MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 20 2021, 8:59 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jonathan D. Harwell Karen A. Wyle Harwell Legal Counsel LLC Bloomington, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Paternity of January 20, 2021 Sophia C. Spinks: Court of Appeals Case No. 20A-JP-1423 Courtney Spinks, Appeal from the Appellant-Respondent, Monroe Circuit Court v. The Honorable Stephen R. Galvin, Judge The Honorable David Matthew Roach, Bret Raper, Commissioner Appellee-Petitioner. Trial Court Cause No. 53C07-1609-JP-589
Kirsch, Judge.
[1] Courtney Spinks (“Mother”) appeals the trial court’s order that granted David
Matthew Roach’s (“Father”) petition to modify custody of their child, Sophia
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 1 of 32 C. Spinks (“Child”) from joint physical and legal custody to legal and primary
physical custody of Child to Father. Mother raises two issues on appeal, which
we restate as:
I. Whether the trial court abused its discretion in denying Mother’s second motion for continuance where she lacked the financial means to hire an attorney at the time; and
II. Whether the trial court abused its discretion in modifying the custody of Child to Father where there was no substantial change in circumstances.
[2] We affirm.
Facts and Procedural History [3] Mother and Father met in 2009, and on April 25, 2010, Child was born to
Mother and Father. Appellant’s Conf. App. Vol. 2 at 97. Mother and Father
never married. Id. After Child was born, Mother and Father lived together in
Muncie, Indiana. Id. In Spring of 2012, Mother, Father, and Child moved to
Bloomington, Indiana. Id. Mother and Father separated during the summer of
2016 and were co-parenting without a court order. Id. at 98. At some point
during 2016, Father began dating Kelley Wolfe (“Kelley”). Father and Kelley
are now engaged. Id. at 107. Their relationship is stable and happy. Id.
[4] On September 6, 2016, Father filed a verified petition to establish paternity, and
his paternity was established. Appellant’s App. Vol. 2 at 5. On October 5, 2016,
Mother and Father entered a mediated agreed entry in which they agreed to
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 2 of 32 share legal and physical custody of Child. Id. at 6, 22-27. In April 2017, they
entered into a second agreement, under which they continued to share physical
and legal custody, which the trial court approved on June 8, 2017. Id. at 29-33.
Under this agreed order, Child generally spent half her time with each parent,
moving from one to the other every three days or less. Tr. Vol. V. at 49;
Appellant’s Conf. App. Vol. 2 at 100.
[5] At some point after the June 8, 2017 order was entered, communication
between Mother and Father became acrimonious, so the guardian ad litem
(“GAL”) and the trial court agreed that Mother and Father should use Our
Family Wizard, a communication tool that would moderate the tone of their
exchanges. Tr. Vol. IV at 13-14, 131. Mother took significantly longer than
Father to begin using this tool, and she has not used it consistently. Tr. Vol. V
at 20, 68-69, 88, 129-30, 157. Whenever possible, Father communicated to
Mother through Our Family Wizard. Id. at 87-88.
[6] On several occasions, Mother asked Child to request that Father allow Child to
spend extra time with her. Tr. Vol. IV at 98; Appellant’s Conf. App. Vol. 2 at 106.
When Child stayed with Mother, Child had a hard time disclosing her thoughts
and feelings to Mother if doing so would hurt Mother’s feelings. Tr. Vol. V at
137; Appellant’s Conf. App. Vol. 2 at 110. Child did not want to hurt either
parent’s feelings. Tr. Vol. IV at 27; Appellant’s Conf. App. Vol. 2 at 133. For
example, Child was afraid to tell Mother that she liked Kelley because of
Mother’s intense dislike of Kelley. Appellant’s Conf. App. Vol. 2 at 101.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 3 of 32 [7] In July 2017, Mother instigated an argument about the clothes Child was
wearing when Mother came to pick Child up at Father’s home. Id. at 100-01.
Mother was so angry that she started to drive away with Child standing inside
the car while the car door was still open. Id. at 101. Mother admitted to an
Indiana Department of Child Services (“DCS”) case worker that she “just
couldn’t control herself.” Tr. Vol. IV at 36; Appellant’s Conf. App. Vol. 2 at 100-
01. DCS investigated the incident but did not substantiate that there was abuse
or neglect. Appellant’s Conf. App. Vol. 2 at 101.
[8] Mother had, on several occasions, planned to relocate herself and Child to be
near one or another of Mother’s boyfriends. Id. at 143. Moreover, she had
spoken to Child about these impending relocations before revealing her
intentions to Father or determining how such relocations would affect Child’s
education, the custody arrangement, or Father’s parenting time. Tr. Vol. V at
121-23; Appellant’s Conf. App. Vol. 2 at 106. The GAL expressed concern that
Mother’s repeatedly introducing Child to her boyfriends and allowing Child to
become attached to these men could lead to psychological difficulties for Child
when those relationships ended. Tr. Vol. IV at 12, 18-19, 22. Mother made
such introductions despite admitting, in a colorful Facebook posting, that she
had a history of dating unreliable and unpleasant men, including a recent
boyfriend who stole her car:
What kind of special A-Hole steals your car?!?! . . . .
Somehow I have the UNCANNY ability to find every fkface there is in this state and date them. Like a damn moth to a Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 4 of 32 flame. Not sure why that is. So, girls, if you have ANY sort of interest in a guy NONE of us should date him. If, however, I don’t have an interest, he’s probably pretty sweet and has plenty going for him. Guys that I’ve rejected [should] take that as a compliment. I could probably get a job as an a**hole detector for this talent of mine. Think of the millions I’d make! Anyone who knows me well enough should know this. ANNNYWAYS . . . [j]ust wanted you to throw that out there for any of you who know the most recent sh**bag . . . .
Appellant’s Conf. App. Vol. 2 at 112.
[9] The GAL characterized Mother as emotional, sometimes volatile, and lacking
in insight, seldom recognizing -- unlike Father -- when she has made a mistake
and tending to interpret people’s actions -- especially Father’s -- in a distorted
manner. Id. at 106-07. Mother painted a “very dark picture” of Father. Id. at
101. Mother would also build up minor issues into major injustices, unable to
see such issues from the perspective of other people. Id. at 106. The GAL
recommended that Mother get counseling from a mental health professional.
Id. at 116. The GAL also reported that mother showed poor judgment in her
conversations with Child; for instance, Mother would ask Child to ask Father if
she could spend more time with Mother instead of Mother herself asking Father
if Child could spend more time with her. Id. at 147. The GAL recommended
that Father have primary custody of Child. Id. at 115.
[10] Child began third grade in the fall of 2018, and her teacher was Ms. Jennifer
Fox (“Ms. Fox”); Child began fourth grade in the fall of 2019 with her primary
teacher being Mrs. Meghann Goetz (“Mrs. Goetz”). Id. at 101, 116, 146. Ms.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 5 of 32 Fox and Mrs. Goetz testified that Father had been consistently reliable and
proactive in getting to know Child’s teachers, communicating with them,
scheduling and attending parent-teacher conferences, and working with Child
on her homework. Tr. Vol. IV at 64-65, 71-72, 88. Father promptly signed up
to use ClassDojo, software enabling him to monitor Child’s progress and
communicate with her teachers. Id. at 73; Tr. Vol. V at 158. Child’s reading
performance improved after her third-grade teacher met with Father and
enlisted his aid to help Child improve her reading. Tr. Vol. IV at 65. By
contrast, Child’s teachers and a school social worker noticed that Child was less
awake and involved in her schoolwork after spending nights with Mother. Id.
at 63-64; Tr. Vol. V at 160-61. Moreover, Mother failed to use the Dojo system,
and ignored several reminders to sign up for parent-teacher conferences until
the day those conferences were set to begin, by which time all time slots had
been filled. Tr. Vol. IV at 66; Appellant’s Conf. App. Vol. 2 at 104.
[11] On July 16, 2019, Father filed a verified petition to modify custody. Appellant’s
App. Vol. 2 at 13, 45-47. On August 12, 2019, the trial court scheduled a
hearing on Father’s petition to modify custody for October 21, 2019. Appellant’s
App. Vol. 2 at 13-14. On October 18, 2019, Mother sent the trial court a letter,
which the trial court treated as a motion to continue the hearing on Father’s
petition to modify custody. Id. at 14. The trial court granted Mother’s request
and set the hearing for February 3, 2020. Id.
[12] On December 3, 2019, the trial court held a hearing on Mother’s failure to
comply with the trial court’s order that directed Mother to respond to Father’s Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 6 of 32 requests for discovery. Tr. Vol. III at 4. Mother said she wanted an attorney but
could not yet afford one. Id. at 7, 11. The trial court “absolutely encourage[d]”
Mother to get an attorney, told her that it had information about free legal
resources, and promised to provide Mother that information. Id. at 11, 13.
[13] On January 28, 2020, Mother filed a second request for continuance via a letter
she wrote to the trial court, asking for another thirty days “so that [she] may
engage in representation.” Appellant’s App. Vol. 2 at 119. Father objected to the
request for a second continuance, emphasizing that it would not be in Child’s
best interest and that he had already arranged for witnesses to attend the
hearing, including a teacher who had already adjusted her schedule once
before, for the previously continued hearing. Id. at 120-22. On January 30,
2020, the trial court denied Mother’s request for a second continuance. Id. at
18.
[14] Mother orally renewed her motion for continuance at the start of the February
3, 2020 hearing. Tr. Vol. IV at 6, 8. She stated that she “[did] now have an
attorney” but had not yet paid his full retainer, which she expected to pay by
the end of that week. Id. at 6-7. The trial court denied Mother’s oral renewed
motion, stating:
[T]his has been on the books for quite some time and, and it, um, this Court’s experience is it puts young children, children, um, in a, in a situation where they feel like, um, there’s just, there’s no resolution and then they’re trying to appease both parents and the child needs resolution and so, I’m going to deny the request
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 7 of 32 to continue the matter given that it’s been on the books for quite some time.
Id. at 8-9.
[15] Father began his case in chief at the February 3, 2020 hearing. Tr. Vol. IV at 10.
The following people testified on behalf of Father: the GAL, Ms. Fox, and
Father himself. Id. at 11-18, 56-60, 62-68, 74-76, 76-121. Mother cross-
examined the GAL and Ms. Fox. Id. at 18-55, 68-73. Because the time was
insufficient to complete the hearing, Father did not complete his direct
testimony. Id. at 128. The trial court scheduled a second day for the hearing
for June 12, 2020. Id. at 133-34. At the June 12, 2020 hearing, Mother was
represented by counsel. Tr. Vol. V at 3. At that hearing, Father completed his
direct testimony, and Mother’s counsel cross-examined Father. Id. at 13-48, 48-
77, 77-92, 92-96.
[16] The hearing was completed on June 12, 2020. Tr. Vol. VI at 19. On July 1,
2020, the trial court issued its final ruling, which, in pertinent parts, found and
concluded as follows:
Findings of Fact
1. [Mother and Father], who have never been married to each other, share [Child] . . ., who is presently ten (10) years of age. [Child] recently completed her fourth (4th) grade year at Arlington Heights Elementary School.
....
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 8 of 32 6. In accordance with [the] [June 8,] 2017 Order, [Mother and Father] share joint physical and legal custody of [Child]. . . .
26. On or about July 7, 2017, less than one (1) month after the issuance of the [June 8,] 2017 Order, the Indiana Department of Child Services (DCS) initiated an investigation following an argument between [Mother and Father] during a parenting time exchange.
27. Mother had arrived at Father’s home to pick up [Child] and . . . Mother was dissatisfied with Child’s attire. Mother made Child go back inside Father’s home to change clothes. An argument ensued between Father and Mother which resulted in [Mother and Father] yelling at each other in the presence and/or hearing of [Child]. Mother then began to drive off with [Child] in the car; however, [Child’s] car door was not fully secured[,] and it opened as Mother was driving off. Fortunately, [Child] did not fall out of the car nor was [Child] otherwise physically injured. After this incident the parties began effecting parenting exchanges at a neutral location.
28. DCS did not substantiate abuse or neglect against Mother, although the DCS case manager did recommend therapy for [Child], and she further suggested both parents might benefit from individualized therapy.
40. Ms. Fox was aware of the parents’ shared custody arrangement, and she observed differences with respect to the quality of [Child’s] school performance depending on which parent kept [Child] the previous night.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 9 of 32 41. Ms. Fox found Father to be more engaged in [Child’s] academic progress than Mother was. . . .
42. Ms. Fox observed that [Child] would always do homework when she was under Father’s care. Ms. Fox acknowledged that towards the end of the school year [Child] was doing better at completing homework while under Mother’s care.
43. Ms. Fox developed concerns that [Child] was experiencing tension with Mother during the 2018 fall semester to the extent that Ms. Fox ultimately felt compelled to share her concerns with the school social worker.
44. [Child] successfully completed the third (3rd) grade (2018- 2019), and she enrolled in the fourth (4th) grade at Arlington Heights Elementary School in August 2019. Mrs. Goetz was [Child’s] fourth (4th) grade teacher.
45. The GAL spoke with Mrs. Goetz who indicated that [Child] has trouble focusing, and that her school performance is inconsistent. . . . Mrs. Goetz expressed concern to the GAL that [Child] does not work to her potential.
46. Mrs. Goetz advised the GAL that she . . . sometimes had to sit with [Child] to do math, and that [Child] received some extra help with reading. . . . .
47. Mrs. Goetz advised the GAL that Father communicates well with her. Mrs. Goetz noted that Father attended Open House, Meet the Teacher, and a parent-teacher conference. Mrs. Goetz described Father as being “proactive” when [Child] had a problem.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 10 of 32 48. Mrs. Goetz advised the GAL that as of December 13, 2019, she had met with Mother on only one (1) occasion, and that was when [Child] had a toy taken away at school and a parent was required to come to school . . . to reclaim it.
49. At the beginning of the 2019-2020 school year, Mrs. Goetz sent both parents an invitation to ClassDojo, which is an educational communications computer application. Father immediately signed up for ClassDojo whereas Mother did not.
53. The GAL describes Father as being detail-oriented and responsible. The GAL further notes that Father assists [Child] with her homework and that he sets appropriate boundaries for her.
58. The GAL expressed concern that Mother involves [Child] in “adult conversations,” noting, by way of example, that Mother sometimes encourages [Child] to call Father to ask for extra time with Mother rather than Mother contacting Father herself.
60. The GAL describes Mother as “emotional” and “at times volatile.” The GAL states that Mother “seems to lack insight,” and that Mother “seldom recognizes when she has made a mistake.”
61. The GAL found there to be a high level of animosity between [Mother and Father], and that [Child] is highly aware of this animosity and she feels caught in the middle. The GAL Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 11 of 32 believes this ongoing conflict is emotionally harmful to [Child] as she does not wish to hurt either parent’s feelings.
62. The GAL opines that continuing the existing co-parenting relationship would be detrimental to [Child], and that [Child] needs stability and decreased parental strife. . . .
64. Mother recently purchased a smart phone for [Child] without any consultation and/or consent from Father. During cross- examination Mother first denied that [Child’s] phone was internet accessible, but she later acknowledged that it was, but that she carefully monitored [Child’s] cell phone usage. Mother further acknowledged that [Child’s] cell phone is password protected, and she has not shared the password with Father as [Child] needs privacy.
Conclusions of Law
8. [T]he court finds Father’s testimony to be more credible than Mother’s. The court found Father’s testimony to generally be plausible in that it was logically consistent and empirically supported.
9. In many instances the court found Mother’s testimony not plausible. Mother’s credibility was diminished in her responses to various cross-examination questions posed by Father’s counsel ....
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 12 of 32 16. [I]t is clear that both parents, who presently share joint physical custody of the [Child] have “buyer’s remorse” regarding their negotiated agreement which resulted in the [June 8,] 2017 Order. During the course of the hearing both Father and Mother stated . . . their belief that [Child] would be best served by him/her serving as [Child’s] primary physical custodial parent.
17. Since the [June 8,] 2017 Order the level of distrust and animosity between [Mother and Father] has drastically increased, and this is especially true after Father began his relationship with Kelley. The GAL believes that [Child] is highly aware of the co- parenting tension and she feels stuck in the middle.
18. There is significant evidence to suggest that since the [June 8,] 2017 Order Mother has discussed with [Child] her animosity and distrust of Father, as well as her . . . disdain for Kelley, such that [Child] is afraid to express to Mother that she . . . actually likes Kelley.
19. The GAL indicates that [Child] feels the conflict between [Mother and Father] and that she . . . does not wish to hurt anyone’s feelings. The GAL surmises that [Child] is feeling pressure from Mother to tailor her statements regarding Father, and that [Child] is experiencing mental distress between being loyal to Mother and telling the truth.
20. The GAL concludes, and the court agrees, that [Child] should be able to express herself to each parent without having to censor herself. [Child] desires to be truthful and [Child] should not be pressured to say things she does not believe to be true. Mother’s conduct in this regard has proven to be harmful to [Child’s] emotional wellbeing.
21. A second significant change in circumstances relates to [Child’s] academic progress. Since the [June 8,] 2017 Order
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 13 of 32 [Child] has advanced three (3) grades, and while [Child’s] age and educational grade advancement alone do not establish a substantial change for custody modification, it is clear in this case that since the [June 8,] 2017 Order Father has emerged as the parent who is attentive to and responsible for [Child’s] educational achievement and progress.
22. Father regularly attends school meetings and functions; he routinely communicates with [Child’s] teachers; and he consistently monitors and assists [Child] with homework assignments.
24. [Child’s] fourth grade teacher, Ms. Goetz, indicated to the GAL that [Child] has difficulty focusing and that she has needed additional assistance. Ms. Goetz praised Father for being proactive and communicative regarding [Child’s] schoolwork, whereas Mother was less involved and communications with Mother were limited.
25. While the aforementioned changes serve as the primary basis for custody modification, the body of evidence also corroborates the GAL’s concerns regarding Mother’s overall inconsistency in keeping [Child’s] appointments, including parenting exchanges, as well as what the GAL characterizes as Mother’s impulsivity.
26. The court ultimately concludes that Father has met his burden of demonstrating that the existing custody order is no longer feasible and that [Child’s] best interest is served by Father serving as the primary physical custodial parent.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 14 of 32 30. [Mother and Father] have not demonstrated a willingness and/or ability to communicate and cooperate in advancing [Child’s] welfare, and their unwillingness to communicate has intensified since the [June 8,] 2017 Order.
31. [Mother and Father’s] recently elevated distrust and animosity toward each other is regrettable as both parents dearly love [Child], and [Child] could benefit from their collaborative decision making. However, at this time, only Father has routinely demonstrated the requisite fitness and suitability necessary for legal custody.
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED:
1. Physical Custody. In accordance with I.C. § 31-14-13-6 and I.C. § 31-14-13-2 the court finds that the existing physical custody order should be modified and that Father should be awarded primary physical custody of [Child], subject to Mother’s parenting time . . . .
2. Legal Custody. Father shall be awarded sole legal custody of [Child]. Father shall keep Mother timely apprised as to all major issues and decisions regarding [Child], and he shall timely advise Mother as to [Child’s] medical appointments, including all dental and psychological appointments.
Appellant’s App. Vol. 2 at 142, 144, 146-54. Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 15 of 32 Discussion and Decision
I. Denial of Motion for Continuance [17] Mother contends that the trial court abused its discretion when it denied her
renewed motion for a second continuance at the beginning of the February 3,
2020 hearing. Indiana Trial Rule 53.5 provides in part: “Upon motion, trial
may be postponed or continued in the discretion of the court[] and shall be
allowed upon a showing of good cause established by affidavit or other
evidence.” Id. The ruling on a motion for continuance is left to the discretion
of the trial court, a trial court’s denial of a motion for continuance is entitled to
substantial deference, and we presume that a trial court properly exercised its
discretion. Blackburn v. State, 130 N.E.3d 1207, 1210 (Ind. Ct. App. 2019). This
principle holds true in custody cases. See, e.g., Clark v. Clark, 404 N.E.2d 23, 26-
27, 36 (Ind. Ct. App. 1980). When a motion for continuance is based on a
party’s effort to obtain counsel, that party must show diligence in procuring
counsel. Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009); Riggin v. Rea
Riggin & Sons, Inc., 738 N.E.2d 292, 311 (Ind. Ct. App. 2000). For purposes of
representation by counsel, a custody hearing is a critical stage of a custody
modification proceeding. F.M. v. N.B., 979 N.E.2d 1036, 1042 (Ind. Ct. App.
2012). We measure the prejudice to the respective parties of a trial court’s
ruling on a motion for continuance. Id.
[18] Mother contends the trial court abused its discretion in denying her motion for
continuance because: 1) she needed more time to acquire funds to hire an
attorney and that she was diligent in trying to hire an attorney, evinced by her Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 16 of 32 willingness to take a second job to help pay for an attorney; 2) she was
prejudiced by the denial of her motion for continuance; and 3) Father’s petition
for change of custody had been pending for only six months, making a delay in
the pending custody matter insignificant. In support of her claim that a
continuance was justified to give her more time to hire an attorney, Mother
cites F.M., 979 N.E.2d at 1041, Hess v. Hess, 679 N.E.2d 153, 154 (Ind. Ct. App.
1997), and J.P. v. G.M., 14 N.E.3d 786, 791 (Ind. Ct. App. 2014).
[19] In F.M., we found that the trial court abused its discretion in denying a
mother’s first request for a continuance. 979 N.E.2d at 1041. The mother had
filed her first motion for continuance on the first day of the custody
modification hearing because her attorney had unexpectedly withdrawn earlier
that day because she had failed to pay him. Id. at 1038. We found that
granting the mother’s request for a continuance would not have prejudiced the
father. Id. F.M. did not address whether the delay in resolving the custody
issue caused by a continuance would negatively impact the child.
[20] In Hess, a dissolution case, the husband’s attorney unexpectedly withdrew four
days before the final dissolution hearing. 679 N.E.2d at 154. Two days before
the final hearing, the husband, pro se, filed his first motion for a continuance,
and at the beginning of the final hearing, the trial court denied the husband’s
motion. Id. In finding that the trial court abused its discretion in denying the
husband’s motion, we stated: “There is nothing in the record to show that
Husband intended or could foresee that counsel would withdraw at such a
late hour.” Id. at 155.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 17 of 32 [21] Finally, in J.P., grandparents filed a petition to visit the father’s child. 14
N.E.3d at 786. The day before the hearing was to begin, the father learned for
the first time that the grandparents would be represented by counsel at the
hearing. Id. at 788. Because he did not have time to hire an attorney, the father
appeared pro se at the hearing and asked the trial court to continue the hearing
so he could hire counsel. Id. at 788-89. Until father learned that the
grandparents had hired an attorney, he had believed that involvement of
attorneys was unnecessary: “I thought we were all just going to do it without
an attorney, so I didn’t get one.” Id. at 788. The trial court denied the father’s
request for a continuance. Id. at 788-89. During the hearing on the
grandparents’ petition for visitation, the father asked no questions and
presented almost no substantive testimony, explaining that he wanted a lawyer
to assist him because he did not completely understand the proceedings. Id. at
789. We ruled that the trial court should have granted the motion for
continuance because the father was prejudiced by participating in the hearing
without an attorney, which thus deprived him of his fundamental right in the
care, custody, and control of his child. Id. at 790-91 (citing Bester v. Lake Cnty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005)).
[22] Here, we find that the trial court did not abuse its discretion in denying
Mother’s motion for a continuance. We acknowledge Mother’s testimony that
she needed more time to acquire funds to hire an attorney -- and had taken a
second job to help her afford an attorney -- but the trial court could have found
this explanation was inadequate because weeks earlier the trial court advised
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 18 of 32 Mother about the availability of free legal services. Tr. Vol. III at 11, 13.
Further, when Mother filed her second motion for continuance and renewed
her motion at the beginning of the hearing, she provided no evidence that she
had even attempted to acquire pro bono counsel. See Tr. Vol. IV at 8; Appellant’s
App. Vol. 2 at 119.
[23] We also reject Mother’s argument that she was prejudiced by the denial of her
motion for continuance. Mother does not explain how she was prejudiced. For
instance, she does not contend that had she been given more time to hire a
lawyer for the final hearing, a lawyer present at the first day of the hearing
would have elicited testimony on cross-examination that would have helped
Mother’s position. Instead, she leaves us to speculate as to how she was
prejudiced by the denial of her motion for continuance and the lack of counsel
at the first day of the hearing on Father’s petition to modify custody.
Therefore, because Mother has not explained how she was prejudiced, she has
waived this claim for lack of cogent argument. See Jarman v. State, 114 N.E.3d
911, 915 n.2 (Ind. Ct. App. 2018), trans. denied.
[24] Waiver aside, Mother was not prejudiced by the denial of her motion for
continuance. We first observe that unlike the parties in F.M., Hess, and J.P.,
Mother had earlier obtained a continuance, so the continuance request at issue
in this appeal was a request for a second continuance. Appellant’s App. Vol. 2 at
14. More importantly, the parties in F.M. and Hess were substantially
prejudiced by the eleventh-hour withdrawals of their attorneys. F.M., 979
N.E.2d 1038; Hess, 679 N.E.2d at 154. And the father in J.P. was caught off
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 19 of 32 guard when he learned just one day before the hearing on the petition for
grandparent visitation that the opposing party was represented by counsel
because he had believed that “we were all just going to do it without an
attorney, so I didn’t get one.” 14 N.E.3d at 788. Here, Mother’s second
request for a continuance did not arise from being blindsided by the actions of
an attorney she had already hired or by being taken off guard by the actions of
the opposing party.
[25] Moreover, even though Mother was not represented on the first day of the
hearing, she was still not prejudiced. The final hearing occurred over two days,
February 3, 2020, and again more than four months later on June 12, 2020.
Appellant’s App. Vol. 2 at 18, 20. Father began his case in chief at the February
3, 2020 hearing and during that hearing, time allowed him to call only three
witnesses, the GAL, Ms. Fox, and himself. Tr. Vol. IV at 11, 56, 62, 74, 76.
Mother cross-examined the GAL and Ms. Fox. Id. at 18-55, 68-73.
[26] Thus, unlike the father in J.P., Mother participated in the first day of the
hearing in a significant, meaningful manner. See J.P., 14 N.E.3d at 789. Also,
while Father began his testimony during the first day of the hearing, he did not
complete his direct testimony before the trial court adjourned the matter for the
day. Tr. Vol. IV at 128. On the second day of the hearing, June 12, 2020,
Father continued with his direct testimony, and at this second day of the
hearing, Mother was represented by counsel. Tr. Vol. V at 3. Once Father
completed his testimony, Mother’s counsel thoroughly cross-examined Father.
Tr. Vol. V at 48-77, 92-94. Father called two more witnesses, including the
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 20 of 32 GAL, who had testified at the first day of the hearing. Id. at 96-105, 112-14,
153-62. Mother’s counsel also thoroughly cross-examined the GAL. Id. at 115-
153, 162-65. Mother then presented her case-in-chief though her attorney. Id.
at 168-77, 182-89, 192-228; Tr. Vol. VI at 6-11. In sum, Mother’s attorney was
able to put on Mother’s case-in-chief and was able to cross-examine all of
Father’s witnesses except Ms. Fox, whom Mother had cross-examined during
the first day of the hearing. Tr. Vol. IV at 18-55, 68-73. Thus, Mother has failed
to demonstrate that she was prejudiced by the denial of her second motion for
continuance.
[27] Finally, we reject Mother’s claim that the trial court abused its discretion in
denying her motion for continuance because, according to Mother, continuing
the hearing was not problematic because Father’s petition to modify custody
had been pending only six months. Mother ignores the impact of a continuance
on Child. As the trial court found:
[T]his has been on the books for quite some time and, and it, um, this Court’s experience is it puts young children, children, um, in a, in a situation where they feel like, um, there’s just, there’s no resolution and then they’re trying to appease both parents and the child needs resolution and so, I’m going to deny the request to continue the matter given that it’s been on the books for quite some time.
Id. at 8-9. The trial court was in the best position to weigh the impact of a
continuance on Child, so we will not second guess the trial court’s
determination that a continuance was not in Child’s best interest. Accordingly,
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 21 of 32 for all the foregoing reasons, we conclude that the trial court did not abuse its
discretion when it denied Mother’s request for a second continuance.
II. Modification of Child Custody [28] Mother contends that the trial court abused its discretion when it modified the
original custody order and granted Father primary physical and sole legal
custody of Child. We review custody modifications for an abuse of discretion.
Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011), trans. denied. We
grant significant latitude to trial judges in family law matters. Steele-Giri v.
Steele, 51 N.E.3d 119, 124 (Ind. 2016). Appellate courts “are in a poor position
to look at a cold transcript of the record, and conclude that the trial judge, who
saw the witnesses, observed their demeanor, and scrutinized their testimony as
it came from the witness stand, did not properly understand the significance of
the evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). Thus, we will not
“reweigh the evidence nor reassess witness credibility, and the evidence should
be viewed most favorably to the judgment.” Best v. Best, 941 N.E.2d 499, 502
(Ind. 2011). We will reverse the trial court’s custody determination only if the
decision is “clearly against the logic and effect of the facts and circumstances or
the reasonable inferences drawn therefrom.” In re Paternity of C.S., 964 N.E.2d
879, 883 (Ind. Ct. App. 2012), trans. denied. “[I]t 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.”
Kirk, 770 N.E.2d at 307.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 22 of 32 [29] Indiana Code section 31-17-2-21 provides that a trial court may not modify an
existing custody order unless (1) the modification is in the best interests of the
child, and (2) there has been a substantial change in one or more statutory
factors outlined in Indiana Code section 31-17-2-8. Indiana Code section 31-
17-2-8 provides, in part:
The court shall determine custody and enter a custody order in accordance with the best interests of the child. . . . The court shall consider all relevant factors, including the following:
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(5) The child’s adjustment to the child’s:
(B) school . . .
(6) The mental and physical health of all individuals involved.
Ind. Code § 31-17-2-8. “[T]he child’s best interest is the touchstone of any
custody determination . . . .” McDaniel v. McDaniel, 150 N.E.3d 282, 291 (Ind.
Ct. App. 2020), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 23 of 32 [30] Here, it appears that neither party requested special findings under Indiana
Trial Rule 52(A) and that the trial court entered its findings sua sponte. “As to
the issues covered by the findings, we apply the two-tiered standard of whether
the evidence supports the findings, and whether the findings support the
judgment.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). When a party fails to
challenge the evidentiary basis of a finding, we accept that finding as true. See
McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (when father
failed to challenge specific findings, court accepted them as true). Findings will
only be set aside if they are clearly erroneous. Id. Findings are clearly
erroneous only when the record contains no evidence to support the findings,
whether directly or by inference. Id. A judgment is clearly erroneous also if it
applies the wrong legal standard to properly found facts. Id. In order to
determine that a finding or conclusion is clearly erroneous, our review must
convince us that a mistake has been made. Id. As to issues not addressed in a
trial court’s sua sponte findings, we review those issues under the general
judgment standard, where we will affirm the judgment if it can be sustained on
any legal theory consistent with the evidence. Id. “[W]e may look both to
other findings and beyond the findings to the evidence of record to determine if
the result is against the facts and circumstances before the court.” Stone v. Stone,
991 N.E.2d 992, 998 (Ind. Ct. App. 2013).
[31] Mother contends Father presented no evidence of a substantial change in
circumstances to justify the trial court’s decision to grant Father’s petition to
modify custody. Specifically, Mother claims, inter alia, that there is no
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 24 of 32 evidence of substantial change of circumstances regarding: 1) her and Father’s
ability to co-parent Child; 2) Child’s academic performance and Father’s
involvement in Child’s education; and 3) her impulsive behavior.
[32] Mother’s first argument that there is no evidence of changed circumstances
regarding her and Father’s ability to co-parent Child implicates Indiana Code
section 31-17-2-8(4))(A), which states that when a trial court makes a custody
decision, it should consider the “interaction and interrelationship of the child
with: (A) the child’s parent or parents . . . .” We have previously held that the
breakdown in communication between parents justified a change of custody.
See In re Marriage of Cain, 540 N.E.2d 77, 78 (Ind. Ct. App. 1989) (“The
evidence supported the trial court’s conclusion that the parties were unable or
unwilling to share authority for the major decisions concerning the child’s
upbringing[, and] [t]he breakdown in communication and cooperation between
the joint custodians was a substantial and continuing change in circumstances
making the joint custody order unreasonable.”); cf. Williamson v. Williamson,
825 N.E.2d 33, 41 (Ind. Ct. App. 2005) (Upon former wife’s motion for
modification of custody of minor child, the quality of relationship between
child and former wife’s new husband was factor to be considered in
determining that substantial change warranted award of sole custody of subject
child to former wife).
[33] Mother’s argument focuses on the trial court’s findings regarding the growing
tension between Father and Mother, especially since Father began his
relationship with his Kelley. The trial court found that Child was aware of this
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 25 of 32 escalating tenson and felt “stuck in the middle.” Appellant’s App. Vol. 2 at 151.
It also found that Mother expressed to Child her disdain of Father and Kelley,
which made Child feel she could not tell Mother that she liked Kelley and
pressured Child to tailor all her statements to Mother in a way that would not
hurt Mother’s feelings. Id. The trial court found that this pressure was harming
Child’s emotional wellbeing. Id.
[34] Mother does not challenge the evidentiary basis of these findings but instead
asks us to assign less weight to them than did the trial court, a request we must
decline because our standard of review does not allow us to reweigh the
evidence. See Best, 941 N.E.2d at 502. Furthermore, Mother ignores other trial
court findings regarding how the growing tension between Mother and Father
made co-parenting more difficult and harmed Child. For instance, the trial
court found that the existing co-parenting relationship would emotionally harm
Child and that Child needed stability and less parental strife. Appellant’s App.
Vol. 2 at 147. Because Mother does not challenge these findings, we accept
them as true. See McMaster, 681 N.E.2d at 747. Therefore, the trial court could
have concluded that under Indiana Code section 31-17-2-8(4)(A), Child’s
relationship with Mother under the prior custody order was undermining her
relationship with both Mother and Father, was forcing Child to choose between
telling the truth about her feelings about Kelley and risk Mother’s ire or hide the
truth and censor her feelings for no other reason than to placate Mother’s
feelings, was making communication between Mother and Father more
difficult, and thus was making co-parenting more difficult. Accordingly, the
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 26 of 32 trial court did not abuse its discretion in finding that the parties’ difficulty in
communicating because of their increasing hostility was undermining Child’s
relationship with both Mother and Father and was making co-parenting more
difficult, such that it was in Child’s best interest to grant Father’s petition to
modify custody.
[35] Second, we reject Mother’s argument that the evidence regarding Father’s role
in Child’s education did not constitute a substantial change in circumstances
justifying a change in custody. Indiana Code section 31-17-2-8(5)(B) provides
that one factor in determining whether to modify child custody is “[t]he child’s
adjustment to the child’s . . . school.” We have held that stability in education
is a factor a trial court may consider when reviewing a petition to modify
custody. See Kuiper v. Anderson, 634 N.E.2d 556, 558 (Ind. Ct. App. 1994).
Mother argues that the only evidence that Father helps Child with homework
more than Mother came from six reading logs that Father submitted into
evidence. As to her failure to communicate with teachers, attend school
meetings and functions, Mother blames Father for not telling her the dates and
times for the school meetings. She also blames Father for her failure to utilize
the ClassDojo communication tool, claiming he should have told her about
ClassDojo, but he failed to do so. Mother justifies her failure to attend parent-
teacher conferences because all time slots for the teacher-parent meetings had
been taken. On this allegation, Mother fails to acknowledge that she did not
attempt to schedule a meeting until the day that those teacher-parent meetings
were to occur. Tr. Vol. IV at 66. In all of these allegations, Mother does not
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 27 of 32 contend that there was no evidence to support these facts but instead asks us to
minimize the significance of this evidence. This is an impermissible request to
reweigh the evidence. See Best, 941 N.E.2d at 502.
[36] Moreover, Mother ignores other evidence the trial court recited to justify its
conclusion that Father played a more positive role in Child’s education than
Mother did. The trial court’s findings included: 1) Ms. Fox determined Father
was more engaged in Child’s education, based partly on her observation that
Child’s school performance was better if she had spent the previous night with
Father and that Child’s homework was always completed when Child has spent
the previous night with Father; 2) Mrs. Goetz stated that Father was proactive
and frequently communicated with her, met with her several times while she
had met Mother only once; and signed up immediately to use the ClassDojo
tool while Mother had not. Appellant’s App. Vol. 2 at 146-47, 151-52. Thus, in
light of the foregoing findings and conclusions, most of which Mother does not
challenge, we conclude the trial court did not abuse its discretion in finding a
substantial change in circumstances regarding Child’s education and that
granting Father’s petition to modify custody was in Child’s best interests for her
education. See Ind. Code § 31-17-2-8(5)(B).
[37] Third, we reject Mother’s argument that evidence of her emotionally unstable,
impulsive behavior did not constitute a substantial change in circumstances
justifying a change in custody. Even though Indiana Code section 31-17-2-8
does not explicitly list this as a factor in determining custody, we find this issue
still falls under this statute because the statute instructs trial courts to consider
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 28 of 32 “all relevant factors,” which includes “(6) The mental and physical health of all
individuals involved.” “[I]f one parent can demonstrate that the other has
committed misconduct so egregious that it places a child’s mental and physical
welfare at stake, a custody order may be modified.” Albright v. Bogue, 736
N.E.2d 782, 790 (Ind. Ct. App. 2000); see also Hanson v. Spolnik, 685 N.E.2d 71,
78 (Ind. Ct. App. 1997), trans. denied. In Doubiago v. McClarney, 659 N.E.2d
1086, 1088 (Ind. Ct. App. 1995), trans. denied, we affirmed the trial court’s
decision to modify custody by giving father sole legal custody of the child
because of Mother’s emotional instability, her suspicious nature, her tendency
to blame others for problems, and her tendency to over-react to situations with
aggression and anger.
[38] Mother argues that we should discount the trial court’s finding about the
driving incident where Child was in the car, but Mother left the door open,
because DCS did not substantiate that abuse or neglect occurred. She also asks
us to discount her vulgar posting on Facebook regarding the men she had dated
“because it is hardly uncommon in today’s society to make social media posts
when someone is upset[.]” Appellant’s Br. at 22.
[39] Here, even though DCS’s investigation of the car incident did not substantiate
that Mother committed abuse or neglect, the trial court was still entitled to
consider the evidence regarding the driving incident. Father was not
collaterally estopped from presenting evidence about the driving incident, and
the trial court was not collaterally estopped from considering this evidence. See
Infectious Disease of Indianapolis, P.S.C. v. Toney, 813 N.E.2d 1223, 1228 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 29 of 32 App. 2004), opinion amended on reh’g, 828 N.E.2d 386 (Ind. Ct. App. 2005).
This is so because DCS’s decision to not substantiate a finding of abuse or
neglect regarding the driving incident was not a final judgment on the merits in
a court of competent jurisdiction, and the DCS determination did not share
identity of issues with Father’s petition to modify custody. See id. Thus, the
trial court could have reasonably concluded that Mother’s actions in the driving
incident indicated volatile, impulsive behavior and poor judgment. Moreover,
once again, Mother asks us to reweigh the evidence. For instance, the trial
court could have reasonably concluded that Mother’s derogatory statements
about her former boyfriends in her Facebook posting indicated that she was
impulsive and showed poor judgment. Appellant’s Conf. App. Vol. 2 at 112.
Mother’s justification that such postings are “hardly uncommon in today’s
society,” Appellant’s Br. at 22, is another impermissible request to reweigh the
evidence. See Best, 941 N.E.2d at 502.
[40] Furthermore, and as she has done with her other arguments, Mother ignores
testimony and several trial court findings and conclusions that support the trial
court’s determination that Mother was impulsive and showed poor judgment.
For instance, Mother had, on several occasions, planned to relocate herself and
Child in order to be near one or another boyfriend. Appellant’s App. Vol. 2 at
143. Moreover, Mother had spoken to Child about these impending relocations
before revealing her intentions to Father or determining how such relocations
would affect Child’s education and custody or Father’s parenting time. Tr. Vol.
V at 121-23; Appellant’s Conf. App. Vol. 2 at 106. Also, Mother ignores Finding
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 30 of 32 58, in which the trial court found that the GAL expressed concern that Mother
involves Child in “adult conversations,” such as encouraging Child to call
Father to ask for extra time with Mother rather than Mother contacting Father
herself. Appellant’s App. Vol. 2 at 147. Mother also ignores Finding 64, in which
the trial court found that Mother exercised poor judgment by not sharing with
Father the password to Child’s cell phone. Id. at 148. Mother also ignores the
testimony of the GAL, who characterized Mother as emotional, sometimes
volatile, and lacking in insight, seldom recognizing -- unlike Father -- when she
has made a mistake and tending to interpret people’s actions -- especially
Father’s — in a distorted manner. Appellant’s Conf. App. Vol. 2 at 106-07.
Mother also ignores the trial court findings that Mother’s behavior hurt Child’s
mental health, including finding that Mother’s pressure on Child to make Child
tailor her statements to Mother in a way that would not offend Mother “has
proven to be harmful to [Child’s] emotional wellbeing.” Appellant’s App. Vol. 2
at 148, 151. Therefore, the trial court did not abuse its discretion in
determining that Mother’s impulsive, emotionally volatile behavior negatively
impacted Child’s mental health. See Ind. Code § 31-17-2-8(6).
[41] In sum, the trial court did not abuse its discretion in finding that granting
Father’s petition to modify custody was in Child’s best interests based on 1) the
worsening of the communication between Mother and Father because of the
increasing hostility between them and that this increasing hostility made co-
parenting increasingly difficult; 2) Father’s excellent track record in supporting
Child’s schooling compared to Mother’s sporadic and subpar record of
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 31 of 32 participating in Child’s education, and 3) Mother’s volatile, impulsive, and
emotionally unstable behavior and how that behavior was harmful to Child’s
mental health. Accordingly, we affirm the trial court.
[42] Affirmed.1
Bradford, C.J., and May, J., concur.
1 Mother also contends that the GAL was biased against her. In so arguing, Mother uses the wrong legal standard, citing caselaw dealing with judicial bias, not bias by a witness. See Appellant’s Br. at 25. Thus, she has waived this issue for failure to make cogent argument. See Jarman v. State, 114 N.E.3d 911, 915 n.2 (Ind. Ct. App. 2018), trans. denied. Moreover, Mother’s argument is yet another impermissible request to reweigh the evidence. See Best, 941 N.E.2d at 502. We reject Mother’s argument that the GAL was biased against her.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-1423 | January 20, 2021 Page 32 of 32