In the Matter of the Paternity of Brogan Hensley, Megan Orcutt v. John Hensley (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 26, 2019
• Docket: 18A-JP-2758
• 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 Jun 26 2019, 8:55 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 Jeffrey A. Flores Flores Law Office Madison, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of June 26, 2019 Brogan Hensley, Court of Appeals Case No. 18A-JP-2758 Megan Orcutt, Appeal from the Appellant-Respondent, Dearborn Circuit Court v. The Honorable James D. Humphrey, Judge The Honorable John Hensley, Kimberly A. Schmaltz, Magistrate Appellee-Petitioner. Trial Court Cause No. 15C01-1507-JP-55

Kirsch, Judge.

[1] Megan Orcutt (“Mother”) appeals the trial court’s order granting a petition filed

by John Hensley (“Father”) to modify custody of the parties’ minor child,

Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019 Page 1 of 9 Brogan Hensley (“Child”) raising the following restated issue for our review:

whether the trial court abused its discretion when it granted Father’s petition to

modify custody.

[2] We vacate and remand with instructions.

Facts and Procedural History [3] Mother and Father have one child together, Child, who was born on September

13, 2012. Appellant’s App. Vol. 2 at 10. In an order issued on April 6, 2016,

paternity was established and child support, parenting time, and child custody

were also ordered. Id. at 22-25. Pursuant to this order, Mother was given

primary legal and physical custody of Child. Id. at 22. Father was given

parenting time on alternating weekends from Friday at 6:00 p.m. to Sunday at

6:00 p.m., and every Wednesday from 4:00 p.m. to 7:30 p.m. Id. Due to

conflict between the parties, the provisions of the Indiana Parenting Time

Guidelines (“IPTG”) regarding the right of first refusal did not apply. Id. The

parties were ordered to communicate only through a communication notebook,

until Father completed an anger management course. Id. at 23-24. Parenting

time exchanges were to take place at the Aurora police station. Id. at 23. At

the time of the original custody order, Mother had a protective order against

Father under cause number 15C01-1508-PO-108. Id. at 31. The trial court kept

the protective order in place but modified it to be consistent with the terms of

the custody order. Id. at 23.

Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019 Page 2 of 9 [4] On April 7, 2017, Father filed a “Verified Emergency Petition to Modify

Custody, Parenting Time and Child Support.” Id. at 5. After evidentiary

hearings were held, the trial court issued an order on May 25, 2017, granting

Father temporary custody of Child. Id. at 14. In the temporary custody order,

the trial court found that circumstances had substantially changed, making the

original custody order unreasonable and not in Child’s best interests because

the Department of Child Services (“DCS”) had substantiated neglect against

Mother and had entered an Informal Adjustment in cause number 15C01-1703-

JC-029. Id. at 14-15.

[5] The trial court found that Mother had been in many fights with her live-in

boyfriend, Phillip Clark (“Clark”), while they were drunk and that the police

had responded to the home. Id. at 15. Mother admitted that Clark had a drug

problem, and on a follow-up visit, DCS smelled marijuana when Child was

present in Mother’s home. Id. at 16. Mother also had two homeless

individuals living with her, and one was a drug user. Id. Mother left Child

home alone while taking her daughter to school. Id. at 17. Mother admitted

she had installed a deadbolt to keep Child from leaving his room and had

locked Child in his room numerous times. Id. Mother had removed the

deadbolt before DCS’s initial visit because she realized it “sounded bad.” Id.

Mother had difficulty disciplining Child, and prior to DCS involvement, Child

was out of control and would hit Mother after Mother spanked him. Id. at 18.

Child had tooth enamel problems, but Mother did not take him to the dentist

from August 9, 2015 to March 7, 2017. Id. at 19.

Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019 Page 3 of 9 [6] At the time of the temporary custody order, DCS had no concerns with Father

having custody of Child. Id. at 20. The trial court ordered that neither party

was to allow any contact between Child and Clark. Id. At that time, Mother’s

relationship with Clark had ended, and he no longer lived in Mother’s home.

Id. at 21. Both parties were prohibited from drinking alcohol or using illicit

substances when Child was in their care. Id. Mother was granted parenting

time per the IPTG. Id. at 20.

[7] On May 15, 2018, Mother filed a motion for a final hearing on custody

modification. Id. at 6. The trial court held an evidentiary hearing on

September 21, 2018. Id. at 10. In its final order on modification of child

custody and child support issued on October 21, 2018, the trial court made its

temporary custody order permanent, modified custody of Child in favor of

Father, and incorporated the findings contained in the temporary custody order

into the final order. Id. The trial court awarded Father sole legal and physical

custody of Child and granted Mother parenting time in accordance with the

IPTG. Id. at 10-11. At the time of the temporary custody hearing, Child was

four years old, and at the final hearing, he was six years old. Tr. at 8-9. Mother

now appeals.

Discussion and Decision [8] Mother asserts that the trial court abused its discretion in granting Father’s

petition for custody modification and awarding sole legal and physical custody

of Child to Father. We review custody modifications for an abuse of discretion

Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019 Page 4 of 9 “with a preference for granting latitude and deference to our trial judges in

family law matters.” In re the Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct.

App. 2012), trans. denied. This is because the trial court is able to observe the

parties’ conduct and demeanor and hears their testimonies. Id. We will not

reweigh the evidence or judge the credibility of witnesses and will reverse the

trial court’s custody determination based only upon a trial court’s abuse of

discretion that is “clearly against the logic and effect of the facts and

circumstances or the reasonable inferences drawn therefrom .” Id. “[I]t 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 reversal.” Id.

[9] Father did not file an appellee’s brief. When an appellee fails to submit a brief

on appeal, we apply a less stringent standard of review with respect to the

showing necessary to establish reversible error. In re Paternity of S.C., 966

N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied. We may reverse if the

appellant establishes prima facie error, which is an error at first sight, on first

appearance, or on the face of it. Riggen v. Riggen, 71 N.E.3d 420, 422 (Ind. Ct.

App. 2017). Moreover, we will not undertake the burden of developing legal

arguments on the appellee’s behalf. Id.

[10] Mother argues that the trial court abused its discretion when it modified

custody of Child in favor of Father and awarded Father sole legal and physical

custody. Specifically, Mother contends that the trial court did not expressly

indicate which statutory factors regarding custody had substantially changed

Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019 Page 5 of 9 and did not explain why a change in custody is in the best interests of Child.

She asserts that the trial court’s previous grant of temporary change of custody

to Father was not sufficient to warrant a permanent custody modification and

that evidence was presented that the circumstances that supported the

temporary change of custody had been remedied at the time of the final

hearing. Mother further maintains that, although it was permissible for the trial

court to consider the temporary custody order in its determination of the

custody modification, it is only a part of the consideration of whether

modification is in the best interests of a child, and Father presented no evidence

to support a finding that custody modification in favor of Father was in Child’s

best interests.

[11] Here, the trial court entered findings and conclusions sua sponte. When the

trial court enters findings sua sponte, the specific findings control only as to the

issues they cover, while a general judgment standard applies to any issue upon

which the court has not found. Montgomery v. Montgomery, 59 N.E.3d 343, 349

(Ind. Ct. App. 2016), trans. denied. The specific findings will not be set aside

unless they are clearly erroneous. Collyear-Bell v. Bell, 105 N.E.3d 176, 184 (Ind.

Ct. App. 2018). A finding is clearly erroneous when there are no facts or

inferences drawn therefrom that support it. Id. In reviewing the trial court’s

findings, we neither reweigh the evidence nor judge the credibility of the

witnesses. Id.

[12] Pursuant to Indiana Code section 31-17-2-21, a trial court may not modify an

existing custody order unless: (1) the modification is in the best interests of the

Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019 Page 6 of 9 child; and (2) there has been a substantial change in one or more of the

statutory factors set forth in Indiana Code section 31-17-2-8. The factors a trial

court is to consider under section 31-17-2-8 are:

(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 Decision 18A-JP-2758 | June 26, 2019 Page 7 of 9 (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. . . .

To support a modification of custody under Indiana Code section 31-17-2-21,

the trial court must find that (1) the change would be in the child’s best

interests, (2) it considered the factors listed above, and (3) there has been a

substantial change in one of those factors. Collyear-Bell, 105 N.E.3d at 184.

[13] In the present case, the trial court’s findings in its order modifying custody are

insufficient to support a modification of custody. In the order, the trial court

simply stated, “Modification of custody is in the best interest of the child.

Father shall have sole legal and physical custody of the minor child.”

Appellant’s App. Vol. 2 at 11. It then went on to list the statutory factors it

considered in making that determination. However, the trial court made no

explicit finding that there had been a substantial change in one of the statutory

factors under Indiana Code section 31-17-2-8 that warranted a modification of

custody. Id. at 10-12.

[14] In order to support a modification of custody, the trial court is required to make

“a finding that a change would be in the child’s best interests,” to consider “the

factors listed in [Indiana Code section 31-17-2-8], and [to make] a finding that

there has been a substantial change in one of those factors.” Nienaber v.

Nienaber, 787 N.E.2d 450, 456 (Ind. Ct. App. 2003). Indiana courts have

Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019 Page 8 of 9 interpreted the language of the statute to require the trial court to find there has

been a substantial change in one or more of the statutory factors. Kanach v.

Rogers, 742 N.E.2d 987, 989 (Ind. Ct. App. 2001). The court must “consider”

the statutory factors and find there has been a substantial change. Id.

[15] Here, nowhere in the trial court’s order was there a finding that there had been

a substantial change in any of the factors set out in Indiana Code section 31-17-

2-8. Based on our less stringent standard of review due to Father’s failure to file

an appellee’s brief, we conclude that Mother has shown prima facie error. The

trial court abused its discretion when it modified custody in favor of Father.1

We, therefore, vacate the trial court’s order and remand for further findings.

[16] Vacated and remanded with instructions.

Vaidik, C.J., and Altice, J., concur.

1 Mother also raises an issue contending that the parties effected a de facto modification of Mother’s parenting time because an exhibit that she presented at the evidentiary hearing showed that Mother signed Child into school all but five days during a seven-month period. Appellant’s Br. at 21 (citing Ex. Vol. at 13). However, although the cited exhibit does show that Mother signed Child into school thirty-four times in the seven-month period reflected in the exhibit, this is not enough to extrapolate that she had Child an additional ninety-six nights per year and that the trial court erred in giving Mother credit for only ninety-eight overnights.

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