In Re: The Paternity of K.D. M.G. v. S.D.

• Court: Indiana Court of Appeals
• Decided: February 15, 2013
• Docket: 32A01-1209-JP-432
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not

FILED be regarded as precedent or cited before any court except for the purpose of establishing the defense of res Feb 15 2013, 9:23 am judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

SMITH DAVIS, LLC DENISE F. HAYDEN Greenfield, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN RE: THE PATERNITY OF, ) K.D., ) ) M.G., ) ) Appellant-Petitioner, ) ) vs. ) No. 32A01-1209-JP-432 ) S.D., ) ) Appellee-Respondent. )

APPEAL FROM THE HENDRICKS CIRCUIT COURT The Honorable Jeffrey V. Boles, Judge Cause No. 32C01-0401-JP-6

February 15, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

M.G. (“Mother”) appeals the trial court’s order modifying custody of her daughter,

K.D., in favor of S.D. (“Father”), and awarding attorney fees to Father. We affirm in part

and reverse in part.

Issues

The restated issues before us are:

I. whether the trial court properly modified custody; and

II. whether the trial properly ordered Mother to pay $750 toward Father’s attorney fees.

Facts

K.D. was born in February 2003. Father executed a paternity affidavit at the time

of her birth and subsequently was ordered to pay child support of $75 per week through a

Title IV-D action. However, Father never initiated an action for custody of K.D. or for

parenting time. Instead, Mother and Father agreed between themselves that Mother

would have primary custody of K.D. with Father having visitation every Wednesday and

every other weekend.

In October 2009, as K.D. was beginning first grade in the Beech Grove school

district, Father stopped paying child support by mutual agreement of the parties. The

parties reached this agreement because Mother was beginning third-shift work at a

warehouse and Father would have K.D. in his custody much more than before, or for

approximately half the time, so that he could more easily ensure that K.D. got to school.

2 This custody and support arrangement apparently was approved by the trial court in a

minute entry, although there does not appear to have been a hearing on the matter.

Father has lived for several years in a home about five minutes away from K.D.’s

school in the Beech Grove school district, while Mother lived outside the district about

twenty-five minutes away from the school. The brother of Father’s wife lives across the

street from Father and sometimes helps cares for K.D. K.D. also has friends in the

neighborhood where Father lives. Mother agreed that K.D. should go to school in Beech

Grove.

In April 2011, Father’s support obligation was again modified, with trial court

approval, so that he would pay for K.D.’s daycare expenses, including after-school care,

and for her school breakfasts and lunches. Father also provided health insurance for K.D.

In November 2011, Mother lost her job at the warehouse and began receiving

unemployment compensation of $1,248 per month. Father earns $546 per week from his

employment and his wife also has full-time employment. After Mother lost her job, she

reduced Father’s parenting time and removed K.D. from the after-school care program

against Father’s wishes. Father believed that the after-school program was important for

K.D.’s social and educational progress.

K.D. has struggled at school and, as of the time of the hearing this matter, was in

danger of having to repeat the third grade. Father hired a tutor for K.D. at a cost of $90

per week. Additionally, K.D. frequently was tardy to or missed school during times

3 when she was in Mother’s care, which prompted the school to send a letter to Father

advising him of an attendance problem.

On January 23, 2012, Father filed a “Counter-Petition to Establish Paternity of

Child and Provide for Her Custody, Support and Maintenance.” App. p. 4. The trial

court conducted a hearing on this petition on June 28, 2012. At the outset of the hearing,

counsel for Father stated, “we were set today for hearing on [Father]’s petition to modify

custody.” Tr. p. 3. The trial court then stated its understanding, without objection, that it

was considering a petition to modify custody and proceeded to receive evidence. Father

also requested that Mother pay at least a portion of his attorney fees. On July 20, 2012,

the trial court entered an order granting Father primary custody of K.D., with Mother

having parenting time on alternating weekends. It also ordered Mother to pay $25 per

week to Father in child support and to pay $750 toward Father’s attorney fees.1 Mother

now appeals.

I. Custody

We first address Mother’s challenge to the award of custody of K.D. to Father. At

the outset, we must acknowledge the unusual procedural posture of this case and resolve

precisely what kind of order we are reviewing: an initial custody determination or a

modification of custody. The distinction is critical, because there is no presumption in

favor of either parent in an initial custody determination in a paternity case. In re

Paternity of Winkler, 725 N.E.2d 124, 127-28 (Ind. Ct. App. 2000) (citing Ind. Code §

1 Father submitted evidence that he incurred a total of $1,582.17 in attorney fees in this matter. 4 31-14-13-6). By contrast, when modification is requested a petitioner has the burden of

showing a substantial change in one or more of the factors that courts consider to initially

determine custody under Indiana Code Section 31-14-13-2 and that modification is in the

child’s best interests. Id.

Here, Father’s counsel expressly stated to the court that he was requesting a

modification of custody, not an initial custody determination. Thus, Father bound

himself to the stricter burden of proof required of a custody modification as opposed to

an initial determination. See Werner v. Werner, 946 N.E.2d 1233, 1245-46 (Ind. Ct.

App. 2011) (holding mother waived any claim of error that trial court applied incorrect

legal standard in determining child custody where she failed to object to trial court’s clear

statement before custody hearing of what standard it was going to use), trans. denied; see

also Winkler, 725 N.E.2d at 128 (holding father in paternity case was required to meet

custody modification burden where he had acquiesced for many years in mother having

custody of child, even though there was no existing court-ordered initial custody

determination).

We further note that when faced with a custody modification request, a trial court

ordinarily cannot consider any 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 interest of the child . . . .” I.C. § 31-14-13-9. This section does not apply,

however, when parents stipulate as to custody of the child and the trial court summarily

approves such an agreement without conducting a hearing on the matter. Dwyer v.

5 Wynkoop, 684 N.E.2d 245, 249 (Ind. Ct. App. 1997), trans. denied. Additionally, in such

a situation a trial court is not prohibited from considering evidence that had not

previously been brought to its attention. Id.

A decision whether to modify custody is within a trial court’s discretion. Rea v.

Shroyer, 797 N.E.2d 1178, 1181 (Ind. Ct. App. 2003). We may not reweigh the evidence

or judge the credibility of witnesses when reviewing a custody modification. Id. We

must consider only the evidence most favorable to the judgment and any reasonable

inferences from that evidence. Id. “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.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). “[O]ur 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.” Id.

Neither party here requested findings and conclusions from the trial court, but the

trial court did enter some findings sua sponte. Such findings control only the issues they

cover, and we apply a general judgment standard to any issue about which the court made

no findings. Rea, 797 N.E.2d at 1178. A general judgment entered with findings may be

affirmed based on any legal theory supported by the evidence. Gibbs v. Kashak, 883

N.E.2d 825, 827 (Ind. Ct. App. 2008). We presume the trial court followed the law. Rea,

797 N.E.2d at 1178. In order to reverse a custody modification, the evidence must

6 positively require reversal, even if the evidence might have supported another conclusion.

Best, 941 N.E.2d at 503.

Modifications of custody in the paternity context are governed by Indiana Code

Section 31-14-13-6, which provides that a court may not modify custody unless it “is in

the best interest of the child” and there has been a “substantial change” in one or more of

the factors that a court considers when initially determining custody. Those factors are:

(1) The age and sex of the child.

(2) The wishes of the child’s parents.

(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child’s parents;

(B) the child’s siblings; and

(C) any other person who may significantly affect the child’s best interest.

(5) The child’s adjustment to home, school, and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.

7 I.C. § 31-14-13-2.

Most of the evidence presented and some of the trial court’s sua sponte findings

focused upon K.D.’s schooling in Beech Grove. Specifically, Mother and Father agreed

to K.D. attending school in Beech Grove, beginning in the fall of 2009. For nearly two

years, before Mother lost her warehouse job, K.D. was spending a great deal of time at

Father’s house to facilitate her attending school. At the time of the hearing, Father was

living in a house in Beech Grove where he had already lived for several years, where he

planned to continue residing until K.D. graduated from school, and which was five

minutes away from K.D.’s school. Father also noted that K.D. has friends in the

neighborhood where he lives and that he lived across the street from his wife’s brother,

who could and had helped care for K.D. Mother, meanwhile, was living with her

grandmother approximately twenty-five minutes away from the school.

There was evidence of K.D. having attendance problems while in Mother’s care. 2

Furthermore, K.D. was struggling academically. There was evidence presented that

Father and his wife had been proactive in hiring a tutor to help K.D.; Mother said she was

intending to do so, but had not done so. Additionally, Mother removed K.D. from after-

school care program when she lost her job. Father disagreed with this decision because

he believed the program helped K.D. with her school work, as well as providing an

opportunity to socialize with friends.

2 Mother attempted to proffer legitimate reasons from these problems at the hearing, but it was up to the trial court to decide how much weight to give these explanations. 8 We conclude that this evidence is sufficiently related to a substantial change in

K.D.’s adjustment to home, school, and community, particularly once she began

attending school in the fall of 2009. Also, the evidence supports the conclusion that a

change of custody to Father was in K.D.’s best interests. Prior to the modification of

custody, K.D. was splitting time during the week between Mother’s and Father’s house,

whereas granting custody to Father permits K.D. to live in a home that is near to her

school, from which she can ride the bus to school and consistently live in one home

throughout the school week, and to become further rooted in the Beech Grove

community. There also was evidence from which it could be found that Father was more

proactive in attempting to address K.D.’s academic struggles.

We do note that the trial court’s order made no finding that there had been any

substantial change in any of the statutory custody factors. However, given that neither

party requested special findings and conclusions and that any findings the trial court did

make were purely gratuitous, it was not necessary for the trial court to make an express

finding of changed circumstances. We cannot second-guess the trial court’s assessment

that a modification of custody was warranted based on the evidence in the record. There

is sufficient evidence of a substantial change of circumstances, as well as that a

modification of custody was in K.D.’s best interests. The trial court did not abuse its

discretion in ordering that modification.

II. Attorney Fees

9 Next, we address Mother’s challenge to the trial court’s order that she pay $750

toward Father’s attorney fees. We review this award for an abuse of discretion. Matter

of Paternity of A.J.R., 702 N.E.2d 355, 364 (Ind. Ct. App. 1998). An abuse of discretion

occurs if a trial court’s order is against the logic and effect of the circumstances before

the court. Thompson v. Thompson, 868 N.E.2d 862, 870 (Ind. Ct. App. 2007).

Neither the trial court nor Father identified the basis for an award of attorney fees

in this case. Indiana generally adheres to the “American Rule” with respect to attorney

fees, meaning each party must pay his or her own attorney fees absent an agreement

between the parties, statutory authority, or a rule to the contrary. Fackler v. Powell, 891

N.E.2d 1091, 1098 (Ind. Ct. App. 2008), trans. denied. Indiana Code Section 31-14-18-2

does permit a trial court to order one party in a paternity custody proceeding to pay the

other party “a reasonable amount for attorney’s fees . . . .” “In making such an award, the

trial court should consider the parties’ resources, their economic conditions, and their

respective ability to earn an adequate income through employment.” Paternity of A.J.R.,

702 N.E.2d at 363. Additionally, in interpreting a similar attorney fees statute in the

dissolution context, we have held that a court “may also consider any misconduct on the

part of either of the parties that creates additional legal expenses not otherwise

anticipated.” Thompson, 868 N.E.2d at 870.

Here, we can discern no equitable basis upon which to order Mother to pay a

portion of Father’s attorney fees. Mother was unemployed at the time of hearing and was

earning considerably less in unemployment compensation income than Father’s monthly

10 income from his steady full-time employment. Although Father points out Mother was

living mortgage- and rent-free with her grandmother at the time of the hearing, Father by

contrast was married to a spouse who had her own income from full-time, longstanding

employment to supplement Father’s income. Father also states that Mother “was

contributing less to the support of the child” than he was. Appellee’s Br. p. 11. This

should not be a consideration in deciding whether to award attorney fees, given that

Father was under a court order to pay child support, not to mention the greater financial

resources available to him, and that Mother would have had the expected expenses

associated with having been K.D.’s custodial parent. Finally, Father directs us to nothing

in the record that would support a finding that Mother engaged in misconduct that led to

unanticipated additional legal expenses. In sum, we conclude the trial court abused its

discretion in ordering Mother to pay $750 towards Father’s attorney fees, given Mother’s

much lower income and more uncertain financial future and the absence of any evidence

of litigation misconduct. See Paternity of A.J.R., 702 N.E.2d at 364 (reversing award of

attorney fees in paternity case where parties’ incomes and earning abilities were “nearly

identical”).

Conclusion

We affirm the modification of custody of K.D. in favor of Father, but reverse

ordering Mother to pay $750 towards Father’s attorney fees.

Affirmed in part and reversed in part.

BAKER, J., and RILEY, J., concur.