MEMORANDUM DECISION FILED Aug 11 2016, 7:39 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Vincent M. Campiti Debra Voltz-Miller Nemeth Feeney & Masters, P.C. South Bend, Indiana South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of Paternity of August 11, 2016 N.S., Court of Appeals Cause No. 71A03-1512-JP-2172 K.H., Appeal from the St. Joseph Probate Appellant-Petitioner, Court The Honorable James N. Fox, Judge v. Cause No. 71J01-0101-JP-33
D.S., Appellee-Respondent.
Riley, Judge.
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 1 of 17 STATEMENT OF THE CASE
[1] Appellant-Petitioner, K.H. (Mother), appeals the trial court’s Order denying her
motion for modification of custody of her minor child, N.S. (Child), in favor of
Appellee-Respondent, D.S. (Father).
[2] We affirm.
ISSUE
[3] Mother raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion by denying Mother’s motion to modify child custody.
FACTS AND PROCEDURAL HISTORY
[4] The Child was born on January 15, 2001. On April 30, 2001, a petition to
establish paternity was filed, and the trial court entered an order for genetic
testing. On August 7, 2001, Father’s paternity was established with respect to
the Child, and Mother was awarded primary physical custody of the Child.
Following a petition to modify custody by Father in 2008, the trial court found
that there were substantial changes in circumstances which made the existing
custody arrangement unreasonable. Specifically, the CCS entry dated February
14, 2008, stated that Mother had interfered with Father’s make-up visitation
scheduled on the weekends of January 4, 2008 and January 11, 2008. It further
noted that in an effort to thwart Father’s make-up parenting time, on December
20, 2007, Mother contacted the Kokomo Police Department and filed a false
report which alleged that Father had placed the Child in his crawl space. A
search warrant was issued and officers were dispatched to Father’s home; Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 2 of 17 however, they found no evidence to suggest that Father had placed the Child in
the crawl space. Also, Mother had denied Father visitation on January 25,
2008, and on February 8, 2008. Lastly, there was a notation that Mother’s
mental state had deteriorated to the point that it was dangerous for the Child to
remain in her care. Accordingly, the trial court modified the custody
arrangement by granting Father primary custody of the Child. At the time that
order was entered, the Child was seven years old.
[5] On April 11, 2014, Mother filed a petition to modify custody. Mother
purported that there was continued conflict between Father and the Child.
Mother also claimed that the police had been called to Father’s home because
Father could not get the Child to take a shower. In addition, Mother asserted
that by the end of the Child’s summer, the Child, who was living with her at the
time, exhibited significant emotional upheaval since he had to continue living
with Father. In addition, Mother stated that the Child was older and he desired
to live with her. Also, Mother claimed that the Child had to leave his home
every night and sleep elsewhere since Father had to work at night.
[6] On August 18, 2014, the trial court issued an order appointing Racheal Friend
as Guardian Ad Litem (GAL) for the Child. On October 17, 2014, the GAL filed
a court-ordered psychological exam with respect to the Child. On April 6,
2015, the GAL filed her findings and attached the psychological exam
conducted by Robert McClurg, Ph.D. (Dr. McClurg). On April 17, 2015, the
trial court heard Mother’s petition to modify custody. The trial court heard
testimony from the GAL, and from the parties as well.
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 3 of 17 [7] Mother testified that Father physically abused the Child on at least two
instances. Specifically, Mother alleged that she saw some bruising on the
Child’s “upper chest area” and that Child had informed him that Father had
“grabbed him by the neck, [thrown] him down on the ground, and then picked
him up [by] his shirt and that’s how he got the marks . . . . In fact, I took a
picture of them.” (Tr. p. 55). Mother stated that she reported the incident to
the GAL. With regard to the second incident, Mother claimed that Father had
twisted the Child’s “nipples and it left another mark.” (Tr. p. 56). Mother
indicated that she saw marks because the Child liked walking around without
his shirt. Mother stated that she also reported that incident to the GAL.
[8] Mother also spoke about Father’s inability to communicate with her regarding
the Child’s summer-time parenting time schedule. As an example, Mother
stated that during a certain drop-off, she attempted to give Father her summer
schedule, but Father would not roll down his windows or accept the document
from her. Mother claimed that she asked the Child to read it out loud to
Father.
[9] In addition, Mother talked of the Child’s emotional well-being. At the time of
the trial, the Child was fourteen-years-old. Mother stated that the Child was
more mature, and could communicate more effectively. Mother alleged that in
April of 2014, she observed emotional changes with the Child. Mother asserted
the Child’s emotional behaviors were not present before. Specifically, Mother
stated that every Wednesday, after Father dropped off the Child to her for her
mid-week parenting time, the Child would be in low spirits. Mother stated that
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 4 of 17 she would take the Child out for dinner, and afterwards, the Child would
resume being his normal happy self. Furthermore, Mother claimed that the
interaction between the Child and Father was not at its best and that there was
tension between the two. Specifically, Mother testified that Father barely spoke
to the Child in the evening and that the two would have dinner in silence.
Mother also claimed that she did not experience any behavioral problems at her
house that Father encountered at his home with the Child. According to
Mother, due to the emotional turmoil that the Child experienced while residing
with Father, Mother alleged that the Child would at times fall violently sick.
Also, Mother claimed that in 2014, Father worked at night and the Child was
required to sleep elsewhere.
[10] With regard to Mother’s employment, Mother testified that she received an
associate of science and nursing in May 2014. Mother stated that she had been
in school for the past four years and that she remained unemployed throughout
that time. Even after having graduated from school, Mother claimed that her
employment was delayed since she contracted pneumonia. At the time of this
evidentiary hearing, Mother was studying for her nursing board exams and she
testified that she had a job interview scheduled and would probably secure
employment as a nurse in the next thirty to sixty days.
[11] Father testified that for the past eleven months, he worked from 10:30 p.m.-7:00
a.m. Father stated that he would drop off the Child either at his father’s or
sister’s house before going to work. On one of those days, as Father was
preparing to leave the house for work, Father told the Child to go to the car and
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 5 of 17 wait there while he turned off the lights. Instead of going to the car, the Child
stood in the corner of the doorway, and when Father turned off the lights, he
tripped and fell on the Child. Contrary to Mother’s claim, no bruising was
observed on the Child. As for the incident that involved the police, in May of
2014, the Child had refused to take a shower and Father picked out clothing for
the Child. The Child was upset and he informed Father that he would report
him to the police liaison the next day at school. Father testified that “I’m the
kind of person that let’s just call now, why wait until tomorrow.” (Tr. p. 42).
For that reason, Father handed the Child his cellphone and told him to go
ahead and call the police. When the police arrived, they talked to the Child
about “incorrigibility” and doing what Father was asking him to do. (Tr. p.
44).
[12] The GAL testified that in her interviews with the Child, the Child stated on
multiple occasions that he would rather live with Mother in South Bend,
Indiana, than with Father in Kokomo, Indiana. According to the GAL, the
Child had an easier relationship with Mother since Mother had a softer
parenting style approach as opposed to Father’s firmer approach. The GAL
further testified that Father’s firm and strict parenting style manufactured a lot
of anxiety for the Child. The GAL stated that the Child admitted that he at
times chose not to do his chores since he wanted to antagonize Father. Because
the Child wanted to live with Mother, the GAL noted that the Child was “being
defiant in order to get his own way.” (Tr. p. 26). According to the GAL, the
Child broke down easily when confronted with the possibility that he was going
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 6 of 17 continue living with Father. With respect to Mother’s assertions that Father
physically abused the Child on at least two occasions, the GAL interviewed the
Department of Child Services (DCS). The GAL testified that Mother’s
assertions were unsubstantiated. When asked if there was substantial change
that would justify modification of custody, the GAL concluded that for the
Child’s overall emotional health, he was better off living with Mother. In
addition, the GAL recommended that it was in the Child’s best interest to live
with Mother based on the fact that over the course of eight months, while the
GAL was involved in the case, the Child had an unwavering strong preference
to live with Mother.
[13] At the close of the evidentiary hearing, the trial court directed the parties to file
their proposed findings of fact and conclusions of law within twenty-one days.
On July 29, 2015, the GAL filed a status update stating that “the GAL wishes
to bring to the Court’s attention that the Kokomo[] school district begins its
new school year in approximately one week. Depending on the court’s ruling,
[the Child] will be beginning high school in either Kokomo or South Bend. The
GAL believes that a court ruling prior to the beginning of school . . . is in the
[Child’s] best interest.” (Appellant’s App. p. 62). On August 3, 2015, the trial
court entered an Order denying Mother’s petition.
[14] Mother now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 7 of 17 DISCUSSION AND DECISION
I. Standard of Review
[15] We review a trial court’s ruling regarding a request for modification of custody
for an abuse of discretion. In re Paternity of J.T., 988 N.E.2d 398, 399 (Ind. Ct.
App. 2013). We give considerable deference to trial courts in family law
matters, recognizing that they often must make “‘Solomon-like decisions in
complex and sensitive matters’” and that only trial courts are in a position “to
see the parties, observe their conduct and demeanor, and hear their testimony . .
. .” Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App. 2000) quoting
Speaker v. Speaker, 759 N.E.2d 1174, 1179 (Ind. Ct. App. 2001)), trans. denied.
In reviewing a custody modification ruling, we must not reweigh the evidence
or assess witness credibility and will only consider the evidence and inferences
most favorable to the trial court’s judgment. J.T., 988 N.E.2d at 400.
[16] Here, the trial court was requested to enter its findings of fact and conclusions
of law with respect to Mother’s motion to modify custody. When there is a
request for special findings and conclusions thereon, “we may affirm the
judgment on any legal theory supported by the findings.” Werner v. Werner, 946
N.E.2d 1233, 1244 (Ind. Ct. App. 2011). We are obligated not to substitute our
judgment for that of the trial court if any evidence or legitimate inferences
support the trial court’s ruling. Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011). In
order to reverse a trial court’s custody modification ruling, “‘it is not enough
that the evidence might support some other conclusion, but it must positively
require the conclusion contended for by the appellant before there is a basis for
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 8 of 17 reversal.’” Id. (quoting Kirk v. Kirk,770 N.E.2d 304, 307 (Ind. 2002)). “[I]t is
particularly difficult for a reviewing court to second-guess a situation that
centers on the personalities of two parents battling for control of a
child.” Kirk, 770 N.E.2d at 308.
[17] Mother argues on appeal that the trial court’s decision denying her modification
of custody is clearly erroneous. A court may not modify a child custody order
unless the modification is in the best interests of the child, Ind. Code § 31-17-2-
21(a)(1), and there is a substantial change in at least one of the following:
(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.
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 9 of 17 (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 . . .
I.C. § 31-17-2-8. We emphasize that a showing of a change in circumstances
regarding one or more of the above factors is not enough to warrant a
modification of custody; it must also be proven that modification is in the
child’s best interests. Joe v. Lebow, 670 N.E.2d 9, 22-23 (Ind. Ct. App. 1996).
[18] In the Order denying Mother’s petition to modify custody, the trial court
concluded that the claims of physical abuse by Father were unsubstantial by
DCS. In addition, the trial court concluded that the Child was safe with both
parents; he was doing well in school; and both parents’ families cared for the
Child. Although it noted the Child’s preference to live with Mother, it
concluded that there was no substantial change in the circumstances.
[19] Here, Mother’s chief arguments are centered on the fact that the Child
intimated his wish to live with her and the breakdown of the Child’s
relationship with Father. On Mother’s first argument, she states that because
the Child was fourteen years old at the time of the hearing, Indiana law
mandates that his preference be given “more consideration” by the trial court.
See I.C. § 31-17-2-8(3). Despite her argument, Mother concedes, and correctly
notes that “a change in the child’s wishes, standing alone, cannot support a
change in custody.” Williamson v. Williamson, 825 N.E.2d 33, 40 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 10 of 17 2005); see also In re Marriage of Sutton, 16 N.E.3d 481, 485 (Ind. Ct. App. 2014).
In Sutton, we noted that the supposition in Williamson to be
. . . somewhat out of sync with the language and interpretations of our current statute. See Ind. Code § 31-17-2-21 (“The court may not modify a child custody order unless . . . there is a substantial change in one (1) or more of the factors . . . ”) (emphasis added); In re K.I., 903 N.E.2d 453, 460 (Ind. 2009) (“[A] substantial change in any one of the statutory factors will suffice [to support a modification.]”). That said, we are cognizant that there are certain inherent dangers in allowing custody modifications to occur solely at the behest of a child. Suffice it to say, there is a host of potential factors and circumstances that could dictate whether a child’s wishes constitute a substantial change in circumstances and whether a modification would be in the best interests of the child where the sole basis for modification is the child’s preference.
In re Marriage of Sutton, 16 N.E.3d at 486.
[20] At trial, the GAL testified that during her contact with the Child, she observed
that the Child had “a steadfast preference for [Mother] and seemed to have
some real emotional issues and sort of [] toxic[] dealings” with Father. (Tr. p.
10). The GAL admitted that, at times, the Child chose not to do his chores
since he wanted to upset Father. Because the Child wanted to live with
Mother, the GAL noted that the Child was “being defiant in order to get his
own way.” (Tr. p. 26). The GAL’s overall opinion was that switching custody
with Mother would ease the Child’s emotional turmoil and also be in the
Child’s best interest. In addition, Dr. McClurg’s evaluation dated March 5,
2015, which was attached to the GAL report, stated that he interviewed both
parties and the Child. Dr. McClurg’s impression of the Child was that the
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 11 of 17 Child had a positive bond with Mother versus a somewhat distant and anxious
relationship with Father. Dr. McClurg in addition noted:
[The Child] basically identified a very positive emotional bond with [M]other versus a somewhat distant, anxious relationship with [] [F]ather. [The Child] seemed to express that he was more comfortable in [Mother’s] presence because of more predictability and less intensity. [The Child] also strongly stated that he had an exceptionally positive and close relationship with his maternal grandparents and misses more frequent contact perhaps almost just as much as he does []with [Mother]. In contrast [the Child] describes [Father] as being stricter whereas [Mother] is more “nice”. [The Child] feels that [Father] tends to be more physical in his punishment whereas [Mother] uses more talking or consequences in discipline. Also got the sense that [the Child] had more difficulty knowing how to read [F]ather emotionally. [The Child] described what appears to be some sarcastic humor or sarcasm, which [the Child] found very hard to interpret. [The Child] did, however, deny that [Father] ever hit him with a belt and the choke situation appears in his mind to not be clear whether it was intended that way or was truly an accidental trip, falling on top of him and grabbing him around the shoulders in the neck area when he fell on top of him and then pull him back up. [The Child] did also describe a positive relationship with the paternal grandparents.
****
In my clinical opinion I would close by saying that I do think that [the Child] is basically a very well-adjusted young man outside these issues regarding his parents. I think he is a very sensitive person who worries a lot about others and how they will respond to him. That seems to be what drives the emotionality and the tearfulness that [the GAL] was picking up on and myself observed as well. I do not feel that clinically it is anything specifically that has been egregious that has happened, but rather just an overall difference in response to the personality of [] [F]ather versus [] [M]other and different styles of relationships and different styles of discipline. However, I would recommend that [the
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 12 of 17 Child] could profit from some ongoing psychological therapy or counseling.
(Appellant’s App. pp. 59-60).
[21] All of the above brings us to Mother’s primary legal argument, which is that the
trial court did not place enough emphasis on the Child’s wishes to be in
Mother’s custody. No one disputes that the Child wanted to live with Mother;
however, as discussed in the foregoing, “there are certain inherent dangers in
allowing custody modifications to occur solely at the behest of a child.” In re
Marriage of Sutton, 16 N.E.3d at 486. Through the testimonies of Mother,
Father, and the GAL, all relevant factors pertaining to the Child’s wishes were
placed before the trial court. Despite the testimonies of the GAL and Mother
that the Child wanted to live with Mother, the evidence presented painted a
picture of a child who believed that being defiant would let him get his way—
i.e., to live with Mother. Mother admitted that Child had confessed that he, at
times, did not do his chores or do what he was asked to do while at Father
house. Here, the trial court was called upon to decide which placement would
be in the Child’s best interest. The evidence strongly suggests that the Child
was better placed with Father, as it would provide continuity and stability for
the Child.
[22] Not surprisingly, Mother places much emphasis on the GAL’s testimony and
report, who in her opinion, stated it would be in the Child’s best interest for the
Child to live with Mother. However, we find that the GAL’s testimony is
merely one item of evidence for the trial court to consider in reviewing all of the Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 13 of 17 pertinent factors for modifying custody. A trial court is not required to accept
opinions of experts regarding custody. Clark v. Madden, 725 N.E.2d 100, 109
(Ind. Ct. App. 2000).
[23] With respect to the Child’s emotional well-being, Mother testified that there
was a rift between Father and the Child, and that the Child was unhappy about
living with Father. Mother asserted that she had observed the Child being in
low spirits each time during the mid-week exchange. According to Mother,
after dinner and spending time with the Child, the Child would resume his
normal happy self. Furthermore, Mother stated that there was increased
friction between Father and the Child, and she referenced the incident where
the police were called to Father’s home when the Child refused to take a
shower. In addition, Mother claimed that Father barely spoke to the Child in
the evening and that the two would have dinner in silence. Mother also
claimed that she did not experience any behavioral problems that Father
encountered at his house with the Child. According to Mother, due to the
emotional turmoil that the Child experienced while residing with Father,
Mother purported that the Child would at times fall sick. Accordingly, Mother
stated that it would be in the Child’s best interest, based on the above, to start
living with her.
[24] We note that some of the relevant factors placed before the trial court are
equipoise. Both Mother and Father were loving and good parents. However,
both had different parenting styles. Father was stricter, while Mother was more
relaxed with her parenting style. The Child had arrived at the doorstep of
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 14 of 17 adolescence, and we understand that this is not only a physical growth but an
emotional growth. The GAL testified that the Child broke down easily when
confronted with the possibility that he was going to continue living with Father.
However, Dr. McClurg’s psychological report indicated that nothing egregious
had occurred, but the Child emotions was just a reaction or a response to the
difference in Mother’s and Father’s personality and parenting style. With
regard to Mother’s claim that Father physically abused the Child, those claims
were unsubstantiated by DCS, and the Child denied claims of abuse when
questioned by Dr. McClurg.
[25] Mother also argues that the trial court entered erroneous findings with regard to
her employment status and that she would have a hard time finding a sitter for
the Child while at work. Specifically, the trial court stated that Mother had
failed to obtain employment and had not offered any explanation for not
obtaining employment. In another finding, the trial court stated that Mother
complained about Father leaving the Child overnight with his family; yet, it
appeared to the trial court that Mother would also face similar trouble. We
agree with Mother that these two findings are erroneous. Mother explained her
reasons for being unemployed. The evidence shows that Mother was in school
for the past four years, and her employment was delayed after graduation since
she contracted pneumonia. At the time of this evidentiary hearing, Mother was
studying for her nursing board exams and she testified that she had a job
interview scheduled. No evidence was presented that Mother would work at
night and that the Child would have to sleep elsewhere at night.
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 15 of 17 [26] We agree with Mother that the two findings are erroneous based on the record;
however, we have held that “even an erroneous finding is not fatal to a trial
court’s judgment if the remaining valid findings and conclusions support the
judgment, rendering the erroneous finding superfluous and harmless as a matter
of law.” Curley v. Lake Cnty. Bd. of Elections & Registration, 896 N.E.2d 24, 32
(Ind. Ct. App. 2008) (quoting M.K. Plastics Corp. v. Rossi, 838 N.E .2d 1068,
1074 (Ind. Ct. App. 2005)), trans. denied. Here, several of the trial court’s
remaining, uncontested findings independently support its judgment that
primary custody of the Child should remain with Father.
[27] We reiterate that we “shall not set aside the findings or judgment unless clearly
erroneous,” and “[f]indings are clearly erroneous only when the record contains
no facts to support them either directly or by inference.” D.C. v. J.A.C., 977
N.E.2d 951, 954 (Ind. 2012). Furthermore, we do not reweigh the evidence or
reassess witness credibility. Id. In sum, looking only to the evidence and all
inferences favorable to the judgment, giving due regard to the opportunity of
the trial judge to personally observe the witnesses, and refraining from the
substitution of our view for that of the trial court, we find that the evidence is
not so lacking as to render the trial court’s judgment, denying Mother
modification of custody, erroneous.
CONCLUSION
[28] Based on the foregoing, we conclude that the trial court did not abuse its
discretion by denying Mother’s petition to modify custody.
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 16 of 17 [29] Affirmed.
[30] Kirsch, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Opinion 71A03-1512-JP-2172 | August 11, 2016 Page 17 of 17