MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Apr 25 2017, 9:49 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT Robert J. Nice Hayleigh J. Neumann The Nice Law Firm, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Randy Drake, April 25, 2017 Appellant, Court of Appeals Case No. 27A02-1608-JP-1915 v. Appeal from the Grant Superior Court Jenita McMillan, The Honorable Dana J. Appellee. Kenworthy, Judge The Honorable Brian F. McLane, Magistrate Trial Court Cause No. 27D02-1107-JP-507
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 1 of 15 Case Summary [1] Randy Drake (“Father”) appeals the trial court’s denial of his petition to modify
custody of his child, R.M.-D. We affirm.
Issue [2] The sole restated issue before us is whether the trial court’s denial of Father’s
petition to modify custody was clearly erroneous.
Facts [3] R.M.-D. is the child of Father and Jenita McMillan (“Mother”); he apparently
was born in 2011.1 Father was at the time and still is married to Julie Drake
(“Stepmother”), with whom Father has three older children. Father and
Stepmother have been married for twenty-five years and have lived in the same
house for over six years. Father lives and works in Kokomo and Mother lives
and works in Marion.
[4] After the original custody decree, Father filed a motion to modify. That motion
resulted in an order on January 27, 2015, establishing that Father had custody
of R.M.-D. from every Friday at noon to Monday at 6:00 p.m. and Mother had
custody from 6:00 p.m. Monday to noon on Friday. Father works from 6:00
a.m. to 4:30 p.m., Monday through Thursday, and Mother works from 2:00
1 His birthdate is not in the record before us, but the trial court’s August 8, 2016 order states that he was then five years old and this paternity action was initiated in July 2011.
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 2 of 15 p.m. Saturday to 6:00 a.m. Sunday and 2:00 p.m. Sunday to 6:00 a.m. Monday.
On March 30, 2016, Father filed another motion to modify custody of R.M.-D.
A hearing on the matter was twice continued at Mother’s request and was
finally held on August 1, 2016.
[5] At the hearing, evidence was presented that in January 2016, Mother had to
move because of a mortgage foreclosure on her previous residence and had
moved to a rental house. Mother believed that the rental house was in a better
location than her prior house. Mother also had the gas in her home turned off
for approximately three weeks, which affected only the stove. Mother testified
that she had financial difficulties prior to the foreclosure based in part on one to
two thousand dollars in debt incurred in previous custody proceedings with
Father; she also testified that she had financial difficulties prior to her gas being
shut off because Father had not been paying child support. The CCS indicates
that on December 3, 2015, Mother filed a rule to show cause why Father should
not be held in contempt for failing to pay previously-ordered attorney fees; on
January 11, 2016, Father paid those fees. Also, the records of the trial court
clerk indicated that, for some reason, Mother had not received child support
from Father after May 20, 2016 and until the date of the modification hearing.2
[6] Additionally, Mother received three infraction charges between January and
May 2016 for driving with a suspended license, which Mother said resulted
2 Father testified that he was unaware of why Mother would not have been receiving payments, which were supposed to be automatically withdrawn from this paycheck.
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 3 of 15 from unpaid parking tickets. Mother continued to drive R.M.-D. places while
her license was suspended. She presented evidence at the hearing that she had
completed and paid everything necessary to have her license reinstated. On
May 17, 2016, Mother also was charged with Level 6 felony intimidation and
Class B misdemeanor battery. The charges apparently were related to conduct
against Mother’s brother’s girlfriend, but the details and ultimate disposition of
the case is not in the record.
[7] Mother has three other children besides R.M.-D. Her oldest son had moved
out of the house at age seventeen to live with his father because he did not
follow Mother’s rules and often used inappropriate language. R.M.-D.
sometimes repeated such language as well, which Father corrected. At some
time one of Mother’s other sons, a sixteen-year-old, was facing charges in
juvenile court for unspecified conduct, apparently related to fraud of some kind.
This case was resolved by the time of the modification hearing.
[8] R.M.-D. was scheduled to start kindergarten immediately after the modification
hearing. Father had enrolled him at an “A”-rated school in Kokomo, while
Mother had enrolled him in a public school in Marion. Father also enrolled
R.M.-D. in basketball and baseball youth leagues. Mother never attended any
of his games. Mother and Father both apparently enrolled R.M.-D. in separate
preschools and he attended both of them. Father enrolled R.M.-D. in a private
preschool because he did not believe he was learning enough in the one Mother
had enrolled him in, and he also disagreed with Mother not always compelling
R.M.-D. to attend preschool. Mother disputed Father’s account of R.M.-D.’s
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 4 of 15 preschool progress. Both Mother and Father testified as to the difficulties they
have communicating regarding R.M.-D.’s care.
[9] On August 8, 2016, the trial court entered its order denying Father’s motion to
modify custody. It entered limited sua sponte findings with its order that read
in part:
5. Since the last order:
a. Mother has been evicted from her home in January, 2016;
b. One of Mother’s children from a prior relationship was arrested for charges in Juvenile Court;
c. Mother has had her gas turned off. Mother’s stove was the only appliance that operated on gas. Mother indicates the stoppage of service was for approximately 3 weeks;
d. Mother has pending driving offenses and criminal charges. The driving offenses all center around the suspension of her driver’s license. . . . Mother indicates her driving privileges should be reinstated soon. Mother has a pending case in Superior Court III for Intimidation (Level 6 Felony) and Battery (Class B Misdemeanor). This matter is still pending.
e. Mother continues to drive on her suspended driver’s license;
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 5 of 15 f. Father enrolled the child to play basketball and baseball. Mother never attended any of the games. Father contends Mother received copies of the game schedule, but Mother disputes ever receiving the schedule;
g. The parties continue to have no communication between them;
*****
i. Father continues to be married to his wife of 20+ years. The child has a good relationship with his step- mother.
6. Both parents desire to register the child for kindergarten in their own community. Although Mother has continued to demonstrate a significant degree of instability in her life, awarding Father custody of the child with a standard parenting time order would leave Mother with practically no time with the child given her work schedule. Further, given the absolute breakdown of communication between the parties, there is no indication that the parties would work out a mutually agreeable schedule absent court intervention. Accordingly, the court finds that it is in the child’s best interests that the prior custody order remain in place. . . .
App. pp. 11-12. Father now appeals.
Analysis [10] The trial court’s findings in this case were entered sua sponte. “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.
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 6 of 15 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 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.
[11] 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
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 7 of 15 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.
[12] Pursuant to Indiana Code Section 31-14-3-6, a trial court in a paternity
proceeding may not modify a child custody order unless a noncustodial parent
shows both that modification is in the best interest of the child, and there has
been a substantial change in one or more of the factors listed under Indiana
Code Section 31-14-13-2.3 Those factors are:
(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
3 In his brief, Father cites the statutes governing child custody following marital dissolution, Indiana Code Secctions 31-17-2-8 and 31-17-2-21. The substance of these provisions is nearly identical to those governing paternity proceedings.
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 8 of 15 (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.
[13] “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
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)). We further note that
when reviewing the denial of a motion to modify custody, as opposed to the
granting of such a motion, the appellant is appealing from a negative judgment.
Riggen v. Riggen, No. 67A04-1606-DR-1312, slip op. p. 4 (Ind. Ct. App. March
3, 2017). We will not reverse such a judgment unless the evidence leads to but
one conclusion and the trial court reached the opposite conclusion. Id. at 5.
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 9 of 15 [14] “When evaluating whether a change of circumstances has occurred that is
substantial enough to warrant a modification of custody, the context of the
whole environment must be judged . . . .” Montgomery, 59 N.E.3d at 350.
“‘[T]he effect on the child is what renders a change substantial or
inconsequential.’” In re Marriage of Sutton, 16 N.E.3d 481, 485 (Ind. Ct. App.
2014) (quoting Jarrell v. Jarrell, 5 N.E.3d 1186, 1193 (Ind. Ct. App. 2014), trans.
denied). “‘If one parent can demonstrate that the other has committed
misconduct so egregious that it places a child’s mental and physical welfare at
stake, the trial court may modify the custody order.’” Maddux v. Maddux, 40
N.E.3d 971, 979 (Ind. Ct. App. 2015) (quoting Hanson v. Spolnik, 685 N.E.2d
71, 78 (Ind. Ct. App. 1997), trans. denied). In a custody modification
proceeding, the trial court’s consideration generally should be limited to
evidence on matters occurring after the last custody proceeding between the
parties. See Ind. Code § 31-14-3-9.
[15] We also note that Mother did not file an appellee’s brief. “When an appellee
fails to submit a brief, we do not undertake the burden of developing appellee’s
arguments, and we apply a less stringent standard of review, that is, we may
reverse if the appellant establishes prima facie error.” Meisberger v. Bishop, 15
N.E.3d 653, 656 (Ind. Ct. App. 2014). This rule relieves us of the burden of
controverting arguments advanced in favor of reversal, which properly rests
with the appellee. Id. Prima facie error is error at first sight, on first
appearance, or on the face of it. J.K. v. T.C., 25 N.E.3d 179, 181 (Ind. Ct. App.
2015). Still, we are obligated to correctly apply the law to the facts in the record
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 10 of 15 to determine whether reversal is required. Tisdale v. Bolick, 978 N.E.2d 30, 34
(Ind. Ct. App. 2012). We also must keep in mind that decisions about
parenting time require us to give foremost consideration to the child’s best
interests. Meisberger, 15 N.E.3d at 656.
[16] Much of Father’s argument is based on findings the trial court did not expressly
make. He contends the trial court failed to consider the required statutory
factors for a custody modification, including R.M.-D.’s relationships with his
parents and siblings, his adjustment to home, school, and community, and
Mother’s mental health as reflected by her run-ins with law enforcement.
However, we emphasize that the trial court’s findings here were entered sua
sponte. It was under no obligation to enter findings that comprehensively
applied the evidence in the record to the statutory modification factors. And,
we may affirm the trial court’s judgment based on the record as a whole and
may look beyond its findings to do so.
[17] The trial court’s findings acknowledge that Mother has had her difficulties. It is
troubling that Mother repeatedly was ticketed for driving with a suspended
license and admittedly continued driving R.M.-D. places with a suspended
license. However, the only evidence in the record as to why Mother’s license
was suspended was because of a failure to pay parking tickets. She was not
driving while intoxicated or recklessly; in other words, there is no evidence she
was directly endangering R.M.-D. by engaging in this conduct. The same is
true of her pending charges for intimidation and battery, which was alleged to
be committed against her brother’s girlfriend. These charges were unresolved at
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 11 of 15 the time of the modification hearing and there was no evidence as to how they
impacted R.M.-D. or whether the incident took place in front of him.
[18] Father also directs us to the evidence regarding two of Mother’s older children.
One of the children moved out of the house before graduating from high school
because he did not want to comply with Mother’s rules and used inappropriate
language, some of which R.M.-D. began using. The other child was arrested
and was involved with juvenile court for unspecified conduct, but which
Mother described as concerning fraud. This evidence may indicate that
Mother’s older children could be incorrigible, and may reflect on her parenting,
but again, aside from some questionable language from R.M.-D., it is unclear
that the behavior of Mother’s older sons was so damaging that R.M.-D.’s
mental or physical health was endangered or that a change of custody was
mandated.
[19] There also was evidence presented regarding R.M.-D.’s pre-schooling and
participation in sports, with Father contending R.M.-D. did better in a
preschool Father enrolled him in and that Mother was not supportive of the
sports, given her failure to attend any games. Mother contested Father’s
description of R.M.-D.’s academic progress, or lack thereof, in the preschool
she enrolled him in as opposed to Father’s; in any case, we are not convinced
that questionable progress while in preschool should be a basis for modifying
child custody. The same can be said for Mother not insisting that R.M.-D.
attend every day of preschool. As for Mother’s non-support of R.M.-D.’s
athletics, again it is unclear what a change of custody would alter in that
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 12 of 15 respect, and the emphasis to be placed on a child’s athletics is a matter upon
which reasonable parental minds could differ. If anything, the fact that Father
is able to encourage and arrange R.M.-D.’s participation in athletics under the
current custody arrangement is an indication that it need not be changed at this
time.
[20] Evidence also was presented regarding Mother having to move in January 2016
after foreclosure on her house, and having her gas utility service shut off for
about three weeks. Mother testified that in part, her financial difficulties
stemmed from prior custody disputes with Father and an interruption in child
support payments from Father in the summer of 2016. Regardless of the cause,
Mother also testified that her new rental residence was in a better location than
the previous residence; there is no evidence Mother has been homeless and no
evidence that the present residence is inadequate for raising a child.
Additionally, the interruption in gas service was not extremely detrimental,
given that it only affected Mother’s stove. There is a lack of evidence that R.-
M.D. was significantly negatively impacted by Mother’s move from one
residence to another or the temporary cessation of gas service to the home.
[21] More generally, Mother’s alleged “instability” does not appear to be a new
phenomenon, nor does Father’s questioning of her raising of her other children.
During closing argument, counsel for Father stated in part:
I have [a] client that has raised three children successfully, they have been athletic, they have been scholar [sic], you met them all last time and saw what he and his wife have done in their
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 13 of 15 household. Again avoiding political correctness her children are thugs. They have been in this Courtroom, you heard about what’s still going on with the, she told us they are being pulled away for, by the police from her household. This is the environment that [R.M.-D.] is in, it is a sess [sic] pool, it is an unstable environment. . . . [Habit for] humanity gives them a house with a minimum payment and they can’t stay there, they’ve been foreclose [sic] out of that, you don’t hear about that too often but that’s what happened here. Utilities where shut off before we talked about that last time and its happened again.
Tr. pp. 110-11. “[A] petition to modify is not a vehicle to relitigate the initial
custody determination as to who might make the better parent.” Dwyer v.
Wynkoop, 684 N.E.2d 245, 249 (Ind. Ct. App. 1997), trans. denied. In large part,
that appears to be what Father has attempted to do here.
[22] Finally, we address Father’s contention that it was improper for the trial court
to find that a modification of custody could result in very limited parenting time
for Mother, given her current work schedule. We cannot dismiss this as an
improper consideration. There was little evidence presented as to Mother’s
ability to change her work schedule, which required her to work for most of
every weekend. A modification of custody as sought by Father necessarily
would limit Mother’s parenting time to weekends. “[N]ot only does a
noncustodial parent have a presumed right of parenting time, but the child has
the correlative right to receive parenting time because it is presumed to be in the
child’s best interest.” Perkinson v. Perkinson, 989 N.E.2d 758, 764 (Ind. 2013). A
change in custody that would severely limit Mother’s parenting time
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 14 of 15 presumably would not be in R.M.-D.’s best interests and the trial court did not
err in noting that fact.
[23] This is a case in which, admittedly, the evidence conceivably could have
supported a different result. But that is not enough to compel reversal on
appeal, particularly given that Father had the burden of demonstrating the
necessity of a modification of custody. In the absence of compelling evidence
that R.M.-D. currently is endangered by being in Mother’s primary custody, we
decline to substitute our judgment for that of the trial court in such a highly
fact-sensitive matter.
Conclusion [24] The trial court’s denial of Father’s petition to modify custody was not clearly
erroneous. We affirm.
[25] Affirmed.
Kirsch, J., concurs.
Robb, J., concurs in result without opinion.
Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017 Page 15 of 15