MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 17 2020, 9:43 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE Audrey Wilson Dale, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re The Paternity of: E.E., August 17, 2020
Audrey L. Wilson, Court of Appeals Case No. 19A-JP-3083 Appellant-Respondent, Appeal from the Spencer Circuit v. Court The Honorable Karen Werner, Greg S. Elsperman, Magistrate Trial Court Cause No. Appellee-Petitioner, 74C01-1811-JP-291
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 1 of 10 Case Summary and Issue [1] Audrey Wilson (“Mother”) and Greg Elsperman (“Father”) have one child
together, E.E. (“Child”). After the parties ended their relationship, Father filed
a petition to establish custody and parenting time. At the hearing on the
matter, and over Mother’s objection, Father’s counsel elicited testimony from
Mother regarding an abortion. Mother appeals pro se and raises one issue for
our review, which we restate as whether the trial court abused its discretion in
admitting into evidence the testimony about her abortion. Concluding any
error in the admission of the testimony was harmless, we affirm.
Facts and Procedural History 1
[2] Mother and Father met at a New Years’ Eve party in 2013, began dating
around May 2016, and began living together in the fall of that year. Mother
described their relationship as “very unstable[.]” Transcript of Evidence,
Volume 2 at 8. When the parties began living together, Mother had four
children from two prior relationships and had physical custody of two of the
children—one of whom has special needs. Father had three adult daughters,
two from a previous marriage and one from another relationship. Child was
1 Because Mother failed to file an appendix as required under Indiana Appellate Rule 49, we take our facts and procedural history from the transcript of proceedings before the trial court.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 2 of 10 born to Mother and Father on August 24, 2017. During the relationship,
Mother, a registered nurse, stayed home and cared for the children; Father
worked at an automobile dealership.
[3] The parties’ relationship ended in October 2018, when Mother left Father’s
house, taking Child and her other children with her. Mother sought and
obtained a protection order against Father. On November 5, 2018, Father filed
in the Spencer Circuit Court a petition to establish custody and parenting time,
specifically requesting joint physical and legal custody of Child. During this
time, and pursuant to an agreed order,2 Father paid $100 each week to Mother
in support of Child. Father was permitted parenting time every Monday and
Wednesday for three hours in the evening and then from 4:00 p.m. on Friday
until 4:00 p.m. on Saturday.
[4] The trial court conducted a hearing on Father’s petition to establish custody
and parenting time on July 18, 2019. The hearing was continued to, and
concluded on, October 24, 2019. On the second day of the hearing, the trial
court also heard evidence on Mother’s petition for a protection order that was
filed in October 2018, under a separate cause number.3 On the first day of the
2 It appears from testimony presented during the hearing that, at some point prior to the hearing, the parties entered into an agreed order. See Tr., Vol. 2 at 152. 3 Although it is unclear, we glean from the record that an ex parte order for protection against Father was in place until the matter of whether to impose a permanent protection order could be heard at a hearing.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 3 of 10 hearing, however, Father’s counsel questioned Mother as follows regarding
whether she had an abortion:
Q And who is Bryan Eckert?
A Bryan Eckert is a neighbor and a friend. He and I have actually recently started dating as of about two (2) weeks ago.
Q Okay, did you have a brief relationship with him that resulted in a pregnancy that you then aborted?
A Is that pertinent?
Q The question is, did you have a brief relationship with him that –
[MOTHER]: Do I need to answer?
THE COURT: Ma’am, please. Just let him finish and then answer the question.
[FATHER’S COUNSEL]: Yes, it’s pertinent. I’d like for you to answer the question.
[MOTHER’S COUNSEL]: Let me – let me state an objection on the grounds of relevancy.
[FATHER’S COUNSEL]: It’s relevant, Your Honor, to – to the fact that she has had a relationship in the past with him and it goes to somethings [sic] that have occurred since then so I believe it is relevant.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 4 of 10 [MOTHER’S COUNSEL]: Having an abortion – whether somebody has an abortion or not is different than having a relationship with somebody.
THE COURT: [Counsel], do you want to rephrase?
[FATHER’S COUNSEL]: Well, Your Honor, she has represented in her interrogatory answers about certain medical conditions and she failed to mention that she had an abortion. I believe that’s relevant to her truthfulness.
THE COURT: Overruled.
Q Did you have a relationship – a brief relationship with Bryan Eckert that resulted in a pregnancy that you terminated?
A I didn’t know that that needed to be –
[MOTHER’S COUNSEL]: Same – same – let me –
A Yes.
[MOTHER’S COUNSEL]: Let me make my objection. Same objection. Terminating is the same thing as aborting.
***
A I did.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 5 of 10 Q You did?
Q And when was that?
A That was in 2014.
Tr., Vol. 2 at 9-11.
[5] On October 30, 2019, the trial court issued its order, finding in relevant part that
it was in the best interest of Child for the parties to “share joint legal custody [of
Child], with primary physical custody to be with Father[;]” and that Mother
was “entitled to parenting time . . . according to the Indiana Parenting Time
Guidelines[.]” Appealed Order at 1. As to child support, the trial court ordered
“no child support to be paid by the Mother.” Id. Mother now appeals.
Additional facts will be provided as necessary.
Discussion and Decision I. Standard of Review [6] Mother contends that the trial court abused its discretion by allowing Father’s
counsel, over objection, to elicit testimony from Mother regarding her abortion.
We first note that Father did not file an appellee’s brief. We apply a less
stringent standard of review with respect to showings of reversible error when
an appellee fails to file a brief. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 6 of 10 App. 2006). We will not undertake the burden of developing the arguments for
the appellee, and we may reverse if the appellant establishes prima facie error.
Id. When the appellant fails to sustain that burden, we will affirm. Murfitt v.
Murfitt, 809 N.E.2d 332, 333 (Ind. Ct. App.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 17 2020, 9:43 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE Audrey Wilson Dale, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re The Paternity of: E.E., August 17, 2020
Audrey L. Wilson, Court of Appeals Case No. 19A-JP-3083 Appellant-Respondent, Appeal from the Spencer Circuit v. Court The Honorable Karen Werner, Greg S. Elsperman, Magistrate Trial Court Cause No. Appellee-Petitioner, 74C01-1811-JP-291
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 1 of 10 Case Summary and Issue [1] Audrey Wilson (“Mother”) and Greg Elsperman (“Father”) have one child
together, E.E. (“Child”). After the parties ended their relationship, Father filed
a petition to establish custody and parenting time. At the hearing on the
matter, and over Mother’s objection, Father’s counsel elicited testimony from
Mother regarding an abortion. Mother appeals pro se and raises one issue for
our review, which we restate as whether the trial court abused its discretion in
admitting into evidence the testimony about her abortion. Concluding any
error in the admission of the testimony was harmless, we affirm.
Facts and Procedural History 1
[2] Mother and Father met at a New Years’ Eve party in 2013, began dating
around May 2016, and began living together in the fall of that year. Mother
described their relationship as “very unstable[.]” Transcript of Evidence,
Volume 2 at 8. When the parties began living together, Mother had four
children from two prior relationships and had physical custody of two of the
children—one of whom has special needs. Father had three adult daughters,
two from a previous marriage and one from another relationship. Child was
1 Because Mother failed to file an appendix as required under Indiana Appellate Rule 49, we take our facts and procedural history from the transcript of proceedings before the trial court.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 2 of 10 born to Mother and Father on August 24, 2017. During the relationship,
Mother, a registered nurse, stayed home and cared for the children; Father
worked at an automobile dealership.
[3] The parties’ relationship ended in October 2018, when Mother left Father’s
house, taking Child and her other children with her. Mother sought and
obtained a protection order against Father. On November 5, 2018, Father filed
in the Spencer Circuit Court a petition to establish custody and parenting time,
specifically requesting joint physical and legal custody of Child. During this
time, and pursuant to an agreed order,2 Father paid $100 each week to Mother
in support of Child. Father was permitted parenting time every Monday and
Wednesday for three hours in the evening and then from 4:00 p.m. on Friday
until 4:00 p.m. on Saturday.
[4] The trial court conducted a hearing on Father’s petition to establish custody
and parenting time on July 18, 2019. The hearing was continued to, and
concluded on, October 24, 2019. On the second day of the hearing, the trial
court also heard evidence on Mother’s petition for a protection order that was
filed in October 2018, under a separate cause number.3 On the first day of the
2 It appears from testimony presented during the hearing that, at some point prior to the hearing, the parties entered into an agreed order. See Tr., Vol. 2 at 152. 3 Although it is unclear, we glean from the record that an ex parte order for protection against Father was in place until the matter of whether to impose a permanent protection order could be heard at a hearing.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 3 of 10 hearing, however, Father’s counsel questioned Mother as follows regarding
whether she had an abortion:
Q And who is Bryan Eckert?
A Bryan Eckert is a neighbor and a friend. He and I have actually recently started dating as of about two (2) weeks ago.
Q Okay, did you have a brief relationship with him that resulted in a pregnancy that you then aborted?
A Is that pertinent?
Q The question is, did you have a brief relationship with him that –
[MOTHER]: Do I need to answer?
THE COURT: Ma’am, please. Just let him finish and then answer the question.
[FATHER’S COUNSEL]: Yes, it’s pertinent. I’d like for you to answer the question.
[MOTHER’S COUNSEL]: Let me – let me state an objection on the grounds of relevancy.
[FATHER’S COUNSEL]: It’s relevant, Your Honor, to – to the fact that she has had a relationship in the past with him and it goes to somethings [sic] that have occurred since then so I believe it is relevant.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 4 of 10 [MOTHER’S COUNSEL]: Having an abortion – whether somebody has an abortion or not is different than having a relationship with somebody.
THE COURT: [Counsel], do you want to rephrase?
[FATHER’S COUNSEL]: Well, Your Honor, she has represented in her interrogatory answers about certain medical conditions and she failed to mention that she had an abortion. I believe that’s relevant to her truthfulness.
THE COURT: Overruled.
Q Did you have a relationship – a brief relationship with Bryan Eckert that resulted in a pregnancy that you terminated?
A I didn’t know that that needed to be –
[MOTHER’S COUNSEL]: Same – same – let me –
A Yes.
[MOTHER’S COUNSEL]: Let me make my objection. Same objection. Terminating is the same thing as aborting.
***
A I did.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 5 of 10 Q You did?
Q And when was that?
A That was in 2014.
Tr., Vol. 2 at 9-11.
[5] On October 30, 2019, the trial court issued its order, finding in relevant part that
it was in the best interest of Child for the parties to “share joint legal custody [of
Child], with primary physical custody to be with Father[;]” and that Mother
was “entitled to parenting time . . . according to the Indiana Parenting Time
Guidelines[.]” Appealed Order at 1. As to child support, the trial court ordered
“no child support to be paid by the Mother.” Id. Mother now appeals.
Additional facts will be provided as necessary.
Discussion and Decision I. Standard of Review [6] Mother contends that the trial court abused its discretion by allowing Father’s
counsel, over objection, to elicit testimony from Mother regarding her abortion.
We first note that Father did not file an appellee’s brief. We apply a less
stringent standard of review with respect to showings of reversible error when
an appellee fails to file a brief. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 6 of 10 App. 2006). We will not undertake the burden of developing the arguments for
the appellee, and we may reverse if the appellant establishes prima facie error.
Id. When the appellant fails to sustain that burden, we will affirm. Murfitt v.
Murfitt, 809 N.E.2d 332, 333 (Ind. Ct. App. 2004).
[7] We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. In re S.W., 920 N.E.2d 783, 788 (Ind. Ct. App. 2010). An abuse of
discretion occurs if the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Id. A claim of error in the
admission or exclusion of evidence will not prevail on appeal unless a
substantial right of the party is affected. Ind. Evidence Rule 103(a). “[E]rrors
in the admission of evidence are to be disregarded as harmless error unless they
affect the substantial rights of a party.” In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct.
App. 2014) (internal quotations omitted). To determine whether the admission
of evidence affected a party’s substantial rights, we assess the probable impact
of the evidence upon the finder of fact. Id.
II. Admission of Testimony [8] Mother argues that the trial court abused its discretion in admitting her
testimony of her abortion over her objection because, according to Mother,
there [was] nothing in the line of questioning immediately following the overruled objection to the admissibility of [the abortion testimony] that remotely relates to [Father’s counsel’s] rationale used in the representation made to the Court in
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 7 of 10 response to the objection or how the testimony of [Mother]’s abortion is relevant.
Brief of Appellant at 8. Mother further argues that the record “reveals no
probative value to [her] testimony of her abortion” and that her testimony
“does nothing but potentially invoke unfair prejudice.” Id. Mother asserts that
she “potentially” was “unable to receive an impartial hearing[.]” Id. at 10.
[9] Even if we accept Mother’s argument that the testimony in question lacked
relevance as to custody and parenting time for Child, we find that Mother
cannot prevail. Other than bald assertions, Mother has failed to explain how
her substantial rights were affected by the admission of the testimony. Thus,
any error in the admission of the testimony is harmless. Also, there is no
evidence in the record that the trial court relied upon the abortion testimony in
making its determination regarding custody and parenting time for Child.
Furthermore, the record reveals that Mother was provided a full and impartial
two-day hearing on matters of custody, parenting time, and child support for
Child.
[10] We note that while the abortion testimony that Mother challenges was
presented in the opening moments of the first day of the hearing, the parties
presented additional testimony regarding the abortion on the second day of the
hearing—when Mother’s counsel presented evidence on Mother’s petition for
the protection order against Father. The abortion matter was addressed
through testimony of Mother and Father that was elicited by both parties’ Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 8 of 10 counsel. Specifically, the testimony revealed that in February 2017, while
Mother was pregnant with Child, Mother scheduled a doctor’s appointment
(that was unrelated to her pregnancy), and Father showed up at the
appointment unannounced. Father testified on direct rebuttal examination, and
without objection from Mother, that he showed up at the appointment because
he was concerned that Mother “was going to go and get an abortion.” Tr., Vol.
3 at 121. During cross-examination by Mother’s counsel, counsel asked Father
if his concern was “just something that came into your mind without any
information from the outside world whatsoever[,]” and the following exchange
took place:
[FATHER:] I knew she had gotten an abortion from [her ex- boyfriend] . . . when she decided she didn’t want to be in a relationship with him and I was afraid she’d do the same thing with me.
[MOTHER’S COUNSEL:] She never gave you any indication she was considering an abortion?
[FATHER:] Only by her previous actions.
Tr., Vol. 3 at 135-36. Mother’s counsel then recalled Mother to the witness
stand to ask her the following:
[MOTHER’S COUNSEL:] [I]n regard to what [Father] said in regard to his testimony about [the] protective order. So, at any time did you ever give any indication to him that you were even considering an abortion of [Child]?
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 9 of 10 [MOTHER:] No, I did not.
Id. at 148.
[11] Testimony that was similar to the testimony presented on the first day of the
hearing, was elicited without objection on the second day of the hearing.
Mother’s counsel then continued the line of questioning and elicited additional
testimony from Father and Mother regarding the abortion. Any error in the
admission of evidence is harmless if the same or similar evidence is submitted
without objection. Homehealth, Inc. v. N. Indiana Pub. Serv. Co., 600 N.E.2d 970,
974 (Ind. Ct. App. 1992). Thus, under these circumstances, Mother has failed
to establish prima facie error, and any error in the admission of the abortion
testimony was not reversible error.
Conclusion [12] Based upon the foregoing, we conclude that any error in the admission of the
abortion testimony was harmless. We affirm the trial court’s decision awarding
joint legal and primary physical custody of Child to Father.
[13] Affirmed.
May, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 10 of 10