind.

Ct. App. 2014). We will not substitute our judgment if any evidence or

legitimate inferences support the trial court’s judgment. Id.

[14] The Indiana Code prohibits a court from modifying 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

under section 8 . . . of this chapter.” I.C. § 31-17-2-21(a). Those factors

include:

4 We also express our skepticism that Mother has standing to raise this issue. It is apparent to us that the intent of the requirement to make a de facto custodian who has custody of a child a party to any custody proceeding is to benefit and protect the de facto custodian, who otherwise might have no input into the trial court’s determination. We question whether a biological parent has the right to inject the issue into a custody proceeding. We need not answer this question, however, inasmuch as we conclude that in this case, Mother has not succeeded with her argument on this issue.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 7 of 13  the child’s age and gender;  the wishes of the parent(s);  the wishes of the child, with greater consideration given to the wishes of children fourteen years of age and older;  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;  any evidence of domestic or family violence;  and any evidence that the child has been cared for by a de facto custodian.

I.C. § 31-17-2-8. The party seeking modification “bears the burden of

demonstrating that the existing arrangement is no longer in the best interests of

the child and there has been a substantial change in one or more of the

enumerated statutory factors[.]” Wilson, 997 N.E.2d at 340 (internal citation

omitted).5

[15] In this case, the record reveals that Father has been the children’s primary

custodian since 2006. While the normal ups and downs of life have occurred in

the ensuing years, it is apparent that the children are safe, loved, and thriving in

this home. Father and Grandmother appropriately sought medical advice

5 Mother makes much of the fact that the trial court quoted caselaw that may or may not still be good authority, claiming that the trial court applied an incorrect legal standard to the proceedings. Specifically, in its order, the trial court stated as follows: “The requirements for a modification of child custody are set forth in I.C. 31-17-2-21 and case authority. There must be a showing that modification is in the best interest of the boys and that there has been a substantial change of circumstances in [Father’s] home that warrants a modification.” Appellant’s App. p. 17. The trial court then proceeds to reference outdated caselaw. While we acknowledge that an incorrect standard may have been applied, we are confident that the evidence in the record readily supports the trial court’s judgment. To remand for reconsideration would be an inefficient use of judicial and litigant resources, inasmuch as the trial court would justifiably reach the same conclusion as it did the first time around. Consequently, we decline to remand on this basis.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 8 of 13 regarding A.P.’s challenges, received the ADHD diagnosis, and then worked

with the school to ensure that his educational needs are being met and with a

psychiatrist to ensure that his medication regimen is appropriate. Since

receiving the diagnosis and treatment, A.P. has dramatically improved in

school and has made many friends at school and in his neighborhood. His

psychiatrist testified that A.P. is receiving exceptional care from Father and

Grandmother and that it would not be in his best interests to change homes or

schools. There is no evidence that B.P. is having any difficulties at this time.

Both children are now enrolled in basketball and Boy Scouts.

[16] The vast majority of Mother’s argument on appeal consists of her directing our

attention to evidence that supports her position and attempting to discredit the

evidence and witnesses relied upon by the trial court. This amounts to a

repeated request that we reweigh the evidence and assess witness credibility,

which we will not do. See Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)

(cautioning that with respect to custody modifications, appellate courts “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”).

[17] It is readily apparent that the difficulties in this case stem from the negative

relationship between Mother, Father, and Grandmother. This relationship is

permeated by animosity, vitriol, and poor communication. That,

unquestionably, is not in the children’s best interests. We encourage the adults

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 9 of 13 in this case to act as such, to leave the past behind, and start anew for the sake

of the children. Mother must respect Father’s role as parent and primary

custodian and Grandmother’s role as caregiver, and Father and Grandmother

must respect Mother’s role as parent, as well as her right to the parenting time

to which she is entitled.

[18] That said, there is ample evidence in the record supporting the trial court’s

denial of the motion for custody modification. There is no basis on which to

conclude that the trial court abused its discretion in concluding that Mother

failed to meet her burden of establishing a substantial change in circumstances

such that modification is warranted.

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

Crone, J., concurs, and Brown, J., concurs in part and dissents in part with an

opinion.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 10 of 13 IN THE COURT OF APPEALS OF INDIANA

In Re the Marriage of: Court of Appeals Case No. 48A04-1405-DR-203 Leann Palmer (Lawrence), Appellant-Petitioner,

v.

Jeffrey Palmer, Appellee-Respondent.

Brown, Judge, concurring in part and dissenting in part.

[20] I concur with the majority as to its de facto custodian analysis, but respectfully

dissent from the majority’s conclusion that “it is apparent that the trial court

applied the correct legal standard” to the proceedings. Slip op. at 8 n.5. In

denying Mother’s petition, the trial court stated in its “Conclusions of Law”

that “[t]he requirements for a modification of child custody are set forth in I.C.

31-17-2-21 and case authority.” Appellant’s Appendix at 17 (emphasis added). It

proceeded to cite language from the case of Herrmann v. Herrmann, 613 N.E.2d

471, 473 (Ind. Ct. App. 1993), reh’g denied, in which this court stated: “A

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 11 of 13 modification of custody is warranted only when the noncustodial parent shows

a decisive change of conditions in the custodial home or a change in the

treatment of the children in the custodial home which necessitates removal.”

Id. Thus, despite the fact that it cited to the current modification statute, the

court applied this language in Herrmann in rendering a decision on Mother’s

petition.

[21] At the time of Herrmann,6 modification of child custody was governed by Ind.

Code § 31-1-11.5-22(d), which provided as follows:

The court in determining said child custody, shall make a modification thereof only upon a showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable. In making its determination, the court shall not hear evidence on matters occurring prior to the last custody proceeding between the parties unless such matters relate to a change of circumstances.

(Subsequently amended by Pub. L. No. 4-1993, § 264; Pub. L. No. 5-1993, §

277; Pub. L. No. 139-1994, § 2; repealed by Pub. L. No. 1-1997, § 157). In Pub.

L. No. 139-1994, the General Assembly replaced the former statute with a new

modification statute which is substantially similar to the current version found

at Ind. Code § 31-17-2-21(a) and is principally focused on the best interests of

the child and whether a substantial change in one of the enumerated factors

listed in Ind. Code § 31-17-2-8 has occurred. See also Joe v. Lebow, 670 N.E.2d 9,

6 The father in Herrmann filed his petition for modification of custody on November 5, 1990. 613 N.E.2d at 473.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 12 of 13 17 (Ind. Ct. App. 1996) (noting that “[e]ffective July 1, 1994, the modification

provisions in both the paternity and the dissolution statutes were revised

significantly . . .”).

[22] The court erroneously applied certain language from Herrmann that, to prevail,

Mother was required to show that “a decisive change of conditions in the

custodial home or a change in the treatment of the children in the custodial

home” existed “which necessitate[d] removal” of A.P. and B.P. This is a

statement of law interpreting a superseded statute which neither concerns itself

with the best interests of the children, nor instructs the court to examine the

enumerated factors listed in Ind. Code § 31-17-2-8. Rather, when Herrmann was

issued the court’s sole focus was to determine whether the movant

demonstrated “changed circumstances so substantial and continuing as to make

the existing custody order unreasonable.” Because the court applied an

incorrect legal standard in reviewing Mother’s modification petition, I would

remand with instructions that the court consider the best interests of A.P. and

B.P., as well as the factors of Ind. Code § 31-17-2-8, without necessarily hearing

additional evidence, and to issue amended findings and conclusions based

thereon. For these reasons, I respectfully dissent in part.

Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015 Page 13 of 13