N.L.P. v. T.A.R. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 20, 2017
• Docket: 03A05-1701-JP-236
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 20 2017, 9:00 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Christopher L. Clerc Landyn K. Harmon Columbus, Indiana Columbus, Indiana

IN THE COURT OF APPEALS OF INDIANA

N.L.P., July 20, 2017 Appellant-Respondent, Court of Appeals Case No. 03A05-1701-JP-236 v. Appeal from the Bartholomew Superior Court T.A.R., The Honorable Kathleen Tighe Appellee-Petitioner Coriden, Judge Trial Court Cause No. 03D02-1608-JP-4790

Altice, Judge.

Case Summary

[1] N.L.P. (Mother) appeals the trial court’s paternity order granting joint physical

custody to Mother and T.A.R. (Father) of their two children. She claims that

Court of Appeals of Indiana | Memorandum Decision 03A05-1701-JP-236 | July 20, 2017 Page 1 of 9 the trial court failed to consider certain uncontroverted evidence when making

this ruling.

[2] We affirm.

Facts & Procedural History

[3] Though never married, Mother and Father – now in their early thirties – have

been together nearly all of their teen and adult years. They have frequently

lived with and/or been supported by Father’s parents (Grandparents). Mother

and Father have two children together, A.G.R., born in April 2005, and

K.D.R., born in June 2010 (collectively, the Children). Grandparents have

played a significant role in the Children’s lives and have offered needed stability

and financial support to the family. In 2014, Grandparents purchased a home

that they added onto and turned into a duplex. Father, Mother, and the

Children lived in one side of Grandparents’ duplex rent free, and Grandparents

lived on the other side.

[4] Both Mother and Father lack a high school diploma and have experienced job

instability. Neither are currently employed. Additionally, they both have

minor criminal histories and have struggled with prescription-drug addiction.

Father discontinued abusing hydrocodone in March 2015, which he began

using following a life-threatening auto accident in 2014. Father has yet to fully

recover from his injuries. As the result of a felony conviction in 2012 for

obtaining a controlled substance by fraud or deceit, Mother was ordered into

Court of Appeals of Indiana | Memorandum Decision 03A05-1701-JP-236 | July 20, 2017 Page 2 of 9 treatment and began taking daily doses of methadone until June 2016. Like

Father, Mother has reportedly recovered from her addiction.

[5] In March 2015, Mother ended her relationship with Father and moved out,

leaving the Children with him. She began living with and dating D.D., a

female friend of hers, the following month. Shortly thereafter, Mother and

Father agreed to share approximately equal time with the Children. This

arrangement appeared to work fairly well for the rest of 2015 and well into

2016, despite some tension regarding Mother and D.D.’s relationship. Father,

Grandparents, and Mother’s own parents had objections to Mother and D.D.’s

same-sex relationship.

[6] During the summer of 2016, Mother and D.D. took the Children on a two-

week trip to Wisconsin to visit D.D.’s family without Father’s knowledge.

Father was unhappy when he learned of this trip, and he began to fear that

Mother might remove the Children from Indiana. As a result, he refused

parenting time to Mother for over a month. On August 11, 2016, Mother

visited the Children at her parents’ home. She told her parents that she was

entitled to sole custody because she and Father had never been married. Her

mother “freaked out” and called Father. Transcript at 69. As Mother tried to

leave with the Children, her own father pushed her into a chair and tried to pull

K.D.R. away from her. Father eventually arrived on the scene. The police

were called, and Father was allowed to leave with the Children.

Court of Appeals of Indiana | Memorandum Decision 03A05-1701-JP-236 | July 20, 2017 Page 3 of 9 [7] As a result of this incident, Father contacted a lawyer to initiate this paternity

action. Father filed his Petition to Establish Paternity, Custody and Related

Matters on August 31, 2016. The parties entered into a preliminary agreement,

which was accepted by the trial court on October 13, 2016. They agreed to

share joint legal and physical custody of the Children during the pendency of

the cause as specifically detailed in their agreement.

[8] In the meantime, Mother married D.D. on September 23, 2016, and became a

stepmother to D.D.’s two children, ages seven and nine. Mother and D.D.

have a structured, loving home in which Mother is the primary caregiver and

D.D. is the breadwinner. Father has continued to live in the duplex next to

Grandparents, with whom the Children have regular contact. The Children

attend school in the district where Father lives.

[9] Mother and Father each believe that the other is a good and loving parent, as

do Grandparents. While Father acknowledges that Mother is better at dealing

with doctor appointments, both parents have been active with the Children and

their schooling through the years. The Children have a close relationship with

Mother and Father. In sum, Mother and Father have been relatively successful

in sharing the Children and acting in the best interests of the Children in the

two years since their separation.

[10] During an in-camera interview, the trial court spoke with eleven-year-old

A.G.R. to gain a better view of how the shared custody had been working from

her perspective. The court found A.G.R. to be a “well-adjusted young lady

Court of Appeals of Indiana | Memorandum Decision 03A05-1701-JP-236 | July 20, 2017 Page 4 of 9 with a keen understanding of the current situation and an obvious love for both

parents.” Appendix Vol. 2 at 12. Based on this conversation, the court found

that “the children seem to be immune to their parents’ conflict.” Id.

[11] At the final hearing on December 20, 2016, Mother expressed her desire to have

primary physical custody of the Children with Father exercising parenting time.

She believed the current arrangement was difficult on the Children, as well as

her and Father. Father, on the other hand, sought to continue their shared

parenting plan. The trial court’s in-camera interview with A.G.R. occurred

shortly after the final hearing.

[12] On January 3, 2017, the trial court issued its order regarding paternity, custody,

and child support. The court ordered, among other things, that the shared

custody arrangement continue. In this regard, the court found that “[t]he

children have adapted to the schedule well” and “have prospered by having

relatively equal time with each parent”. Id. at 13. Mother appeals from this

order. Additional facts will be provided below as needed.

Standard of Review

[13] The trial court entered findings in this case sua sponte. Thus, its 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. Further, we will set aside

the court’s finding or judgment only if they are clearly erroneous. Id.

Court of Appeals of Indiana | Memorandum Decision 03A05-1701-JP-236 | July 20, 2017 Page 5 of 9 [14] “Additionally, there is a well-established preference in Indiana ‘for granting

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, 178 (Ind. 1993)). As an appellate court, we are in a poor position

to look at a cold transcript 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. Montgomery, 59 N.E.3d at 349-50. To reverse a trial court’s custody

ruling, it is not enough that the evidence might have supported a different

conclusion; the evidence must positively require the conclusion contended for

by the appellant before there is a basis for reversal. Steele-Giri, 51 N.E.3d at 124.

“We may not reweigh the evidence or reassess witness credibility, and the

evidence should be viewed in a light most favorable to the judgment.”

Montgomery, 59 N.E.3d at 350.

[15] With respect to initial custody determinations, there is no presumption in favor

of either parent. See Ind. Code § 31-14-13-2. Rather, the trial court is tasked

with determining custody “in accordance with the best interests of the child.”

Id. This requires the consideration of all relevant factors, including the

following:

(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.

Court of Appeals of Indiana | Memorandum Decision 03A05-1701-JP-236 | July 20, 2017 Page 6 of 9 (4) The interaction and interrelationship of the child with:

(A) the child’s parents;

(B) the child’s siblings; and

(C) any other person who may significantly affect the child’s best interest.

(5) The child’s adjustment to home, school, and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent….

[16] Id.

Discussion & Decision

[17] Mother does not challenge any of the specific findings made by the trial court or

argue that the findings do not support the judgment. She simply argues that the

trial court failed to consider “uncontroverted evidence of Father’s withholding

Mother’s parenting time due to his prejudice against Mother’s same-sex

marriage” and evidence of domestic violence by Father. Appellant’s Brief at 4.

We reject Mother’s invitation for us to reweigh the evidence and judge the

credibility of the witnesses.

[18] First, we address Mother’s assertion that the trial court overlooked evidence of

a pattern of domestic violence perpetrated against her by Father. Mother

offered vague testimony at the final hearing regarding physical abuse that

allegedly occurred at some undefined point during her lengthy relationship with

Father. She also indicated that Father pulled on her and tripped her during the

Court of Appeals of Indiana | Memorandum Decision 03A05-1701-JP-236 | July 20, 2017 Page 7 of 9 incident at her parents’ home on August 11, 2015. Mother called a witness to

corroborate her claims of physical violence, but the friend indicated that she

only witnessed verbal arguments between the couple years ago. Further, in the

two years D.D. had been involved with Mother, she testified that she had never

personally witnessed any such physical violence. Under the circumstances, we

cannot say that the evidence required a finding that a pattern of domestic

violence existed in this case.

[19] Next, Mother makes a bald assertion that Father withheld parenting time from

her because of her same-sex marriage. Father, however, testified that he

withheld parenting time after the Wisconsin trip because Mother had taken the

Children out of state without his knowledge and he was fearful – based on

conversations with others – that she would do so again. While his actions may

not be defensible, it is not clear that they were based on the nature of Mother’s

relationship with D.D.

[20] Mother also asserts that Father and Grandparents have made inappropriate

comments to the Children about Mother’s relationship with D.D., which has

negatively impacted the Children. For example, Mother claims that Father and

his family have “communicated to the children that Mother and her partner will go

to hell for being together.” Appellant’s Brief at 10 (emphasis added). The record

does not support this statement.

[21] Father and Grandparents may disagree with Mother’s lifestyle, but the evidence

does not establish that they have communicated any negative feelings to the

Court of Appeals of Indiana | Memorandum Decision 03A05-1701-JP-236 | July 20, 2017 Page 8 of 9 Children. Further, during his testimony, Father agreed that Mother had a

constitutional right to marry D.D. and that Mother remained a fine parent with

whom he wanted to continue sharing joint custody of the Children.

[22] Mother’s claims of discrimination and negative effects on the Children are not

borne out in the record. Moreover, we reject her baseless claim that the trial

court denied her request for primary custody due to her relationship with D.D.

and Father’s objections thereto. The trial court’s custody determination is

amply supported by its findings.

[23] Judgment affirmed.

Kirsch, J. and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 03A05-1701-JP-236 | July 20, 2017 Page 9 of 9