In the Matter of Paternity: Of the Unborn Child of C.C. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 6, 2016
• Docket: 65A01-1603-JP-626
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 06 2016, 8:06 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 ATTORNEYS FOR APPELLEE Yvette M. LaPlante B. Michael Macer Keating & LaPlante, LLP Benjamin R. Aylsworth Evansville, Indiana Biesecker Dutkanych & Macer, LLC Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of Paternity: October 6, 2016

Of the Unborn Child of C.C. Court of Appeals Case No. 65A01-1603-JP-626 Appeal from the Posey Circuit Court The Honorable Jeffrey T. Shoulders, Special Judge Trial Court Cause No. 65C01-1107-JP-149

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 1 of 11 STATEMENT OF THE CASE

[1] Appellant-Respondent, Cheyenne Vancamp (Mother), appeals the trial court’s

Order, granting primary physical custody of the minor child, E.O. (Child), to

Appellee-Petitioner, Joseph O’Neil (Father).

[2] We affirm.

ISSUE

[3] Mother raises one issue on appeal, which we restate as follows: Whether

Father established a substantial change in circumstances warranting the

modification in physical custody of the Child.

FACTS AND PROCEDURAL HISTORY

[4] Father is the natural parent of E.O., born on December 19, 2011. Prior to

E.O.’s birth, on July 25, 2011, a paternity case was initiated and paternity was

subsequently established on January 5, 2012. On September 26, 2012, the trial

court entered an Agreed Entry, establishing Mother as the primary physical

custodian, and instituting joint legal custody. Father was awarded parenting

time pursuant to the Indiana Parenting Time Guidelines and ordered to pay

child support in the amount of $100 per week. At that time, Father resided in

Mt. Vernon, Indiana, while Mother initially lived in Indianapolis, Indiana. She

subsequently moved to Ft. Wayne, Indiana in 2014.

[5] After giving birth to E.O., Mother completed a degree in nursing. Between

E.O.’s birth and the current proceedings, Mother has been employed by several

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 2 of 11 different organizations. However, at the time of the hearing, Mother had been

employed by Parkview Health Network for the past year. She works three

twelve-hour shifts from 3:00 p.m. until 3:00 a.m. per week. While Mother is at

work, E.O. and her three younger half-siblings are cared for by a nanny in

Mother’s house. In early 2012, Mother began dating and became engaged, but

never married, to a man who fathered her son. In October of 2014, after the

relationship with her fiancé ended, Mother started to date and eventually

married a man she had known since high school. A set of twins was born

during the marriage, which subsequently ended in divorce. Throughout these

relationships, Mother and Father were sporadically romantically involved.

[6] Prior to the birth of E.O., Father petitioned the court to establish paternity and

has been involved in her life ever since. After returning to Mt. Vernon in 2012,

Father has lived in the same residence and has held the same employment for

two years prior to the date of the hearing. Father works seven days out of 14

and is off work by either 5:00 p.m. or 7:00 p.m., depending on his start time. At

the time of the current proceedings, Father had adjusted his work schedule to

only having to work two days in the week when he has parenting time with

E.O. When Father needs a babysitter, his parents care for E.O. Father enjoys a

close relationship with his parents, which is reflected in E.O.’s warm

relationship with her grandparents. E.O. is also close to Father’s sister, with

whom she shares an interest in horses and other animals.

[7] On July 18, 2013, Mother filed a petition to modify parenting time. On August

19, 2013, Father filed an information for contempt and petition to modify,

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 3 of 11 asserting that Mother had moved twice since the Agreed Entry of September

26, 2012 without providing him notification pursuant to Ind. Code § 31-17-2.2-

1, and requesting a change in custody. On December 23, 2013, the parties

reached an agreement on the modification in parenting time and a minute entry

in the chronological case history reflects that the parties would submit an

agreed entry to the trial court for approval. On October 29, 2014, Father filed

another petition for contempt and a supplemental petition to modify and

request for emergency hearing, in which he again requested a change of

custody. However, no parenting time agreement was entered until October 30,

2014, which established that the parties would alternate weeks parenting E.O.

The agreement was silent as to any modification to the primary physical

custodian. On December 15, 2014, Mother filed a motion to strike the agreed

parenting time agreement entered the previous October. In a telephonic

conference that same day, the trial court held that the October 30, 2014 order

would remain in effect and that any additional matters would be heard on

February 23, 2015.

[8] On January 20, 2016, the trial court conducted a hearing. At the hearing, both

parties agreed that the current parenting time schedule of alternating weeks

could not continue due to E.O.’s upcoming entry into kindergarten. At the

close of the evidence, the trial court took the matter under advisement. On

February 18, 2016, the trial court issued its ruling, concluding in pertinent part,

that:

I. Child Custody and Parenting Time

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 4 of 11 1. The [c]ourt after considering all of the relevant statutory factors finds that the parties shall remain joint legal custodians of the parties’ minor child.

2. The [c]ourt finds that a change in the parenting time division has become necessary due to substantial changes which have occurred. Specifically, a change in parenting time is necessary because the current schedule of equal time is not feasible when the [C]hild begins school in the fall next school year due to the distance involved with Mother living in Ft. Wayne and Father living in Mt. Vernon.

3. The [c]ourt after considering all of the relevant factors including those set out in I.C. [§] 31-17-2-8 finds that it is in the best interests of the child that [Father] shall have primary physical custody of the parties’ minor child with Mother having parenting time pursuant to the Indiana Parenting Time Guidelines where distance is a factor.

4. The [c]ourt finds that Mother has repeatedly changed residence and employment over the last few years whereas Father has maintained a more stable residence and employment.

5. Further the [c]ourt finds that Mother has other children including newborn twins. Furthermore Mother regularly works through the night on 12 hour shifts, which requires her to place the [C]hild in the care of others overnight on a regular basis and for other significant periods of time. All of which makes it difficult for her to care for this [C]hild.

6. Further the [c]ourt finds that the close relationship of the [C]hild with Father’s family and the stability the [C]hild gets in his care were factors in the [c]ourt’s decision.

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 5 of 11 7. Although the [c]ourt finds that this ruling may negatively impact the relationship with this [C]hild and her other siblings, this factor is outweighed by the overall best interests of the [C]hild and the stability that Father can provide.

(Appellant’s App. pp. 10-12). On March 21, 2016, Mother filed a motion to

stay appeal, which was denied after an evidentiary hearing.

[9] Mother now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[10] We review a custody modification for an abuse of discretion with a “preference

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

re Paternity of T.P., 920 N.E.2d 726, 730 (Ind. Ct. App. 2010) (quoting In re

Paternity of K.I., 903 N.E.2d 453, 457 (Ind. 2009)), trans. denied. We understand

that appellate courts “are in a poor position to look at a cold transcript of the

record, and conclude that the trial judge . . . did not properly understand the

significance of the evidence, or that he should have found its preponderance or

the inference therefrom to be different from what he did.” Kirk v. Kirk, 770

N.E.2d 304, 307 (Ind. 2002) (citation omitted). Accordingly, “[o]n appeal it is

not enough that the evidence might support some other conclusion, but it must

positively require the conclusion contended for by appellant before there is a

basis for reversal.” Id. Thus, “[t]he burden of demonstrating that an existing

custody arrangement should be modified rests with the party seeking the

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 6 of 11 modification.” In re Paternity of A.S., 948 N.E.2d 380, 386 (Ind. Ct. App. 2011).

This court will neither reweigh the evidence nor assess witness credibility, and

we will consider only the evidence that directly or by inference supports the trial

court’s judgment. Parks v. Grube, 934 N.E.2d 111, 114 (Ind. Ct. App. 2010).

II. Modification of Custody

[11] Mother contends that the trial court abused its discretion in modifying the

custody determination by granting Father sole physical custody over their

Child.

[12] Following the establishment of paternity, “[t]he [trial] 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 or more of the factors that the

court may consider under [Indiana Code section 31-14-13-2].” 1 Ind. Code § 31-

14-13-6. These factors include:

(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.

1 Both parties cite Ind. Code §§ 31-17-2-21 and 31-17-2-8. These statutes govern the modification of custody in dissolution actions. Custody determinations in paternity actions are governed by Article 14 of Title 31. Although the parties’ citations to Article 17 are incorrect, their argument is unaffected as the legal standards included in Article 14 are, in pertinent part, identical to those in Article 17.

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 7 of 11 (4) The interaction and interrelationship of the child with:

(A) the child’s 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 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.

[13] The initial custody modification was entered on September 26, 2012,

establishing Mother as the primary physical custodian, with Father receiving

parenting time. On August 19, 2013, Father filed a petition, requesting a

change in custody. On October 29, 2014, Father filed another petition for

contempt and a supplemental petition to modify and request for emergency

hearing, in which he again requested a change of custody. On October 30,

2014, after the parties submitted an agreed entry, the parenting time schedule

was changed to reflect the parents caring for E.O. on alternating weeks. The

agreement was silent as to any modification in the physical custody

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 8 of 11 arrangement. After a hearing on January 20, 2016, the trial court granted

primary physical custody to Father.

[14] Despite Mother’s contention that the only decision requested by the parties

related to parenting time in order to accommodate E.O.’s entry into

kindergarten, the record reflects that a request for modification of physical

custody had been made twice by Father and was pending before the trial court

at the time of the hearing in the current proceedings. Accordingly, by its Order

of February 18, 2016, the trial court issued a ruling on child custody and

parenting time. We find no merit in Mother’s claim that “the trial court’s order

clearly identified a change in circumstances that affects the division of parenting

time, but fails to identify a change that would affect the custodial agreement.”

(Appellant’s Br. p. 12). When interpreting the custody modification statute, our

court explained that the statute does not require the trial court to specify which

factor or factors has substantially changed. Kanach v. Rogers, 742 N.E.2d 987,

989 (Ind. Ct. App. 2001). Instead, the trial court “must ‘consider’ the statutory

factors and find there has been a substantial change.” Id.

[15] Here, under the heading “Child Custody and Parenting Time,” the trial court

first considered a change in parenting time “due to substantial changes” and

then continued that based on “the best interests of the child” Father should be

awarded primary physical custody. (Appellant’s App. p. 10). “[C]onsidering

all of the relevant factors including those set out in I.C. § 31-[14-13-2],” which

addresses the statutory requirements for a custody modification, the trial court

granted a change in custody due to Mother’s frequent changes in residences and

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 9 of 11 employment, Mother’s current hours of employment, and Father’s family and

stability. (Appellant’s App. p. 10).

[16] While the trial court’s order does not amount to an exercise in clarity, we agree

that a significant change has occurred since the initial order, which warrants a

modification of physical custody. Specifically, in light of E.O.’s age and entry

into kindergarten, a schedule whereby both parents alternate weeks parenting

E.O. is no longer feasible. See In re Paternity of C.S., 964 N.E.2d 879, 884 (Ind.

Ct. App. 2012) (child’s readiness to enter kindergarten was a substantial change

in circumstances warranting modification of child custody), trans. denied.

[17] Furthermore, the record supports that Mother has changed residences,

employment, and relationships frequently in the last couple of years, resulting

in instability for E.O. Mother neglected to inform Father of her changes in

residence and he “always found out months later.” (Transcript p. 82).

Evidence was presented that Mother works long hours, including overtime, as a

nurse, while E.O. is being cared for by nannies overnight in Mother’s residence.

[18] On the other hand, Father is invested in his current residential area and

community, with Father’s family living in the vicinity. Father has stable

employment, with flexible hours which allow him to spend a significant

amount of time with E.O. When Father is not available to care for E.O.,

Father’s parents and family members spend time with the Child. E.O.’s

established relationship with Father’s family result in an extended support

network who all provide nurturing, support, and regularity for the Child.

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 10 of 11 Accordingly, Father is able to provide the child with predictability and stability

as she becomes increasingly engaged academically and socially.

[19] Based on the evidence presented and E.O.’s pending entry into kindergarten,

the trial court determined that a substantial change in circumstances has

occurred, which made it in E.O.’s best interest to grant primary physical

custody to Father. While the trial court was “impressed by the maturity in” the

parties’ professional lives and their parenting abilities in raising what “sounds

like [] a wonderful child,” ultimately, the balancing of the factors enumerated in

I.C. § 31-14-13-2 weighed in favor of Father’s stability with respect to home and

family and a modification of physical custody was in E.O.’s best interests. (Tr.

p. 123). Mindful of our deferential review, we affirm the trial court’s order.

CONCLUSION

[20] Based on the foregoing, we conclude that the trial court did not abuse its

discretion by modifying custody of E.O. and granting Father sole physical

custody.

[21] Affirmed.

[22] Bailey, J. and Barnes, J. concur

Court of Appeals of Indiana | Memorandum Decision 65A01-1603-JP-626 | October 6, 2016 Page 11 of 11