MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 30 2017, 10:41 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrea L. Ciobanu Katherine A. Harmon Ciobanu Law, P.C. Jared S. Sunday Indianapolis, Indiana Mallor Grodner, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kyle Andrews, May 30, 2017 Appellant-Petiitoner, Court of Appeals Case No. 27A02-1610-JP-2311 v. Appeal from the Grant Circuit Court Gilliam Moorman, The Honorable Mark E. Spitzer. Appellee-Respondent. Judge Trial Court Cause No. 27C01-1208-JP-431
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 1 of 26 Case Summary [1] Kyle Andrews (“Father”) appeals the trial court’s modification of custody of his
child, T.A., in favor of Gillian Moorman (“Mother”). We affirm.
Issues [2] The issues before us are:
I. whether the trial judge erroneously failed to recuse himself due to a possible appearance of impropriety;
II. whether the modification of custody is supported by sufficient evidence; and
III. whether the trial court erred in calculating Father’s child support obligation.
Facts [3] T.A. was born in July 2011. The parties apparently lived together but had an
acrimonious split sometime after T.A. was born. On November 1, 2013, as part
of a paternity action filed by Father, the trial court approved the parties’
agreement to have joint legal and physical custody of T.A. 1 The parties’
relationship was such that they both occasionally cursed and called each other
names in front of T.A.; Mother sometimes called Father an “a**hole,” and
1 The precise details of this agreement are not in the record before us, because any records in the case prior to July 1, 2014, have been sealed and are not included in the chronological case summary and are not located in the Odyssey case management system. See Ind. Admin. Rule 9(G)(2)(k).
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 2 of 26 Father sometimes called Mother a “piece of s*** and horrible mother.” Tr. pp.
433, 457.
[4] Both parties also have had varying degrees of mental health issues related to
stress and anxiety. Father has not been working steadily and has been receiving
Social Security disability payments for over a decade related to a panic attack in
2002; he claims not to have suffered one since. He received counseling for
several years and is on anti-anxiety medication. Much of Father’s counseling
focused on stress related to co-parenting with Mother. Father often brought
T.A. to these appointments, without Mother’s approval, although the counselor
did not believe it was inappropriate for Father to do so.
[5] Mother also has had panic attacks in the past. She has not undergone
counseling for them but did begin taking an anti-anxiety medication in August
2016 as needed. Mother has consistently worked at the pediatric dental practice
of her step-father’s mother, Dr. Alice Butterworth, for twelve years. She is
currently a dental assistant whom Dr. Butterworth praised for her ability to get
along with children. Mother also had some physical health issues beginning in
approximately December 2015 and culminating with a surgery in August 2016
that appears to have corrected the issues. These issues interfered occasionally
with Mother’s parenting during this time frame.
[6] One of the primary areas of dispute between the parties has been T.A.’s
education. Generally, Mother believes T.A. needs more of it in a formal setting
while Father does not. In January 2014, a dispute between the parties with
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 3 of 26 respect to whether T.A. should attend preschool led to a court order requiring
T.A. to attend preschool at Westminster Presbyterian Preschool
(“Westminster”) in Marion two half-days per week, per Mother’s request.
Father failed to take T.A. to Westminster on the first day he had to do so,
which led to a contempt filing and hearing. Father apparently has consistently
taken T.A. to preschool thereafter.
[7] Mother believed T.A. needed to be increasing the amount of time she was in
preschool, but Father refused to consent to anything more than two half-days
per week. At the end of the school year in spring 2016, T.A.’s preschool
teacher assessed her academically, as well as socially and emotionally, and
recommended that T.A. was not ready for kindergarten, although she was near
the cut-off age to begin attending. T.A. was the only student who attended
Westminster for only two half-days per week; all of her classmates attended five
days per week, either half or full days. The teacher believed T.A. would have
benefitted from more preschool attendance. She also noted that Mother would
discuss T.A.’s progress with her when seeing Mother at pick-ups or drop-offs,
while Father never did so. Additionally, T.A.’s demeanor and class
participation was stable on days that Mother was expected to pick her up from
school, but was highly unstable on days that Father was expected to pick her
up. After the teacher’s recommendation that T.A. was not ready for
kindergarten in fall 2016, the parties agreed not to enroll her in kindergarten.
Father wanted to move T.A. into a different preschool and to continue her
enrollment of two half-days per week while Mother wanted to continue her
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 4 of 26 enrollment at Westminster and increase her amount of attendance. There was
evidence Father sometimes did not respond to Mother’s texts wanting to
discuss T.A.’s education. Also, Father refused Mother’s suggestion that T.A.
be enrolled in extracurricular dance classes.
[8] Custody exchanges from Father to Mother often caused T.A. to cry and
become highly emotional. Father and T.A. would repeatedly tell each other
that they loved one another and would miss each other. Exchanges from
Mother to Father were not accompanied by similar outbursts or comments.
[9] Mother has another child, P.T., who is about two years younger than T.A.
T.A. and P.T. have a close older sister-younger brother relationship, and both
attend Westminster. P.T.’s father, Zachary Thieken, is on good terms with
Mother, and they communicate effectively regarding P.T.’s care and education,
although they no longer have a romantic relationship. T.A. also is close to
Thieken’s parents and considers them her grandparents as well; Thieken
likewise is close to T.A.
[10] On April 24, 2015, Father filed a petition to modify custody, requesting that he
be granted sole legal and primary physical custody of T.A. The trial court
appointed a guardian ad litem (“GAL”) to evaluate the custody situation, at
Father’s request. The GAL spoke with Mother, Father, T.A., Thieken,
Mother’s father, Father’s mother, Father’s counselor, and Father’s psychologist.
On December 7, 2015, the GAL filed her report with the trial court. The report
ultimately concluded, “I think Mr. Andrews has a good support system and has
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 5 of 26 taken the proper steps to care for his own mental health issues and is in a better
position to provide for the care and custody of [T.A.]. Therefore I recommend
father Kyle Andrews be awarded sole legal and physical custody of [T.A.].”
Ex. 5 p. 9. The GAL did not file any supplements to this report.
[11] The trial court held a two-day hearing on August 29-30, 2016. Father called as
witnesses his counselor, mother, stepfather, Mother’s brother Thomas, and
himself; Mother called Dr. Butterworth, Thieken, T.A.’s preschool teacher, her
mother and father, and herself. By all accounts, T.A. is a sweet, intelligent,
well-mannered, and well-adjusted child. The only area of concern appears to be
that T.A. is behind other children her age with respect to academics, as well as
socially and emotionally. There also was ample evidence that both parents love
and care for T.A. and have appropriate homes for her in Marion, and both
Mother and Father have extended family with whom T.A. enjoys spending
time. There was evidence presented of the parties having different parenting
styles, with Mother’s being more structured and Father’s less so. As may be
expected, Father’s witnesses believed he was a great parent, and Mother’s
witnesses believed she was a great parent. Father and some of his witnesses
attempted to portray T.A. as being frightened of Mother, which was refuted by
Mother’s witnesses. Mother’s father expressed concern that Father’s approach
to co-parenting was his “way or no way.” Tr. p. 359.
[12] Caught in the middle of this situation was Mother’s brother Thomas. He has
attempted to remain on friendly terms with Father and had recently attended a
birthday party for T.A. hosted by Father’s family. At one time, Thomas
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 6 of 26 expressed concern to Father over a man Mother apparently was dating who had
an extensive criminal history. Mother testified that she did see this man for a
few months in early 2015 and that he had some interaction with T.A., but that
she ceased all communication with him after learning of his criminal history.
Thomas also confirmed that he had sent some texts to Father relating, for
example, that T.A. appeared happy with Father or that she was afraid of
Mother. However, Thomas testified that some of his texts had been
misconstrued, particularly during the time of Mother’s physical illness, or that
Father had misled him about certain matters. In the end, Thomas stated that he
had no concerns about either Father or Mother as a parent and that he has
observed much more of Mother’s parenting than Father’s.
[13] The GAL testified that she had not changed her opinion regarding T.A.’s
custody since her initial report. T.A.’s teacher testified that she had attempted
to call the GAL more than once to speak with her about the case but the GAL
failed to return her calls. Mother also testified that the GAL never spoke with
her mother or step-father despite her request that she do so, nor did the GAL
ever observe Mother and T.A. together. Mother also testified that she would
like to be awarded sole legal and primary physical custody of T.A. due largely
to the communication issues between her and Father.
[14] Approximately halfway through the second day’s hearing, the trial court
informed the parties:
COURT: So unfortunately this happens sometimes, and so I realized um, at the end of the day yesterday that I represented, I
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 7 of 26 didn’t make the connection, I represented Butterworth Industries at some point in the past when I was in private practice…
[Father’s attorney]: Okay.
COURT: . . . as a business lawyer.
[Mother’s attorney]: Okay.
COURT: So um, I’ve been on the bench for close to ten years at this point. It was, and I hadn’t done any work for them for a significant time before I had done that, but I realized, I was walking out, and Frank [Mother’s step-father] and Suzan [Mother’s mother] said hi to me.
[Mother’s attorney]: Sure.
COURT: I think she would’ve been a very young kid when I first met them, so I don’t know that I’ve ever met any of their children or anything. Um, I saw Suzan in March a couple of months ago and said hi to her, and that’s probably the first time that I had seen either of them in probably fifteen years maybe, um, but I wanted to disclose that.
COURT: I don’t know that it’s going to make any type of a um, impact on any decision that I would make. Um, from my perspective this is a choice between two good parents I think is
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 8 of 26 what, the way I would characterize it, and that can’t get along very well together, so um, you know I’d prefer not to have to make the choice at all, and that, you know I want to bring them in and say get along. You know it’s what I want to do, but so, but I wanted to disclose that. I know when you get halfway into a custody hearing and like oh great you know, but I felt like you know, when those types of things come up then I do disclose those, and let you know, and then you can take any action or none if you wish to, but I wanted to at least um, do that, and I’d be happy to answer any questions that you might have sort of about the extent of ...
[Father’s attorney]: Judge as long as your [sic] confident that your representation of that business fifteen plus years ago wasn’t going to uh, one way sway you or the other, then I’m perfectly fine.
COURT: Alright yeah.
[Father’s attorney]: I’m absolutely fine with that.
COURT: Yeah. Yeah. I don’t believe it would.
Tr. pp. 346-48.
[15] On September 28, 2016, the trial court entered an order granting Mother sole
legal and primary physical custody of T.A., with Father having parenting time
according to the Parenting Time Guidelines. The trial court noted the
unfortunate “personal animosity” between the parties but that “both parents are
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 9 of 26 generally good parents, love their daughter and have her best interest at heart . .
. .” Appellant’s App. Vol. II p. 36. The trial court further stated:
In considering the evidence, the Court is mindful that “[e]ven two parents who are exceptional on an individual basis when it comes to raising their children should not be granted, or allowed to maintain, joint legal custody over the children if it has been demonstrated . . . that those parents cannot work and communicate together to raise the children.” Carmichael v. Siegel, 754 N.E.2d 619, 636 (Ind. Ct. App. 2001). Unfortunately, “a joint custody order may simply provide a framework for the parents to continue the conflict which brought them to divorce in the first place. The conflict would just be focused solely on the children.” Barteau and Hopkins, Joint Custody in Indiana, 27 Res Gestae 320, 324 (1984). In this case, to continue the joint custody situation with regard to [T.A.] 2 would constitute “an intolerable situation upon two persons who have made child rearing a battleground.” Aylward v. Aylward, 592 N.E.2d 1247, 1252 (Ind. Ct. App. 1992). Thus, under the circumstances, after carefully weighing all of the evidence and assessing the credibility of the witnesses, the Court finds that a sole custody order with Mother as the custodial parent is in [T.A.]’s best interests.
Id. at 37.
[16] The trial court also recalculated child support but found Father personally
owned none because the amount of Social Security payments he received
exceeded his support obligation and the excess was a gratuity. It noted that
Father currently is the representative payee for T.A.’s Social Security disability
2 The trial court here mistakenly referred to T.A. by the middle name of her half-brother P.T.
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 10 of 26 payments that are derivative of Father’s own benefits and ordered, “[t]he parties
shall take such action necessary to change the representative payee for [T.A.]’s
benefits from Father to Mother.” Id. at 38. On the child support worksheet the
trial court granted Father parenting time credit for 96-100 overnights.
[17] On October 7, 2016, Father filed a notice of appeal. On that same date, Father
filed with the trial court a “Motion to Enforce Mid-Week Overnight Parenting
Time,” which also sought to hold Mother in contempt for not allowing such
parenting time, as well as a motion for a partial stay of the trial court’s order
pending appeal. Appellee’s App. Vol. II p. 2.3 On October 19, 2016, the
completion of the clerk’s record for this case was noted in the trial court’s
chronological case summary. On November 1, 2016, after holding a hearing on
the matter, the trial court denied all of Father’s motions. The trial court noted
in part that it lacked jurisdiction to alter its September 28, 2016 order because
the clerk’s record had already been completed for this appeal, but that it was not
inclined to alter its order in any case. Father did not renew his motion to stay
before this court.
3 Father has filed a motion to strike Mother’s appendix, which contains the post-trial motions and orders. We have denied this motion by separate order. Although not significantly impacting our analysis of the case, we believe we may properly take judicial notice of these motions and orders as court records under Indiana Evidence Rule 201(a)(2)(C) and 201(b)(5).
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 11 of 26 Analysis I. Recusal
[18] The first issue we address is whether the trial judge erred in failing to sua sponte
recuse himself after realizing he had previously performed legal work,
apparently for a business owned by Mother’s mother and step-father, over a
decade earlier while in private practice. Indiana Code of Judicial Conduct
2.11(A) provides, “A judge shall disqualify himself or herself in any proceeding
in which the judge’s impartiality might reasonably be questioned . . . .”
Comment 5 to this rule states, “A judge should disclose on the record
information that the judge believes the parties or their lawyers might reasonably
consider relevant to a possible motion for disqualification, even if the judge
believes there is no basis for disqualification.” That is precisely what the judge
here did, and Father’s attorney expressly said she was “absolutely fine” with the
judge continuing to preside over this case. Tr. p. 348.
[19] “A party may not lie in wait and only raise the recusal issue after receiving an
adverse decision.” Carr v. State, 799 N.E.2d 1096, 1098 (Ind. Ct. App. 2003).
“Waiver notwithstanding, the law presumes that a judge is unbiased in the
matters that come before him.” Id. A judge’s prior representation of a party in
an unrelated case does not mandate the reversal of a judgment, absent a
showing of actual prejudice. See id. Father fails to direct us to any evidence of
prejudice based on the judge’s representation of a business owned by Mother’s
step-father and mother over a decade prior to the hearing in this case.
Moreover, although Father concedes that he did not request the judge’s recusal,
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 12 of 26 he suggests that it was unfair to place him in the situation of asking the judge to
recuse himself halfway through the second day of hearings in this matter.
However, it clearly would have been much preferable to do so then and not
now, on appeal and months after the hearing and the order modifying custody.
There was no error in the judge declining to sua sponte disqualify himself from
consideration of this case.
II. Modification of Custody
[20] We now address the substance of the trial court’s decision to modify legal and
physical custody of T.A. in favor of Mother.4 The trial court here issued some
limited, sua sponte factual findings and legal conclusions as part of its order
modifying custody. “In such a case, the specific findings control only with
respect to issues they cover, and a general judgment standard applies to issues
outside the findings.” Montgomery v. Montgomery, 59 N.E.3d 343, 349 (Ind. Ct.
App. 2016), trans. denied. We will set aside the trial court’s findings or judgment
only if they are clearly erroneous. Id. “A finding is clearly erroneous only if
there are no facts or inferences drawn therefrom to support it.” Id.
Additionally, “[w]e may affirm a general judgment with sua sponte findings
upon any legal theory supported by the evidence introduced at trial.” Stone v.
Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013). Sua sponte findings control as
to the issues upon which the court has found, but they do not otherwise affect
4 Father suggests the trial court’s order is ambiguous. We believe it clearly awarded Mother sole legal custody and primary physical custody of T.A.
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 13 of 26 our general judgment standard of review, “and we 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.” Id.
[21] We grant “‘latitude and deference to our trial judges in family law matters.’”
Steele–Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of
Richardson, 622 N.E.2d 178 (Ind. 1993)). “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.’” Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307
(Ind. 2002)). “In order to reverse a trial court’s ruling, it is not enough that the
evidence might have supported a different conclusion.” Montgomery, 59 N.E.3d
at 350. Rather, the evidence must positively require the conclusion contended
for by appellant before we may reverse. Id. We may not reweigh the evidence
or reassess witness credibility, and must view the evidence in a light most
favorable to the judgment. Id. Although we must be highly deferential to trial
courts in custody cases, that deference is not absolute and reversal is possible.
Id.
[22] Pursuant to Indiana Code Section 31-14-3-6, a trial court in a paternity
proceeding may not modify a physical child custody order unless a
noncustodial parent shows both that modification is in the best interests of the
child, and there has been a substantial change in one or more of the factors
listed under Indiana Code Section 31-14-13-2. Those factors are:
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 14 of 26 (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.
(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 the child’s 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.
[23] “A parent seeking modification of custody bears the burden of proving that the
existing custody order should be altered.” Montgomery, 59 N.E.3d at 350.
“Indeed, this ‘more stringent standard’ is required to support a change in
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 15 of 26 custody, as opposed to an initial custody determination where there is no
presumption for either parent because ‘permanence and stability are considered
best for the welfare and happiness of the child.’” Steele-Giri, 51 N.E.3d at 124
(quoting Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)).
[24] With respect to modification of legal custody, a trial court should specifically
consider whether there has also been a change in one of the statutory factors
governing awards of joint legal custody. Julie C. v. Andrew C., 924 N.E.2d 1249,
1259-60 (Ind. Ct. App. 2010). In a paternity case, those factors are:
(1) the fitness and suitability of each of the persons awarded joint legal custody;
(2) whether the persons awarded joint legal custody are willing and able to communicate and cooperate in advancing the child’s welfare;
(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) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody;
(5) whether the persons awarded joint legal custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so;
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 16 of 26 (6) the nature of the physical and emotional environment in the home of each of the persons awarded joint legal custody; and
(7) whether there is a pattern of domestic or family violence.
I.C. § 31-14-13-2.3(c).
[25] Father argues in part that we must reverse and remand because the trial court
failed to enter specific findings indicating that it had considered the statutory
factors for a modification of custody or that its order lacked sufficient indication
that it had adequately considered those factors, citing primarily Green v. Green,
843 N.E.2d 23 (Ind. Ct. App. 2006). In that case, this court reversed and
remanded a modification of custody because the trial court did not enter any
findings demonstrating it had considered the relevant statutory factors for a
modification of custody. However, we believe our supreme court subsequently
has indicated such findings are not necessary if no findings are requested. In
Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008), the trial court failed to enter
any findings when modifying custody, and none were requested. Our supreme
court noted the general standard of review that a judgment will be affirmed “‘if
sustainable upon any theory consistent with the evidence.’” Baxendale, 878
N.E.2d at 1257 (quoting Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind.
1997)). The court proceeded to affirm the custody modification based on the
evidence in the record supporting it and made no mention of the trial court’s
lack of findings as being problematic. Id. at 1257-58.
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 17 of 26 [26] Here, the trial court’s sua sponte partial explanation of its order modifying
custody did not obligate it to enter complete findings on all of the statutory
modification factors. Rather, our standard of review is that we may affirm the
trial court based on any evidence in the record. See id.; Stone, 991 N.E.2d at
998. The trial court’s failure to make more detailed findings, in the absence of a
request for such findings, is not an indication that it did not carefully consider
the evidence and correctly apply it to the law.
[27] Similarly, Father contends the trial court’s reference in its order to this court’s
decision in Aylward v. Aylward, 592 N.E.2d 1247 (Ind. Ct. App. 1992), is fatal.
In that case, we reversed an award of joint legal custody because it imposed “an
intolerable situation upon two persons who have made child rearing a
battleground.” Aylward, 592 N.E.2d at 1252. Father asserts the trial court erred
in relying on Aylward in a case that presented issues of both legal and physical
custody. He notes that, in Van Wieren v. Van Wieren, 858 N.E.2d 216 (Ind. Ct.
App. 2006), this court rejected a parent’s attempt to rely upon Aylward in
addressing a joint physical custody issue. We said that, although modification
of joint legal custody may be a “sensible step” to take if parents have made
child-rearing a battleground, “[i]t does not necessarily follow . . . that the same
result must be reached with respect to a split physical custody arrangement.”
Van Wieren, 858 N.E.2d at 222. However, as with the trial court’s findings (or
lack thereof) regarding custody, the trial court’s legal conclusions regarding
custody did not have to be thorough and complete. Although it did not
distinguish between legal and physical custody when citing Aylward, there was
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 18 of 26 nothing wrong with it having mentioned the case, and we will proceed to
review whether there was sufficient evidence to support a modification of both
physical and legal custody when applying the correct legal standard.
[28] The next issue we address is whether there is sufficient evidence of a substantial
change in circumstances of one of the statutory custody factors. Father
contends that, by modifying custody, the trial court essentially punished him for
his and Mother’s lack of cooperation in caring for T.A., or conversely that it
rewarded Mother for her poor behavior. He cites Van Wieren, in which this
court affirmed a trial court’s denial of the father’s motion to modify custody.
The parties had an acrimonious relationship and a split physical custody
arrangement, and this court stated, “[i]f the trial court had awarded sole
physical custody to either party, the ‘winner’ would have been well rewarded
for obstreperous, disrespectful, and distasteful behavior.” Van Wieren, 858
N.E.2d at 222.
[29] However, this statement in a case affirming a denial of modification does not
require a trial court to deny a physical custody modification request in all cases
where the parents have joint legal and physical custody and an acrimonious
relationship. The facts and circumstances of each case are unique. In fact, one
of the statutory physical custody factors that may change over time is “[t]he
wishes of the child’s parents.” I.C. § 31-14-13-2(2). One of the legal custody
factors is “whether the persons awarded joint legal custody are willing and able
to communicate and cooperate in advancing the child’s welfare.” I.C. § 31-14-
13-2.3(c)(2). Here, neither parents believed the joint legal and physical custody
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 19 of 26 situation to which they had previously agreed was sustainable as it was causing
too much stress to both of them and T.A. Father himself was the one who
originally moved to modify custody, and he testified that having joint custody
was “overwhelming challenging.” Tr. p. 180. “[J]oint custody is difficult when
the parents are able to communicate effectively and almost always detrimental
to the wellbeing of the child when they cannot. . . . There are times when a
breakdown of communication between parents renders joint custody no longer
in the best interests of the child.” In re Paternity of A.S., 948 N.E.2d 380, 387
(Ind. Ct. App. 2011) (affirming modification of physical custody where both
parents requested modification).
[30] Furthermore, Father arguably is judicially estopped from now asserting that a
modification of custody was unwarranted. “Under the doctrine of judicial
estoppel, a party may not assert a position in a legal proceeding inconsistent
with one previously asserted.” Hay v. Baumgartner, 903 N.E.2d 1044, 1049 (Ind.
Ct. App. 2009), trans. denied. This doctrine prohibits a party from repudiating
assertions in the party’s own pleadings. Plaza Group Properties, LLC v. Spencer
County Plan Comm’n, 911 N.E.2d 1264, 1269 (Ind. Ct. App. 2009), trans. denied.
Father clearly pled, presented evidence on, and argued that joint legal and
physical custody between the parties was no longer feasible. It is inconsistent
for him to now claim differently. Rather, Father’s real, viable complaint now is
not so much that the trial court modified custody, but that it modified it in favor
of Mother. We now proceed to analyze the evidence on that point.
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 20 of 26 [31] Father and Mother present vastly different characterizations of the evidence.
Suffice it to say, there was ample evidence that Father and Mother do not get
along, that each has had some mental health troubles, and that they are
incapable of co-parenting effectively but are loving and caring parents to T.A.
individually and have extended family who care for her too. As for which
parent would be “better” for T.A. to have primary physical and sole legal
custody of her, the trial court heard two days of testimony from eleven
witnesses, nearly evenly divided between those supporting Father and those
supporting Mother. The trial court had the unenviable Solomonic task, as is
often this case in these situations, of making a decision about T.A.’s custody in
light of conflicting evidence. It heard the witnesses firsthand, observed their
demeanors, and decided the better fit for T.A. was with Mother. Under the
facts and circumstances of this case, we cannot second-guess that decision.
[32] We note the following evidence that could have tipped the scales in favor of
Mother having primary physical and legal custody as being in T.A.’s best
interests. First, there was evidence that Father’s approach to educating T.A.
was vastly different and more lackadaisical from Mother’s and that Mother’s
desire for more schooling for T.A. would be in her best interests. Second, T.A.
has a closely-bonded relationship with her half-brother P.T., and she would
benefit from spending more, not less, time with him by Mother having primary
physical custody of T.A. Third, with respect to P.T., his father testified strongly
in support of Mother and her parenting skills and explained that they get along
well with respect to co-parenting. This would tend to support Mother and her
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 21 of 26 other witnesses’ testimony that co-parenting issues with respect to T.A. derive
more from Father than Mother. Father attempts to direct us to evidence
painting him as the better custodian for T.A., but that evidence largely was
contradicted, such as of T.A. being frightened of Mother or of Mother
knowingly having a romantic relationship with an habitual criminal. To
consider Father’s evidence would require us to reweigh the evidence, which we
cannot do.
[33] We acknowledge the GAL recommended that Father be granted primary
custody of T.A. Trial courts are not required to accept the opinions of experts
regarding custody, however. Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct.
App. 2000). The trial court heard from more persons than the GAL did
regarding custody, with the added benefit of those persons being subjected to
adversarial testing. It was entitled to draw its own conclusions regarding what
would be in T.A.’s best interests, contrary to the GAL’s conclusion.
[34] As noted, it is not impossible to reverse a trial court’s decision regarding child
custody on appeal. Given our deferential standard of review, however, it is
relatively rare. By way of comparison, we recently reversed a custody
modification order in Montgomery. The trial court modified primary custody
from the father to mother, who was living out of state, based largely on father’s
alleged interference with mother’s parenting time. We reversed because there
was uncontradicted evidence of the child’s positive living situation with father,
a lack of evidence of mother’s current out-of-state living situation, and a lack of
evidence that the father’s limited interference with the mother’s parenting time
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 22 of 26 had substantially or continually impacted the child’s relationship with the
mother or affected the child’s mental or physical health. Montgomery, 59
N.E.3d at 353. Here, by contrast, the parties agreed that a change from joint
custody was needed, there was ample evidence of Mother’s stable and positive
living situation and ability to lovingly care for T.A., and the change of custody
would not necessitate a change in T.A.’s locale or interaction with extended
family and friends. The facts of this case do not present us with sufficient
reason to second-guess the trial court’s decision to modify physical and legal
custody in favor of Mother.
III. Child Support
A. Parenting Time Overnights
[35] Father’s first argument regarding the trial court’s child support order is really an
attack on its parenting time order. Specifically, Father contends the trial court
should have given him a midweek overnight visit with T.A., which would
increase the child support credit for overnights to which he would be entitled.
Indiana Child Support Guideline 6 provides, “A credit should be awarded for
the number of overnights each year that the child(ren) spend with the
noncustodial parent.” The commentary to this Guideline states in part, “If the
parents are using the Parenting Time Guidelines without extending the
weeknight period into an overnight, the noncustodial parent will be exercising
approximately 96-100 overnights.” The trial court here awarded Father
parenting time in accordance with the standard Indiana Parenting Time
Guidelines for a child three years and older: alternating weekends, one evening
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 23 of 26 per week (not an overnight), and all scheduled holidays. Ind. Parenting Time
Guideline (II)(D)(1). It also awarded Father a child support credit for 96-100
overnights.
[36] We review a trial court’s parenting time decision for an abuse of discretion.
Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). “We will not substitute
our own judgment if any evidence or legitimate inferences support the trial
court’s judgment.” Baxendale, 878 N.E.2d at 1257–58. Additionally, “[t]here is
a presumption that the Indiana Parenting Time Guidelines are applicable in all
cases.” Parenting Time G. Scope of Application (C)(3). 5
[37] Father never requested during the modification hearing that he be allowed
midweek overnight parenting time with T.A., which would be a deviation from
the standard and presumptively-adequate parenting time he was entitled to
under the Parenting Time Guidelines. A party generally cannot present an
argument or issue on appeal that was not presented to the trial court. Thomson
Inc. v. Insurance Co. of North America, 11 N.E.3d 982, 1015-16 (Ind. Ct. App.
2014). The first time Father mentioned the possibility of midweek overnight
parenting time was in his post-trial motion to “enforce” it, which reflected a
mistaken belief that he was entitled to such visitation without ever requesting it.
Appellee’s App. Vol. II p. 2. The trial court correctly refrained from
reconsidering its parenting time order, in light of this court having already
5 A trial court also must provide a written explanation if it decides to deviate downward from the Parenting Time Guidelines, but not if it awards more than the minimum recommended parenting time.
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 24 of 26 acquired jurisdiction under Indiana Appellate Rule 8 after the notice of
completion of clerk’s record was noted in the chronological case summary. See
Crider v. Crider, 15 N.E.3d 1042, 1064-65 (Ind. Ct. App. 2014). In sum, Father
cannot establish that the trial court abused its discretion in not awarding him
midweek overnight parenting time where he did not request it during the
modification hearing.6
B. Social Security Payments
[38] The final issue Father raises is that the trial court erred in ordering the parties to
“take such action necessary to change the representative payee for [T.A.’s
derivative Social Security disability] benefits from Father to Mother.”
Appellant’s App. Vol. II p. 38. He directs us to 42 U.S.C. § 407(a), which
states:
The right of any person to any future payment under this subchapter [regarding Social Security payments] shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
He also notes that the Social Security Administration (“SSA”) has been tasked
with designating representative payees for benefit payments under 42 U.S.C. §
6 Father, of course, was hoping to be awarded primary custody of T.A. himself, but a request for additional parenting time in the alternative, should the trial court award primary custody to Mother, could have been made at the modification hearing.
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 25 of 26 405(j) and 20 C.F.R. §§ 404.2001-404.2065. See also Brevard v. Brevard, 328
S.E.2d 789, 792 (N.C. Ct. App. 1985) (holding that state courts lack the power
to direct the SSA to pay a child’s benefits to anyone other than the designated
representative payee).
[39] Be that as it may, the trial court did not purport to order the SSA to do anything
or to order any sort of legal process against T.A.’s derivative benefits. Rather,
its order was directed solely to the parties and required them to take the
necessary steps with the SSA t`o change the representative payee designation,
with the ultimate decision of whether to make the change being left to the
SSA’s discretion. So long as Father cooperated with Mother in seeking the
change, they would have fulfilled the trial court order’s mandate. We see no
impropriety in the trial court’s order regarding T.A.’s derivative Social Security
benefits.
Conclusion [40] The trial judge did not err in failing to sua sponte recuse himself from
consideration of this case. There is sufficient evidence to support the
modification of custody in favor of Mother, and there is no error in the child
support or parenting time orders. We affirm.
[41] Affirmed.
Baker, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 26 of 26