In re: The Paternity of M.B. (Minor Child), By Next Friend, Briana L. (Wedding) Murawski v. Seth Logan Boyd (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 17, 2017
• Docket: 90A04-1704-JP-942
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 17 2017, 9:25 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Timothy Logan Michael H. Michmerhuizen Benson, Pantello, Morris, James & Barrett McNagny LLP Logan, LLP Fort Wayne, Indiana Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re: The Paternity of November 17, 2017 M.B. (Minor Child), Court of Appeals Case No. 90A04-1704-JP-942 By Next Friend, Appeal from the Wells Circuit Briana L. (Wedding) Murawski, Court The Honorable Kenton W. Appellant-Petitioner, Kiracofe, Judge v. Trial Court Cause No. 90C01-1208-JP-41 Seth Logan Boyd, Appellee-Respondent.

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 1 of 13 Case Summary and Issues [1] Briana Murawski (“Mother”) and Seth Boyd (“Father”) are the parents of M.B.

Mother appeals from the trial court’s order denying her motion to modify

custody, parenting time, and child support and ordering her to pay Father’s

attorney’s fees. Specifically, Mother raises two issues for our review, which we

restate as: whether the trial court abused its discretion in 1) denying Mother’s

motion to modify parenting time; and 2) ordering Mother to pay a portion of

Father’s attorney’s fees. Concluding the trial court did not abuse its discretion,

we affirm.

Facts and Procedural History [2] Father and Mother (collectively, “Parents”) have one child, M.B., who was

born in 2011. The trial court entered an order regarding the paternity, custody,

parenting time, and support of M.B. on December 10, 2012. Pursuant to that

order, Mother was awarded primary physical custody and the Parents were

granted joint legal custody. The court also adopted Father’s proposed parenting

time schedule:

Mon. Tue. Wed. Thur. Fri. Sat. Sun. Father – Mother Mother – Father Father – Mother Mother to 6:30 to 6:30 to 6:30 pm pm pm Mother – Father Father – Mother Mother – Father Father to 6:30 to 6:30 to 6:30 pm pm pm

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 2 of 13 [3] Since the 2012 order, both Parents have relocated, now living about one-half

hour apart. Mother has married and has a daughter with her husband. While

Mother formerly worked fluctuating hours at Walgreens, she has since acquired

full-time employment with the Indiana Department of Transportation and

obtained health insurance. Father is engaged and living with the mother of

their two children. He continues to work for his same employer but has

transitioned from second shift to third shift, Sunday night through Friday

morning.

[4] In 2015, M.B. began attending a pre-school Mondays, Wednesdays, and

Fridays from 9:00 until 11:30 in the morning. The school is about ten minutes

from Mother’s home and thirty minutes from Father’s home. Parents agreed

that M.B. should attend the same school for elementary, and M.B. began

kindergarten in the fall of 2017.

[5] On April 1, 2016, Mother filed a motion to modify custody, parenting time, and

child support seeking to end shared parenting time and obtain sole legal

custody, alleging that “continuous and substantial changes in circumstances”

had rendered the physical custody arrangement no longer in the child’s best

interest. Corrected Appendix of the Appellant, Volume II at 58. On November

28, 2016, Mother filed a motion for emergency modification, claiming “since

the date of the last court Order, the minor child has been placed in immediate

or irreparable harm in the care of [Father].” Id. at 67. Among other things,

Mother claimed that Father was not home with the child during parenting time,

that Father sleeps in the car while the child is in preschool, and that due to

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 3 of 13 Father’s inability to provide M.B. a set routine, she is often overly tired and has

developed behavioral issues.

[6] Father filed a response, and the trial court held a hearing on Mother’s pending

motions on March 24, 2017. At the hearing, Mother clarified that she was no

longer seeking sole legal custody and her request was only for parenting time

pursuant to the Parenting Time Guidelines.

[7] On March 31, 2017, the court entered its order finding that Mother had failed

to meet her burden and denied her motion for modification of custody,

parenting time, and child support, as well as her motion for emergency

modification. The court found that Father had incurred attorney’s fees in the

amount of $11,456.78, in relation to the motions filed by Mother, and ordered

Mother to reimburse Father $8,600.00. Mother now appeals.

Discussion and Decision I. Modification of Parenting Time A. Standard of Review [8] Modifications of parenting time are reviewed for abuse of discretion. Miller v.

Carpenter, 965 N.E.2d 104, 108 (Ind. Ct. App. 2012). We grant latitude and

deference to our trial judges in family law matters. Werner v. Werner, 946

N.E.2d 1233, 1244 (Ind. Ct. App. 2011), trans. denied. We consider only the

evidence favorable to the judgment and the inferences flowing therefrom. Id.

We do not reweigh the evidence or assess witness credibility. Id.

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 4 of 13 [9] The trial court entered findings of fact and conclusions thereon pursuant to

Indiana Trial Rule 52(A). We apply a two-tiered standard of review to such

cases. Marion Cty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216 (Ind.

2012). First, we determine whether the evidence supports the findings of fact

and second, we determine whether the findings support the judgment. In re

Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied.

Indiana’s appellate courts “shall not set aside the findings or judgment unless

clearly erroneous, and due regard shall be given to the opportunity of the trial

court to judge the credibility of the witnesses.” T.R. 52(A). “A judgment is

clearly erroneous if it applies the wrong legal standard to properly found facts.”

Kondamuri v. Kondamuri, 852 N.E.2d 939, 944 (Ind. Ct. App. 2006).

[10] Where, as here, the findings and conclusions are entered 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 trial court has not

found, and we may affirm a general judgment on any theory supported by the

evidence adduced at trial.” Sexton v. Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct.

App. 2011), trans. denied.

B. Modification of Parenting Time [11] Mother challenges the trial court’s denial of her petition to modify parenting

time arguing the court abused its discretion by applying an incorrect legal

standard.

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 5 of 13 [12] To begin, we note that Mother does not appeal the trial court’s decision

regarding custody. Mother withdrew her request to modify custody at the

hearing. Therefore, the only question posed to the trial court was one of

parenting time. The trial court made the following findings:

5. Under Indiana law, the Court may not modify a child custody order unless the modification is in the best interest of the child; and, there is a substantial change in one (1) or more of the factors that the court may consider under I.C. 31-17-2-8. See I.C. 31-17-2-21.

6. The Court finds that Mother has not met her burden and the Court now respectfully DENIES Mother’s Motion to Modify Custody and Parenting Time, as well as the Motion for Emergency Modification of Parenting Time.

Corrected App. of Appellant, Vol. II at 16.

[13] The trial court cited to Indiana Code section 31-17-2-21 (“dissolution custody

modification statute”), which states the requirements to modify a child custody

order following a dissolution. The statute states:

(a) The 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 (1) or more of the factors that the court may consider under section 8, and, if applicable, section 8.5 of this chapter.

Ind. Code § 31-17-2-21.

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 6 of 13 [14] Modifications of custody in the paternity context are actually governed by

Indiana Code section 31-14-13-6 (“paternity custody modification statute”), but

the substance of the two statutes are virtually identical.1 Both the dissolution

custody modification statute and the paternity custody modification statute

point to other statutes enumerating factors that a court shall consider in

determining the best interest of a child.2 Those statutes, Indiana Code section

31-17-2-8 and Indiana Code section Indiana Code section 31-14-13-2,

enumerate the same factors, with only one exception not applicable here. 3

[15] However, as noted, the issue before the trial court was one of parenting time,

not custody. Modifications of parenting time in the context of paternity, as

here, are governed by Indiana Code section 31-14-14-2. The statute provides

that, “The court may modify an order granting or denying parenting time rights

whenever modification would serve the best interests of the child.” Id. Thus,

while modifications of custody require a showing of the best interests of the

child and a substantial change, modifications of parenting time require only a

1 Indiana Code section 31-14-13-6 states:

(a) The 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 (1) or more of the factors that the court may consider under section 2, and, if applicable, section 2.5 of this chapter.

2 Indiana Code section 31-17-2-21 cites to Indiana Code section 31-17-2-8 while Indiana Code section 31-14- 13-6 cites to Indiana Code section 31-14-13-2. 3 Indiana Code section 31-14-13-2 does not consider the designation of a power of attorney. See Ind. Code § 31-17-2-8(9).

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 7 of 13 showing of the best interests of the child. Miller v. Carpenter, 965 N.E.2d 104,

110 (Ind. Ct. App. 2012).

[16] Mother contends that the trial court applied the standard for modification of

custody to the issue of parenting time:

[Mother] is not arguing that the court erred in weighing the evidence and drawing reasonable inferences per se, but rather that it erred in applying an incorrect standard to a controversy requiring “foremost consideration to the best interests of the child.”

Corrected Appellant’s Brief at 23.

[17] We agree that paragraphs 5 and 6 of the trial court’s order must be read in

conjunction and that the trial court did consider both a change in circumstances

and the best interests of the child regarding a modification of parenting time.

However, while parenting time is determined by a best interests of the child test,

if there is no change in circumstances it is difficult to show that the child’s best

interests are no longer served by the original order. Here, Mother argues there

is sufficient change to render a modification of parenting time in the best

interests of the child because the child recently began attending school, she is

older than when the existing parenting time was determined, and the distance

between the parties has increased. Further, Mother alleges the current

parenting schedule takes a physical toll on M.B., creating behavioral problems

and leaving her “miserable” and “wearing her thin.” Transcript, Volume II at

11-12, 44.

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 8 of 13 [18] We find sufficient evidence in the record to support the trial court’s judgment.

Because the trial court did not make any specific findings regarding parenting

time, and none were requested, a general judgment standard applies. Sexton,

946 N.E.2d at 1183. Furthermore, the trial court’s failure to make more

detailed findings is not an indication that the court failed to carefully consider

the evidence and correctly apply the law. See Baxendale v. Raich, 878 N.E.2d

1252, 1257-58 (Ind. 2008) (affirming the trial court’s modification of custody

where no specific findings were made but evidence in the record supported the

trial court’s decision).

[19] Mother has failed to demonstrate that a modification of parenting time is in the

best interests of the child. In the interest of stability and consistency, the current

parenting time schedule has been in place since December 2012, almost all of

M.B.’s life, and the parties successfully adhered to the schedule while M.B. was

in preschool three days a week. Father enjoys a good relationship with M.B.

and when Father is not with the child, M.B. is with Father’s fiancée. To the

contrary, if the modification in parenting time was granted, M.B. would spend

a significant amount of time with a babysitter while not in school. We therefore

find a rational basis for the court’s decision and there is no abuse of discretion.

See Meisberger v. Bishop, 15 N.E.3d 653, 656 (Ind. Ct. App. 2014).

II. Attorney’s Fees [20] Mother also challenges the trial court’s order requiring her to pay $8,600.00

towards Father’s attorney’s fees. We review a decision to award attorney’s fees

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 9 of 13 and the amount of any award for an abuse of discretion. Allen v. Proksch, 832

N.E.2d 1080, 1102 (Ind. Ct. App. 2005).

[21] Indiana Code section 31-14-18-2 permits a trial court to award attorney’s fees in

paternity actions. The statute provides:

(a) The court may order a party to pay:

(1) a reasonable amount for the cost to the other party of maintaining an action under this article; and

(2) a reasonable amount for attorney’s fees, including amounts for legal services provided and costs incurred, before the commencement of the proceedings or after entry of judgment.

Ind. Code § 31-14-18-2.

[22] In determining such award, the trial court should consider the parties’

resources, their economic conditions, their respective ability to earn adequate

income through employment, and other factors that bear on the reasonableness

of the award. Gillette v. Gillette, 835 N.E.2d 556, 564 (Ind. Ct. App. 2005). The

trial court may also look to the responsibility of the parties in incurring the

attorney’s fees. Mason v. Mason, 775 N.E.2d 706, 711 (Ind. Ct. App. 2002),

trans. denied. The trial court has broad discretion in awarding attorney’s fees.

Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App. 2015), trans. denied. “We

may reverse the trial court’s decision only if it is clearly against the logic and

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 10 of 13 effect of the circumstances before the court.” Thompson v. Thompson, 868

N.E.2d 862, 870 (Ind. Ct. App. 2007).

[23] The trial court made the following findings relevant to its grant of attorney’s

fees:

7. Court finds Father earns $914 per week and Mother earns $428 per week.

8. Father has two (2) subsequently born children and Mother has (1) subsequently born child.

***

11. Father shall pay Mother child support for the benefit of the child in the amount of $56.00 per week . . . .

14. Father incurred attorney fees in the amount of $11,456.78 in relation to the motions filed by Mother in this matter. The Court orders that Mother shall reimburse Father for $8,600.00 of said fees.

Corrected App. of Appellant, Vol. II at 16-17.

[24] Mother contends that the award was inappropriate due to the parties’

disproportional income. On this basis alone, Mother argues, the award of

$8,600.00 in attorney’s fees is inappropriate.

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 11 of 13 [25] We disagree. The record reveals ample evidence regarding the parties’ financial

conditions and we assume this information was considered when the court

awarded attorney’s fees. Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App.

2012), trans. denied. Although disparity in the parties’ income is a foremost

consideration in awarding attorney’s fees, the trial court must also look to

surrounding circumstances and evaluate a number of additional factors when

arriving at its decision. See Walters v. Walters, 901 N.E.2d 508, 515 (Ind. Ct.

App. 2009) (noting that a trial court “must consider [all] such factors . . . which

bear on the reasonableness of the award”).

[26] Here, Father is the sole breadwinner in his family while Mother’s husband

earns an income in addition to income Mother earns herself. Father has two

subsequent children and Mother has only one subsequent child. See Matter of

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

parties’ subsequent born children in determining reasonableness of attorney’s

fees award). Given these considerations and Mother’s responsibility for the

litigation, it was not an abuse of discretion to order Mother to pay a portion of

Father’s attorney’s fees.

Conclusion [27] For the reasons stated above, we affirm the trial court’s denial of Mother’s

motion to modify parenting time and order that Mother pay attorney’s fees.

[28] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 12 of 13 Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017 Page 13 of 13