In the Marriage of Albertson: Amanda Albertson v. William Albertson (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 28, 2018
• Docket: 18A-DR-441
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 28 2018, 11:06 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Nicholas F. Wallace Patricia L. Martin Leonard, Hammond, Thoma & Terrill Martin Law Offices, PC Fort Wayne, Indiana Angola, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Marriage of Albertson: September 28, 2018 Court of Appeals Case No. Amanda Albertson, 18A-DR-441 Appellant-Petitioner, Appeal from the Dekalb Circuit Court v. The Honorable Kurt Bentley Grimm, Judge William Albertson, Trial Court Cause No. Appellee-Respondent. 17C01-0903-DR-65

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 1 of 13 Case Summary [1] Amanda Albertson (“Mother”) and William Albertson (“Father”) are the

parents of J.A. and L.A. (collectively, the “Children”). Mother was initially

awarded custody of the Children. However, after Mother made a series of

unsubstantiated allegations of physical and sexual abuse against Father, Father

petitioned for and was granted custody of the Children. Mother was also

ordered to pay $13,125.00 of Father’s attorney’s fees. On appeal, Mother

contends that the trial court abused its discretion in modifying the prior custody

order, violated her procedural due process rights by considering certain

evidence, and abused its discretion by ordering her to pay a portion of Father’s

attorney’s fees. We affirm.

Facts and Procedural History [2] Mother and Father were married and are the parents of the Children. Their

divorce was finalized on February 18, 2011. Mother was granted custody of the

Children on February 12, 2012. After receiving custody, Mother and the

Children lived with her parents.

[3] On October 14, 2016, Father was granted expanded, unsupervised parenting

time with the Children. Shortly after Father began exercising his unsupervised

parenting time, Mother began making allegations of physical and sexual abuse

of the Children by Father. All of the allegations were investigated and found to

be unsubstantiated.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 2 of 13 [4] In May of 2017, Mother and Father each filed petitions seeking to modify the

existing custody and parenting time orders. The trial court conducted a two-

day hearing on the parties’ petitions on December 14–15, 2017. At the time of

the hearing, J.A. and L.A. were eight and six years old, respectively.

[5] On February 14, 2018, the trial court issued an order modifying custody and

awarding custody of the Children to Father. In its order, the trial court found

that (1) Father “is a fit father”; (2) Mother “is currently an unfit mother and

that she is consciously inflicting on her two boys what is in essence emotional

abuse to suit her own goals and objectives”; (3) “modification of custody is in

the best interests of [the Children] and … that if such modification does not

swiftly transpire irreparable damage will occur, if it has not already, to these

two young boys”; and (4) “parenting time with [Mother], if not carefully

supervised and controlled, would significantly impair the emotional

development” of the Children. Appellant’s App. Vol. II, p. 33.

Discussion and Decision [6] On appeal, Mother contends that the trial court abused its discretion in granting

Father’s request for a modification of custody and in granting custody to

Father. In making this contention, Mother argues that the evidence does not

support the trial court’s determination that a change of custody was in the

Children’s best interests. Mother also contends that the trial court violated her

procedural due process rights by considering certain evidence. Lastly, Mother

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 3 of 13 contends that the trial court abused its discretion in ordering that she pay

$13,125.00 of Father’s attorney’s fees.

I. Modification Order [7] “We review custody modifications for abuse of discretion with a preference for

granting latitude and deference to our trial judges in family law matters.” Kirk

v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (internal quotation omitted). Where,

as here, a trial court has entered findings of fact and conclusions thereon,

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. Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. 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. Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our 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.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations and quotations omitted).

“Therefore, on appeal it is not enough that the evidence might support some

other conclusion, but it must positively require the conclusion contended for by

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 4 of 13 appellant before there is a basis for reversal.” Kirk, 770 N.E.2d at 307 (brackets

and quotation omitted).

[8] Indiana Code section 31-17-2-21(a) provides that a trial court may modify a

child custody order if “(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.” The factors listed in

Indiana Code section 31-17-2-8 include:

(1) The age and sex of the child. (2) The wishes of the child’s parent or 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 parent or parents; (B) the child’s sibling; and (C) any other person who may significantly affect the child’s best interests. (5) The child’s adjustment to the child’s: (A) home; (B) school; and (C) 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 8.5(b) of this chapter. (9) A designation in a power of attorney of: (A) the child’s parent; or (B) a person found to be a de facto custodian of the child.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 5 of 13 [9] The trial court found that the evidence presented “demonstrates numerous

substantial changes in the factors identified in [Indiana Code section] 31-17-2-8

as illustrated in the Court’s findings of fact and the evidence presented shows

that a modification of custody in this case would be in the best interests of the

children.” Appellant’s App. Vol. II, p. 36. While the trial court did not specify

which factors had substantially changed, we have previously held it was not

necessary for the trial court to do so. See Nienaber v. Marriage of Nienaber, 787

N.E.2d 450, 456 (Ind. Ct. App. 2003) (noting that we had previously rejected

the argument that the court must specifically identify which of the statutory

factors had substantially changed). As such, we will affirm the trial court’s

order modifying custody so long as the evidence supports the trial court’s

conclusion.

[10] The record reveals that Mother has engaged in a pattern of behavior seemingly

aimed at controlling the proceedings in a manner intended to make any

interaction between the Children and Father appear stressful and harmful to the

Children. Court-Appointed Special Advocate (“CASA”) Lee Marki’s reports

and testimony indicated that Mother would occasionally prod the Children to

make statements about Father which appeared to be coached by Mother or

maternal grandparents. Throughout CASA Marki’s participation in the case,

Mother also displayed a reluctance to allow CASA Marki to speak to the

Children without her present. In addition, the trial court found that Mother

had “done little or nothing to assist” Father in rebuilding a relationship with the

Children and had shown a knowing, willful, intentional, and contemptuous

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 6 of 13 disregard for court orders regarding parenting time. Appellee’s App. Vol. II, p.

17.

[11] During the evidentiary hearing, the trial court heard significant testimony

relating to Mother’s numerous allegations that Father had both physically and

sexually abused the Children. Mother’s allegations were investigated by DCS

“on several occasions and in all cases were deemed unsubstantiated.”

Appellant’s App. Vol. II, p. 31. In addition, no action was taken after the

allegations were investigated by the State Police and the Steuben County

Sheriff’s Department. While one of Mother’s witnesses indicated that he

believed the allegations simply because they were made, even this witness

testified that he found no physical evidence of the claimed abuse. The trial

court noted that CASA Marki was of the opinion “that the allegations of sexual

abuse have been fabricated by [Mother] with the end goal of alienating Father

from his boys and ultimately removing him altogether from his children’s lives”

and “that Mother’s ongoing allegations of sexual abuse are having a damaging

and traumatic effect upon the emotional development of the [Children.]”

Appellant’s App. Vol. II, p. 31.

[12] The trial court also heard evidence that maternal grandmother, with whom

Mother and the Children lived, made negative comments to the Children about

Father prior to their visitation with Father. During one visit, J.A. told Father

that maternal grandmother had told him “that if someone was being mean to

him he was supposed to kick them in the nuts” and that Father “was being

mean.” Father’s Ex. 7, p. 13. During another visit, L.A. indicated that he

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 7 of 13 wanted to go home and “didn’t want to see [his] dad anymore” before

admitting that “that’s what my grandma told me to say.” Father’s Ex. 7, p. 16.

During yet another visit, J.A. hit Father with a fist and stated that Father was

being mean and maternal grandmother told him “that he should hit his dad

because he was mean.” Father’s Ex. 7, p. 17. J.A. also said that he did not

want to see Father and was going to run away from him “because Grandma

said.” Father’s Ex. 7, p. 17. CASA Marki indicated that she believed “the

negative and hurtful suggestions the [Children] state they have been given by

[maternal] grandma … have them, especially [J.A.], extremely confused.”

Father’s Ex. 7, p. 31.

[13] The trial court further noted that CASA Marki recommended that “custody be

transferred to [Father] to prevent further emotional damage to the children as

well as their relationship with their Father.” Appellant’s App. Vol. II, p. 31.

CASA Marki also recommended that the trial court consider a mental health

evaluation for Mother. The trial court found CASA Marki’s opinions to be

persuasive and correct when considered in light of the evidence coupled with

“the Court’s own observations as to presentment and demeanor of the

witnesses.” Appellant’s App. Vol. II, p. 32.

[14] Based on the above-discussed evidence, the trial court found that the allegations

of sexual and physical abuse by Father were false and were the result of

fabrication by Mother. The trial court further found that in fabricating

allegations of sexual abuse of the Children by Father, Mother “has engaged in a

consistent pattern of conduct designed to alienate [Father] from [the Children],

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 8 of 13 and the Court further finds that the conduct of [Mother] is currently

significantly impairing the emotional development of [the Children] and will

continue to do so if there is not intervention to accomplish cessation of the

conduct.” Appellant’s App. Vol. II, p. 32. For these reasons, the trial court

concluded that a change in custody was in the Children’s best interests. The

trial court acknowledged that the change in custody would likely have a

temporary negative affect on the Children in that they would have to change

schools, but determined that the short-term negative impact was outweighed by

the Children’s other interests.

[15] Upon review, we conclude that the trial court’s findings and conclusions are

supported by the record. As such, the trial court did not abuse its discretion in

granting Father’s request for a modification of custody or in awarding custody

to Father.

II. Procedural Due Process [16] Mother next contends that the trial court violated her procedural due process

rights by considering reports filed by CASA Marki after the close of the

evidence. Mother’s contention is perplexing because the trial court’s order

explicitly stated that the trial court did not consider the reports in question in

reaching its decision. Specifically, the trial court stated the following:

The Court would note that subsequent to the close of the evidence the Court received additional Department of Child Services reports filed by CASA volunteer Lee Marki. These reports relate to numerous additional claims of sexual abuse

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 9 of 13 being perpetrated by the father against his children. The reports indicate that all claims as they relate to the father were unsubstantiated and that the Department of Child Services did substantiate as against the mother Amanda Albertson for emotional abuse of her children. The reports indicate that the Department of Child Services has offered a plan of informal adjustment to the mother. These reports, while filed with the court, were not considered by the Court in reaching its decision as herein announced, and in fact this decision was already in rough draft form at the time the Court received these reports and the only impact upon this decision was the addition of this footnote and the dealing with the subsequent motions generated by this filing.

Appellant’s App. Vol. II, p. 31. Later in its order, the trial court again

reiterated that it “did not consider the CASA filing in question in rendering this

decision.” Appellant’s App. Vol. II, p. 39. Given that the trial court’s explicit

statements that it did not consider the reports in question, we conclude that

Mother’s claim is without merit.

III. Attorney’s Fees [17] In reviewing a trial court’s award of attorney’s fees, we apply an abuse of discretion standard. A trial court has wide discretion in awarding attorney’s fees. We will reverse such an award only if the trial court’s award is clearly against the logic and effect of the facts and circumstances before the court. The trial court may look at the responsibility of the parties in incurring the attorney’s fees. Furthermore, the trial judge possesses personal expertise that he or she may use when determining reasonable attorney’s fees.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 10 of 13 Mason v. Mason, 775 N.E.2d 706, 711 (Ind. Ct. App. 2002) (internal citations

omitted).

[18] In awarding attorney’s fees, the trial court found as follows:

Because the Court has found that the issues presented arose due to the deliberate fabrication of false accusations against [Father] by [Mother], designed to thwart and prevent [Father]’s parenting time with his children, the Court finds that an award of attorney’s fees is appropriate in this case. [Mother] shall pay to [Father] the amount of $13,125.00 towards [Father]’s attorney’s fees in this matter. This attorney fee amount shall be a judgment as against [Mother] in favor of [Father].

Appellant’s App. Vol. II, p. 38.

[19] The parties filed competing requests for attorney’s fees. Father’s request

indicated that he owed $17,259.88 in fees. Mother’s request indicated that she

owed $39,549.60 in fees. Mother challenges the trial court’s award of attorney’s

fees to Father, claiming that the trial court failed to hold a hearing on her ability

to pay.

[20] The Indiana Supreme Court has noted that in determining an award of

attorney’s fees, the trial court shall consider the “resources of the parties, their

respective economic circumstances, and their ability to engage in gainful

employment and earn adequate income.” Masters v. Masters, 43 N.E.3d 570,

576 n.8 (Ind. 2015). A trial court may also consider factors bearing on

reasonableness including, for example, “which party initiated the action,

whether fees and expenses were incurred due to a party’s misconduct, and the

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 11 of 13 ability of the party to pay.” Id. at n.8. Thus, contrary to Mother’s claim, the

trial court could, but was not required to, consider her ability to pay when

entering the award of attorney’s fees for Father. See id. at n.8 (providing that

the trial court “may” consider the ability of a party to pay).

[21] The record reveals that the trial court considered the parties’ economic

circumstances and employment potential. During the hearing, the parties

presented evidence relating to their respective employment and income. The

trial court also considered that most, if not all, of Father’s fees were incurred

because of Mother’s behavior. Again, the trial court noted during the

proceedings that Mother demonstrated a knowing, willful, intentional, and

contemptuous disregard for court orders. The trial court also noted Mother’s

decision to levy numerous false accusations of physical and sexual abuse

against Father, all of which had to be investigated and defended by Father.

Mother’s decision to make these repeated false accusations amounted to

misconduct and necessitated further proceedings. As such, we cannot say that

the trial court abused its discretion in ordering that Mother pay $13,125.00 of

Father’s attorney’s fees.

Conclusion [22] In sum, the trial court did not abuse its discretion in modifying the custody

award to grant custody of the Children to Father or in ordering Mother to pay

$13,125.00 of Father’s attorney’s fees. The trial court also did not violate

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 12 of 13 Mother’s procedural due process rights as it explicitly stated that it did not

consider the challenged evidence.

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

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018 Page 13 of 13