MEMORANDUM DECISION Jun 17 2015, 7:47 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as 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 ATTORNEYS FOR APPELLEE Debra Lynch Dubovich Michael A. Fish Levy & Dubovich M. Jill Sisson Merrillville, Indiana Valparaiso, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Paternity of N.W. June 17, 2015 Court of Appeals Case No. 45A03-1410-JP-376 M.A. Appeal from the Lake County Appellant-Respondent, Juvenile Court The Honorable Aimee M. Talian, Magistrate v. The Honorable Elizabeth G. Tegarden, Magistrate N.W., The Honorable Thomas P. Stefaniak, Jr., Judge Appellee-Petitioner. Cause No. 45D06-1204-JP-1040
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 1 of 23 Case Summary [1] In this paternity action, M.A. (“Mother”) appeals the trial court’s order
awarding legal custody and primary physical custody of No.W. (“Child”) to
N.W. (“Father”).
[2] We affirm.
Issues [3] Mother raises several issues for our review. We restate these as the single
question of whether the trial court’s decision to grant Father legal custody and
primary physical custody of Child was an abuse of discretion because
1. The evidence did not support the findings; 2. The findings did not support the judgment; and 3. The judgment was clearly erroneous.
[4] Father presents an issue for cross-appeal, namely, whether the trial court may,
upon Father’s motion after the conclusion of this appeal, take up Father’s
requests for attorneys’ fees and reapportionment of Guardian ad Litem fees.
Facts and Procedural History [5] Child was born on March 7, 2005 to Mother and Father, who were cohabiting
in a non-marital relationship. Father acknowledged his paternity of Child. At
some point, Father moved out of the residence. Father provided cash or other
payments to assist in Child’s support from the time Father left until around
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 2 of 23 February 2012. No formal orders concerning paternity, support, or parenting
time had been sought or obtained.
[6] In January 2012, Mother lived in Highland with Child, who attended school in
Highland; Father lived in Schererville. Father commenced a relationship with a
woman who became, by the time of the present proceedings, Father’s live-in
girlfriend. On February 21, 2012, Mother refused to permit Father any further
contact with Child. In response, Father ceased making any payments for
Child’s support.
[7] On April 3, 2012, Father filed a Verified Petition to Establish Paternity of
Minor Child. In the petition, Father sought joint legal and physical custody of
Child. (Appellee’s App’x at 1-2.) Despite filing the petition, Father did not
see Child until June or July 2012.
[8] After an initial hearing, an order was entered on October 15, 2012, effective
nunc pro tunc to July 16, 2012. The court recognized Father’s paternity of Child.
The court also granted mother temporary custody of Child, subject to Father’s
parenting time rights under the Indiana Parenting Time Guidelines. The court
granted Father temporary parenting time to consist of two overnight visits with
Child on alternating weeks; one weekday visit with child for up to four hours,
with Child to be returned to Mother by 9:00 p.m.; and any other parenting time
Mother and Father might otherwise have agreed to. Because Father worked
weekends as a chef, Father was to submit to Mother his work schedule together
with any request for parenting time, so that the parties could arrange for
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 3 of 23 Father’s visitation with Child. Transportation duties and expenses were to be
shared by both parents. Father was also ordered to pay weekly child support of
$101.44, and the order allocated insurance and payment of costs associated
with Child’s medical care.
[9] Mother denied Father parenting time or any other opportunity to see Child on
or around Halloween in 2012. This began another period during which Father
was not permitted by Mother to see Child, and Father was denied visitation
during both Thanksgiving and Christmas. Mother gave various explanations
for denying parenting time to Father, including allegations that Father and his
girlfriend were verbally abusive toward Child, and that Father was consistently
late in picking up or dropping off Child from various locations. Mother
claimed that Father’s interactions with Child caused Child to become extremely
distressed, and thus Mother permitted Child to decide not to leave with Father
for parenting time under the initial hearing order of October 15, 2012.
[10] Due to the conflict over parenting time, Julie Demange (“Demange”) was
appointed to serve as a Guardian ad Litem in the case. Demange inquired into
the reasons for Child’s resistance to participating in parenting time. Concluding
that Father’s occasionally rough parenting played a role, Demange met with
Father, who agreed to address concerns about his parenting style. Demange
also served as an intermediary between Mother and Father in coordinating
parenting time during portions of 2013.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 4 of 23 [11] Nevertheless, before March 2013 Father saw Child once, in February 2013,
when Mother agreed to permit Father to see Child after Child expressed interest
in receiving Father’s Christmas gifts. Child acknowledged that Father’s
parenting style improved, and reported enjoying spending time with Father.
Eventually, however, Mother and Father agreed to a parenting time schedule
for the summer of 2013, during which they would alternate weeks.
[12] The first week of parenting time for Father began with difficulty, including a
scheduling problem with Mother that prevented Father from seeing Child for
several days. Child also cried for significant portions of the first night with
Father, but eventually calmed down. During that first night, however, Child
called Mother, who said she would come retrieve Child; Mother never did so,
however.
[13] Inquiring into these events, Demange discussed the situation with Child, who
appeared to believe that his participation in parenting time was optional and
that he could go back to Mother’s home when he wished. Mother’s interactions
with Demange took an adversarial turn at times, including regular and repeated
allegations that Father had abused Child. Mother stated to Demange, “I will
never do anything to help foster the relationship between [Child] and his
biological father.” Tr. at 27.
[14] Subsequent weeks of extended parenting time during summer 2013 were also
difficult. Mother had filed a petition to change Child’s last name, seeking either
to have Child’s last name changed to hers or at least to be hyphenated, despite
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 5 of 23 having agreed with Father earlier in their relationship to give Father’s last name
to Child. Yet upon taking Child to camp in summer 2013, Father learned that
Mother had registered Child under Mother’s last name.
[15] During the school year, Mother refused to permit Father to pick Child up from
school, and instead had Child go to a babysitter who watched a number of
other children. 1 When she did permit Father to pick up Child, Mother
nevertheless would not agree to inform the school that Father was permitted to
do so. Thus, Child would have to walk off of the school campus and meet
Father off school grounds.
[16] Mother’s interactions with Father were frequently marked with threats to call
police. On at least one occasion, Mother called police to perform wellness
checks on Father and Child during Father’s parenting time.
[17] Extended parenting time was also attempted during summer 2014. Child
stayed with Father for a few days after school ended for the summer, and spent
the second full week of summer break with Father. Father never had parenting
time or contact with Child for the rest of the summer. Father would request
parenting time in a general way, and Mother would not respond. Only in late
July, when Father made a highly specific request for parenting time on a
specific day for a specific range of time, did Mother respond to Father or agree
to allow him to pick up Child. Even at this point—with what Mother
1 In her testimony, Mother stated she did not know whether the babysitter was a licensed childcare provider.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 6 of 23 considered to be a proper request—Mother threatened Father with police
involvement, saying that “[t]he police do not care about your incoherent
rambling.” Ex. 10.
[18] As a result, Mother agreed to allow Father to pick up Child on August 3, 2014,
from 8 a.m. until 8 p.m. Father arrived at around 7:30 a.m. to pick Child up
from Mother’s home. Child refused to leave, speaking to Father through a
partially-open window. Father attempted to communicate through the window
with Mother, who did not respond to Father. Father also consulted with police,
who informed Father that they could not provide assistance.
[19] Beginning in November 22, 2013, the trial court heard testimony on the custody
and parenting time issues raised in Father’s petition, as well as on several other
pending matters involving child support, Mother’s petition to change Child’s
name, and Father’s petition to hold Mother in contempt of court for failing to
comply with the trial court’s order concerning parenting time. Testimony was
heard on November 22, 2013, January 17, 2014, and January 24, 2014 by
Magistrate Elizabeth G. Tegarden.
[20] Magistrate Tegarden was unavailable to hear the remainder of the evidence at a
hearing set for August 14, 2014. The parties agreed Magistrate Aimee Talian
would preside over the final hearing day and, prior to that, would listen to the
audio recordings of the testimony conducted before Magistrate Tegarden.
Magistrate Talian listened to the audio recordings of the prior testimony and
then, on August 14, 2014, personally heard the remainder of Father’s
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 7 of 23 testimony, as well as all of Mother’s testimony. During her testimony, Mother
repeatedly insisted that she would not release her child into the care of an
abuser, referring specifically to her beliefs concerning Father’s conduct toward
Child and to Father’s prior encounters with law enforcement.
[21] On September 22, 2014, the court entered findings and conclusions on various
pending matters. The court found that Mother had repeatedly thwarted
Father’s efforts at exercising parenting time by refusing to cooperate with
scheduling of parenting time and scheduling child’s extracurricular activities
during Father’s parenting time. The court observed that Child appeared to
believe he could dictate the terms of parenting time with Father, an impression
the court found was the result of Mother’s interference with Father’s parenting
time. The court also found that Mother had engaged in “destructive and
deliberate” efforts to damage Father’s relationship with Child that amounted to
“parental alienation.” Appellant’s App’x at 23. The court found Mother’s
repeated allegations of abuse by Father to lack credibility, and found that
Father genuinely cared for child and had taken steps to improve his parenting
style.
[22] As a result, the trial court ordered that Father be awarded sole legal custody
and primary physical custody of Child. The court found this determination to
be in Child’s best interests, and to be “the only way to enable the child to
restore his relationship with Father with limited interference from Mother.”
Appellant’s App’x at 23. The court arranged parenting time as follows:
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 8 of 23 Mother is awarded … parenting time … [e]very other Thursday commencing at 6:00 p.m. continuing through Sunday at 6:00 p.m., and in those alternating weeks where Mother does not exercise weekend parenting time, she shall be entitled to parenting time Wednesday evening at 6:00 p.m. through Friday morning at 9:00 a.m. or the start of the school day, whichever is earlier. Each party shall be entitled to seven (7) consecutive days during the summer and the parties shall make their designation no later than April 1st of that year. The parties shall exercise holiday parenting time through strict adherence to the Indiana Parenting Time Guideline Schedule. Appellant’s App’x at 23.
[23] The court further ordered Father to begin individual therapeutic counseling
sessions for Child, with instructions that Mother and Father both participate as
recommended by Child’s therapist. Father was also encouraged to allow Child
to continue his extracurricular activities of swimming and music lessons. The
court denied Mother’s request to change Child’s name, and ordered Mother to
pay weekly child support and to continue providing Child’s primary health
insurance coverage. Finally, the court ordered the parties to submit additional
information regarding child support arrearages, and to participate in parenting
classes for high-conflict families.
[24] This appeal ensued.
Discussion and Decision Legal Standard [25] The Indiana Code provides statutory factors that trial courts must consider
when reaching a custody determination:
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 9 of 23 The court shall determine custody in accordance with the best interests of the child. In determining the child’s best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following: (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. Ind. Code § 31-14-13-2.
[26] Here, the trial court was presented with an initial custody determination. In
such cases, the court must “consider all evidence from the time of the child’s
birth in determining the custody arrangement that would be in the best interest
of the child.” In re Paternity of M.W., 949 N.E.2d 839, 843 (Ind. Ct. App. 2011).
[27] Child custody determinations rest within the trial court’s discretion, and we
review a trial court’s decision in such cases for abuse of that discretion. Blasius
v. Wilhoff, 863 N.E.2d 1223, 1229 (Ind. Ct. App. 2007), trans. denied. An abuse
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 10 of 23 of discretion occurs when the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before it or the reasonable inferences
drawn therefrom. Id.
[28] Here, the trial court entered findings of fact and conclusions thereon.
Reviewing findings and conclusions, we look to whether the evidence supports
the findings, and whether the findings support the judgment. Id. Unless there is
clear error, we will not set the judgment aside. Id. Findings of fact are clearly
erroneous when those findings lack any supporting evidence or reasonable
inferences from the evidence. Id. We will reverse a judgment for clear error
when the record contains no facts or inferences supporting the findings and
conclusions, so that “a review of the record leaves us with a firm conviction
that a mistake has been made.” Bowyer v. Ind. Dept. of Natural Res., 882 N.E.2d
754, 761 (Ind. Ct. App. 2008). In assessing the record, we do not reweigh
evidence or reassess the credibility of witnesses, and consider only the evidence
that favors the judgment. Id. We review conclusions of law de novo. Id.
Where, as here, the findings and conclusions were entered sua sponte, where the
court entered no findings, a general judgment standard applies and we may
affirm on any legal theory supported by the evidence. Samples v. Wilson, 12
N.E.3d 946, 950 (Ind. Ct. App. 2014).
[29] In her appeal, Mother draws the court’s attention to the procedural history of
this case, and argues that our ordinary standards of review do not apply.
Mother points to the change from Magistrate Tegarden to Magistrate Talian
during the course of the evidentiary hearing, and argues that this is akin to a
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 11 of 23 case in which the trial court had only a paper record before it from which to
decide the case. Accordingly, Mother argues, the proper standard of review to
employ here is de novo review of the trial court’s judgment.
[30] Mother relies here upon the Indiana Supreme Court’s decision in In re Adoption
of C.B.M., 992 N.E.2d 687 (Ind. 2013). In C.B.M., the trial court denied a
motion to set aside judgment of an adoption decree under Trial Rule 60(B)(7).
Id. at 691. In C.B.M., however, the trial court ruled “‘on a paper record without
conducting an evidentiary hearing.’” Id. (citing GKN Co. v. Magness, 744
N.E.2d 397, 401 (Ind. 2001)).
[31] Here, Magistrate Talian did not rely solely on a paper record. Magistrate
Talian presided over one day of testimony in person after listening to the audio
recordings of prior testimony presented before Magistrate Tegarden. These
recordings consisted of Demange’s testimony and a portion—but not all—of
Father’s testimony. Magistrate Talian was also presented in person with
testimony from Father and Mother, and conducted an in camera interview with
Child. Magistrate Talian was afforded an opportunity to observe testimony
from Father—whose testimony on August 14, 2014 was not substantially
different from his prior testimony—and from Mother. She was thus afforded
the opportunity to assess each parent’s credibility, was able to compare Father’s
testimony over multiple days with his testimony on August 14, and was able as
well not only to read but to hear testimony from Demange. We accordingly
find C.B.M. inapposite, and do not deviate from our previously-announced
standards of review.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 12 of 23 Findings in Light of the Evidence [32] On appeal, Mother contends that the evidence presented during the hearing did
not support the trial court’s findings. Mother identifies five findings of fact that,
she contends, are clearly erroneous and warrant reversal of the judgment.
[33] Mother first identifies a portion of Finding 8, which states, “Although, [Child]
told the school counselor that he wanted to see his father.” Appellant’s App’x
at 22. Mother contends that this is incorrect, and that even if correct it had no
bearing upon Child’s preferences for parental custody, since Child’s clear
preference as expressed through his behavior was to remain with Mother.
[34] As to the evidentiary grounding of Finding 8, we observe that Mother’s
argument disregards notes given to Demange by one of Child’s guidance
counselors. Those notes include the following: “Do you like going to see dad –
‘yes’ I wish I could see him more.” Ex. 4. And while Child’s preferences are a
factor in a custody determination, the trial court had discretion to weigh that
factor based in part upon Child’s age of less than fourteen years. 2 See I.C. § 31-
14-13-2(3). The trial court’s finding has support in the record, and we decline to
second guess the weight placed by the court’s upon Child’s wishes.
2 Child was not yet ten years old at the time of the trial court’s order awarding Father custody.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 13 of 23 [35] As to Finding 9, Mother contends that the portion of the finding that states,
“Mother disparages Father in the presence of [Child],” Appellant’s App’x at 23,
is without evidentiary support in the record. The entirety of the finding states:
Sadly, this child believes that he has the ability to make a choice as to whether or not to spend time with Father. [Child] believes that he is in charge. The Court believes this to be a result of mother’s destructive behavior and influence. Mother disparages Father in the presence of [Child]. Mother allows [Child] to choose when he will see his Father. Mother makes it incredibly difficult for Father to be involved in the minor child’s life. Appellant’s App’x at 22-23 (emphasis added).
[36] We agree with Mother that there is no evidence in the record establishing what
Mother says to Child. The single sentence Mother challenges, however, is of
little weight compared to the remainder of Finding 9, which finds ample
support in the record. Such evidence includes Demange’s testimony concerning
Mother’s statements that she would do nothing to encourage a relationship
between Child and Father, which Demange testified were “flabbergast[ing]” to
her in light of her experience practicing family law. Supportive evidence also
includes Father’s testimony concerning Mother’s obstruction of Father’s access
to information about Child’s education and extracurricular activities, and
Demange’s testimony concerning Mother’s promises to Child that she would
come get him if he wanted to leave Father’s home during parenting time.
[37] Mother’s communications with Demange discussed the idea that Child “wants
to come home and should be able to.” Ex. 3. Mother also stated that she
refused to allow Father to see child for Father’s Day “[b]ecause he is crying
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 14 of 23 hysterically that he doesnt [sic] want to go and im [sic] not forcing him to go
back to your prison.” Ex. 6. All this occurred despite the court-ordered nature
of the parenting time, and Mother repeatedly warned that she would involve
the police if Father was slightly late in picking up or dropping off Child from
activities. Ex. 3. Mother’s communications with Father were repeatedly
obstructive, as evidenced by her refusal to treat anything other than an
extremely specific request for parenting time as a proper request. Ex. 10.
[38] We accordingly find evidence in the record to support the substance of Finding
9. Mother’s arguments otherwise are, again, efforts to persuade us to
impermissibly reweigh evidence.
[39] Mother also challenges Finding 10, which states that Mother scheduled
activities for Child during designated parenting time without first consulting
Father, and that Mother “refused to allow Father parenting time for the entire
summer” in 2014. Appellant’s App’x at 23. Mother’s argument as to the first
part of the finding is that Father’s schedule as a cook was busy and
unpredictable; that is true, except for a long period of time during which Father
was out of work due to an injury.
[40] As to refusal of parenting time for the entire summer, after the third week of
summer 2014, Father did not receive responses from Mother to his open-ended
questions about parenting time. It was only when Father made a very specific
request for parenting time—naming a particular day and particular timeframe—
that Mother responded. Mother stated plainly: “‘When can I see my son’ is
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 15 of 23 not the appropriate way to request specific visitation time.” Ex. 10. And even
after permitting Father to see Child, Mother again threatened police
involvement: “I need to have documentation for the police to file yet another
police report when you decide to break our agreed upon visitation schedule yet
again.” Ex. 10.
[41] In all of this, Mother consistently refused to permit Father to have overnight
custody of Child, despite a provisional parenting time order calling for just such
custody. Whether “the entire summer” or “significant parts” of the summer are
at issue, the import is the same: the evidence supports the trial court’s multiple
conclusions that Mother repeatedly interfered with Father’s efforts to exercise
court-ordered parenting time. Again, we find no error.
[42] Mother also challenges Finding 11, which found that Mother “justifies her
conduct by raising allegations of emotional and physical abuse.” Appellant’s
App’x at 23. Mother draws our attention to testimony from Father and
Demange regarding Father’s sometimes rough interactions with Child when
Child would cry “uncontrollably where he can barely breathe at that point in
time.” Tr. at 261. Father acknowledged that he called Child “a little girl” at
times in order to calm Child down, and that “[s]ometimes [Child] sucks it up
and stops crying so we can actually have a conversation.” Tr. at 261. Mother
contends that this happened in more than one instance—indeed, she argues that
the record “was saturated with evidence establishing this was not an isolated
occurrence.” Appellant’s Br. at 20.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 16 of 23 [43] We note that Mother quotes statements from the transcript “since he was six or
seven” removed from context and, importantly, without direct citation to the
record. Appellant’s Br. at 20. We remind the parties that it is incumbent upon
them to provide direct citations to the record, and that issues upon appeal may
be waived when they would otherwise force this Court to “sift through a record
to locate error.” Wright v. Elston, 701 N.E.2d 1227, 1231 (Ind. Ct. App. 1998),
trans. denied; Ind. Appellate Rule 46(A)(8)(a). While Mother finds fault in
Father’s admission to having reevaluated his approach to parenting Child, the
trial court apparently viewed this favorably. And, importantly, the trial court
expressly rejected Mother’s oft-repeated contentions of abuse: “The Court does
not find Mother’s allegations of ongoing emotional and physical abuse to be
credible.” Appellant’s App’x at 23.
[44] We will not reweigh the court’s decision or reassess its credibility
determinations. We find no error in Finding 11.
[45] Finally, Mother challenges the correctness of Finding 15, which took notice of
Mother’s statements during the hearing on August 14, 2014 that she might
move closer to her employment and that this might necessitate Child changing
schools. Mother observes that her testimony to this effect did not indicate a
firm plan to move.
[46] Mother is correct as to the specific substance of her testimony. But her
observation that she twice previously filed notices of intent to relocate—neither
of which she followed through on—does little to reinforce her point. Moreover,
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 17 of 23 the trial court viewed Mother’s tentative plans to relocate in the broader context
of Father’s relationship with Child, namely, that changing custody would
necessitate a change in schools in any case. Simply put, the trial court gave
little weight to the question of Child’s integration into his existing school
environment, particularly given its assessment of Mother’s conduct vis-à-vis
Father’s parenting time rights. We will not second guess the court’s decision on
that point. We find no error in Finding 15.
Conclusions in Light of the Findings [47] We turn now to Mother’s contention that the trial court’s judgment was
unsupported by the findings. Mother’s argument centers on the premise that
any misconduct on her part was isolated and did not place Child at risk, and
that the trial court’s award of custody to Father amounts to punishment of
Mother.
[48] Where there is an existing custody order, it may not be modified “unless
modification is in the child’s best interests and a substantial change has
occurred.” In re Paternity M.P.M.W., 908 N.E.2d 1205, 1208 (Ind. Ct. App.
2009). Here, no such prior custody order existed. Nevertheless, we observe
that, “[g]enerally, cooperation or lack thereof is not appropriate grounds for
switching custody.” Id. Were a court to order that custody to be changed as a
result of failure to cooperate with a custody order, “it would impermissibly
punish a parent for noncompliance with a custody agreement.” Id. This
accords “with the supremacy of the child’s interest in permanence and stability
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 18 of 23 over a parent’s preferences.” Pierce v. Pierce, 620 N.E.2d 726, 730 (Ind. Ct. App.
1993), trans. denied.
[49] In reaching its order giving Father legal and primary physical custody of Child,
the trial court took note of and entered findings that Mother’s conduct
interfered with Father’s exercise of parenting time. But the court also took note
of the effect of Mother’s conduct upon Child’s relationship with Father, and
expressly relied upon that consequence of Mother’s conduct in its decision to
grant custody to Father. Challenging this, Mother addresses individual findings
in isolation, and treats the statutory factors as individual elements that dictate
one or another outcome in the case. Simply put, Mother’s argument asks that
we reweigh evidence and reassess credibility. We decline to do so.
[50] The trial court’s express basis in granting custody to Father was that it was in
Child’s best interest to restore a relationship with Father. The trial court
concluded from Mother’s conduct that this would not occur unless Father was
granted primary physical and sole legal custody of Child. The findings—which
we have concluded were not erroneous—support that conclusion.
Cross-Appeal [51] We turn now to Father’s issue upon cross-appeal, whether, upon remand, the
trial court may address his request for payment of his attorneys’ fees.
[52] In paternity cases, trial courts may, in their discretion, order a party to pay a
reasonable amounts for the costs of another party maintaining the paternity
action and for attorney’s fees. I.C. § 31-14-18-2(a). Father’s petition to Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 19 of 23 establish paternity requests that Mother pay his attorney fees. (Appellant’s
App’x at 26.) During the evidentiary hearing on the petition, both parties
presented testimony concerning their own attorneys’ fees, as well as those fees
associated with the work of Demange as Guardian ad Litem for Child. The
trial court did not, in its findings and conclusion, enter an award of attorneys’
fees or reapportion Guardian ad Litem fees for either party.
[53] Father did not, prior to the instant appeal, file a motion seeking clarification or
an additional ruling on his request for attorneys’ fees and reapportionment of
Demange’s fees as Guardian ad Litem. Father notes that, upon appeal, “[t]he
Court on Appeal acquires jurisdiction on the date the Notice of Completion of
Clerk’s Record is noted in the Chronological Case Summary.” App. R. 8.
“Once an appeal has been perfected to the Court of Appeals or the Supreme
Court, the trial court has no further jurisdiction to act upon the judgment
appealed from until the appeal has been terminated.” Schumacher v. Radiomaha,
Inc., 619 N.E.2d 271, 273 (Ind. 1993). “This rule facilitates the orderly
presentation and disposition of appeals and prevents the confusing and
awkward situation of having the trial and appellate courts simultaneously
reviewing the correctness of the judgment.” Southwood v. Carlson, 704 N.E.2d
163, 165 (Ind. Ct. App. 1999) (quotation marks omitted).
[54] Father contends that he was unable, as a result of Mother’s appeal, to file a
motion seeking the trial court’s ruling on his requests for fees, because this
Court had acquired jurisdiction before he filed a motion requesting a separate
ruling. However, Father contends that because the trial court’s order was silent
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 20 of 23 as to both his and mother’s petition for fees, the matter should remain open for
resolution by the trial court upon the conclusion of this appeal. Mother argues
that by failing to properly advance this argument in his Appellee’s brief, Father
waived his appeal. Mother further argues that the trial court implicitly denied
Father’s request for attorneys’ fees when it did not include in its order a finding
that Father was entitled to payment of his fees under Section 31-14-18-2.
[55] With respect to omitted findings and conclusions, our Indiana Supreme Court
has stated:
In considering the sufficiency of the findings of fact and conclusions of law to sustain the decision, we recognize the general rule (a) that this court must accept ultimate facts as stated by the trial court if there is evidence to sustain them, and (b) that where facts necessary to sustain the issues are not found by the trial court and the findings are silent as to such facts, they are regarded as not proved. Under such circumstances the law, in effect, implies negative findings as to such issues against the party having the burden of their proof. Miller v. Ortman, 235 Ind. 641, 665, 136 N.E.2d 17, 31 (1956) (footnotes
omitted); also McIntyre v. Guthrie, 596 N.E.2d 979, 983 (Ind. Ct. App. 1992);
Rogers v. City of Evansville, 437 N.E.2d 1019, 1026 (Ind. Ct. App. 1982).
[56] Here, the trial court did not enter findings or conclusions on Father’s request for
attorneys’ fees. None of the facts decided in the custody and child support
order had any relation to Father’s request. The trial court was “silent as to such
facts, [which] are regarded as not proved.” Id. A negative judgment has been
implied as a result, the effect of which is that the trial court determined that
Father was not entitled to payment of attorneys’ fees.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 21 of 23 [57] Father offers no argument as to the propriety vel non of that decision. He
instead argues only that the issue is still open, while acknowledging that he
failed to pursue any form of clarification of the court’s order before this Court
assumed exclusive jurisdiction over the case. Failure to provide cogent
argumentation and citation to the record and relevant authorities results in
waiver, and we conclude Father has waived that issue for our review. See App.
R. 46(A)(8)(a) (requiring cogent argumentation with citations to the record and
applicable law); Pierce v. State, Cause No. 78S05-1407-CR-460, Slip op. at 11
(Ind. May 12, 2015) (“[a] litigant who fails to support his arguments with
appropriate citations to legal authority and record evidence waives those
arguments for our review”).
[58] Accordingly, the question of attorneys’ fees is not subject to consideration at the
trial court upon conclusion of this appeal. Father has waived this Court’s
review of the merits of the trial court’s implied denial of the request for
attorneys’ fees and Guardian ad Litem fees reapportionment.
Conclusion [59] The trial court did not enter erroneous findings and conclusions, and it did not
abuse its discretion when it granted Father custody of Child. The trial court’s
silence as to Father’s request for attorneys’ fees and Guardian ad Litem fees
reapportionment amounted to denial of Father’s request; Father’s actions
waived our review, and the matter is not open for adjudication before the trial
court. We accordingly affirm the trial court’s order in all respects.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 22 of 23 [60] Affirmed.
Riley, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JP-376 | June 17, 2015 Page 23 of 23