FILED Jul 23 2020, 8:44 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Anthony J. Saunders Joel E. Harvey New Castle, Indiana New Castle, Indiana
IN THE COURT OF APPEALS OF INDIANA
Virginia Madden, July 23, 2020 Appellant-Respondent, Court of Appeals Case No. 19A-JP-2630 v. Appeal from the Henry Circuit Court Robert Phelps, The Honorable Kit C. Dean Crane, Appellee-Petitioner. Special Judge Trial Court Cause No. 33C01-1105-JP-16
Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 1 of 27 STATEMENT OF THE CASE [1] Appellant-Respondent, Virginia Madden (Mother), appeals the trial court’s
Order modifying custody of the parties’ minor child, B.P., in favor of Appellee-
Petitioner, Robert Phelps (Father), and ordering Mother to pay attorney’s fees
and parenting coordinator fees.
[2] We affirm in part and reverse in part.
ISSUES [3] Mother presents the court with four issues, which we restate as the following
three:
(1) Whether the trial court’s award of sole legal custody and primary physical custody to Father was clearly erroneous;
(2) Whether the trial court’s contempt finding against Mother and award of $1000 in attorney’s fees to Father was clearly erroneous; and
(3) Whether the trial court’s order that Mother pay $3,645.50 in parenting coordinator fees was clearly erroneous.
FACTS AND PROCEDURAL HISTORY [4] On January 20, 2011, B.P. was born to Mother and Father (collectively,
Parents). Parents, B.P., and Mother’s two children from a prior relationship
resided at a home on Prairie Knoll Drive in New Castle, Indiana, which had
been left in trust to Mother’s two older children by their deceased father. After
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 2 of 27 Parents terminated their relationship, Mother continued to reside at the Prairie
Knoll home for a time, and Father resided in Bloomington, Indiana. On April
9, 2012, Father’s paternity was established by entry of a judgment that provided
that Parents would share joint legal custody but Mother would have primary
physical custody of B.P. At the age of three, B.P. was diagnosed with a
language disorder and developmental delay. When he was four years old, B.P.
was diagnosed with autism spectrum disorder. It was recommended at that
time that B.P. receive more intensive school services than he was currently
receiving, that he continue with outpatient occupational and speech therapy,
and that Parents receive education and support to assist with consistent
parenting. B.P. has an individualized education plan at his public school. His
therapists have recommended that he engage in group activities outside of
school to assist in his social development.
[5] Parents’ attempts to co-parent B.P. were not without conflict. Between April
26, 2012, and January of 2018, Father filed three contempt motions and a rule
to show cause motion against Mother. During the same period, Mother filed
motions to modify child support and to mandate counseling for B.P. as well as
two motions seeking to have Father held in contempt and to have his parenting
time modified. Parents agreed to the use of a parenting coordinator. One
coordinator was engaged but withdrew when Mother did not pay her portion of
the coordinator’s fees.
[6] On February 5, 2018, after further litigation between Parents, the trial court
entered an order appointing Dr. Erica Kane (Dr. Kane) as a parenting
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 3 of 27 coordinator whose mandate was to assist Parents to resolve their issues without
court intervention. Dr. Kane was to make binding recommendations for the
parties if they were unable to agree, but she was not to “serve as a custody
evaluator in the case” or “offer a binding recommendation for a change in
[B.P.’s] primary physical residence[.]” (Appellant’s App. Vol. II, p. 47).
Parents were to pay equal shares of Dr. Kane’s fees, but the trial court’s
appointment order also provided that Dr. Kane had
the discretion to report to the [c]ourt that [she] desires to charge either party separately for individual contacts with that party or joint contacts made necessary by that party’s behavior. The [c]ourt shall have the power to review, reallocate and enforce the payment of the fees of the [parenting coordinator].
(Appellant’s App. Vol. II, pp. 43-44).
[7] The current phase of litigation between Parents began on March 16, 2018,
when Father filed a verified notice of intent to relocate to New Castle to take
advantage of an employment opportunity and to be closer to B.P. Father’s
notice also included a request to modify parenting time to two-week blocks
spent at each parent’s home. Mother objected to Father’s proposed
modification of parenting time. The trial court referred the matter to
mediation, but mediation was never scheduled.
[8] In the spring of 2018, Parents could not agree on whether B.P. should
participate in baseball and soccer. As per the parenting coordinator order, Dr.
Kane issued a binding recommendation that B.P. should participate because
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 4 of 27 those activities would assist in his socialization. B.P. attended all practices and
games when he was in Father’s care, but Mother did not take B.P. to sports
when he was with her.
[9] In May of 2018, Mother was notified by the trustees of the trust holding the
Prairie Knoll home that she would be required to vacate within thirty days.
Mother moved out of the Prairie Knoll home in June of 2018 but did not file a
notice of intent to relocate with the trial court. In June of 2018, the Department
of Child Services (DCS) substantiated a finding of neglect against Mother when
B.P. sustained bruising on his neck after one of Mother’s other children shoved
him while he was in Mother’s care. Parents participated in an informal
adjustment which was extended until January of 2019 because Mother did not
confirm her current address and had home inspections done at three different
homes during the adjustment. The closeout report for the informal adjustment
noted that Parents “will not agree on how to raise [B.P.] other than he does
need services to help him thrive.” (Exh. Vol., p. 73). Mother and Father have
reported each other to DCS on eleven occasions.
[10] Parents disagreed about Father’s summer 2018 parenting time. Father had
timely submitted his proposed dates, but Mother disagreed with his selected
schedule. In July of 2018, Dr. Kane made a binding recommendation that
Parents follow Father’s selected schedule for summer parenting time. On
August 1, 2018, Father filed a contempt motion against Mother alleging that
Mother had not followed Dr. Kane’s binding recommendations on summer
parenting time, Mother had moved from the Prairie Knoll home without filing
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 5 of 27 the required notice of intent to relocate, and Mother failed to communicate
with him. On August 28, 2018, the trial court found Mother in contempt for
refusing Father summer parenting time and ordering her to serve thirty days in
jail. The trial court allowed Mother to purge herself of her contempt by
providing Father with thirty-four days of consecutive parenting time. The trial
court also ordered Mother to pay $750 to Father’s attorney.
[11] On January 22, 2019, Father filed a motion for contempt and mediation seeking
payment of uninsured dental expenses Mother had been previously ordered to
pay, mediation of his March 16, 2018, parenting-time modification motion, and
payment of the $750 in attorney’s fees Mother had been ordered to pay after she
had been found in contempt. The parties engaged in mediation. On March 18,
2019, the mediator filed the Mediated Partial Agreement (MPA) with the trial
court that provided, inter alia, that Parents would communicate with each other
via email on decisions for B.P. regarding routine health care, education,
religion, and extracurricular activities. If one parent failed to object to the
other’s proposed decision on one of these issues within forty-eight hours, it was
considered an agreement. If no agreement was reached on a healthcare or
religious decision, either parent could petition the trial court for a hearing. Any
unresolved disagreement regarding extracurricular activities was to be referred
to the parenting coordinator for a binding recommendation. Mother was also
to provide Father within ten days with a current utility bill held in her name for
the Prairie Knoll home as well as proof of her payment of that utility bill. The
MPA provided that “Mother states that she is residing full time at [the Prairie
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 6 of 27 Knoll home].” (Appellant’s App. Vol. II, p. 68). The MPA provided that
“physical custody, parenting time, child support and 2018 uninsured health
expenses” were the issues remaining to be resolved by the trial court.
(Appellant’s App. Vol. II, p. 69). Mother signed the MPA, which was
subsequently approved by the trial court. Mother did not provide Father with
the utility bill and proof of payment required by the MPA.
[12] In May of 2019, Father moved to a home in New Castle that was located
approximately eight miles from his previous home. Father notified his attorney
of his move in April of 2019, but his attorney did not file a notice of intent to
relocate with the trial court. Father’s move did not result in any change in
B.P.’s care. Father did not alert Mother to his change of address, which
resulted in Mother calling law enforcement when she attempted to retrieve B.P.
at Father’s old address and was informed that Father had moved.
[13] Also in May of 2019, Father contacted Mother about B.P.’s participation in
summer soccer and baseball. Mother responded via email that she would have
to consult with her attorney about the matter. Mother never provided Father
with further input on B.P.’s summer sports, so Father enrolled him and
provided Mother with the schedule. Mother did not take B.P. to summer sports
when he was in her care. On May 6, 2019, Father filed a verified motion “to
address issues regarding custody and parenting time of [B.P.] and other issues
described in this Petition.” (Appellant’s App. Vol. II, p. 72).
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 7 of 27 [14] Parents could not agree regarding Mother’s desire that B.P. participate in
Conduct Curb, which is a school for children who have severe autism. B.P.
was receiving psychotherapy. Neither B.P.’s therapist nor his social worker
recommended that B.P. participate in the intensive treatment offered by
Conduct Curb.
[15] On June 25, 2019, Father filed a belated notice of intention to relocate with the
trial court providing notice that he had moved to his new residence in New
Castle. On June 26, 2019, Mother filed a contempt motion against Father
alleging that he had not followed the required procedures for making medical
and extracurricular activity decisions and had moved without filing a proper
notice of intent to relocate. Mother also filed a motion seeking an order
compelling B.P.’s attendance at Conduct Curb as well as a motion to have Dr.
Kane removed as parenting coordinator. On June 27, 2019, Father filed a
contempt motion against Mother for failing to provide him with the previously-
ordered utility bill and proof of payment for the Prairie Knoll home.
[16] On July 3, 2019, the trial court held a hearing on Mother’s motion to have Dr.
Kane removed as parenting coordinator. Dr. Kane testified that she had a
personal bias against Mother as a result of the allegations made by Mother in
her removal petition and that “I don’t think it’s my competence that’s in
question, I think that it’s [Mother] who has created this.” (Tr. Vol. II, p. 22).
On July 9, 2019, the trial court entered an order allowing Dr. Kane to withdraw
from the case and directing her to file her final report with the court.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 8 of 27 [17] On August 5, 2019, Dr. Kane submitted her final report to the trial court.
Mother had not been communicative with Dr. Kane regarding confirming her
address, regarding her non-compliance with binding recommendations,
inquiries about balances due, scheduling mediation, and her reasons for wishing
to enroll B.P. in Conduct Curb. It was Dr. Kane’s opinion that B.P. did not
meet the diagnostic criteria for autism spectrum disorder, that he was
responding very well to outpatient treatment, and that he did not require the
intensive level of intervention offered by Conduct Curb. Dr. Kane observed
that Mother had not participated in B.P.’s therapy for over a year, despite being
asked by his therapist several times. Dr. Kane had spoken with B.P.’s previous
therapist who believed that B.P.’s symptoms were the result of “high levels of
anxiety related to chronic parental conflict and Attention Deficit Disorder.”
(Appellant’s App. Vol. II, p. 89). It was Dr. Kane’s opinion that B.P. was more
than capable of learning in a general education classroom and that attending an
intensive intervention school like Conduct Curb when it was not necessary
could be demeaning for B.P. Dr. Kane observed that, given that Parents record
of bypassing her and reporting issues directly to law enforcement, DCS, or
filing motions with the court, it was unlikely that they would comply with
parenting coordination in the future without imposition of consequences for
non-compliance. Dr. Kane observed that Father had been arrested for domestic
battery against his then-current partner in March of 2018, but that the charges
were dismissed after Father participated in an intervention class and an online
domestic violence course. Father was also receiving mental health services
through the Veteran’s Administration. Dr. Kane opined that
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 9 of 27 [g]iven Mother’s history of contempt of court and refusal to comply with recommendations, binding recommendations, orders from the court, as well as this [parenting coordinator’s], the former [parenting coordinator’s], DCS’S, and [Youth Services Bureau’s] instructions, [B.P.’s] needs may be best met with Father as the primary custodian.
(Appellant’s App. Vol. II, p. 91). Dr. Kane recommended that Mother pay the
full balance owed to her in the amount of $3,645.50 within thirty days of the
filing of the report.
[18] On August 14, 2019, the trial court held a hearing on all pending motions.
Prior to beginning testimony, the trial court reviewed the issues to be addressed
at the hearing. Joint legal custody was not mentioned as an issue. Father asked
for primary custody of B.P. On cross-examination, Father confirmed that
Parents had joint legal custody, that as primary physical custodian Mother
made the majority of decisions about B.P., and that “[l]egally, I want to switch
that, so I can make decisions based on . . . him.” (Tr. Vol. III, p. 86). Father
understood that, as joint custodians, he and Mother were supposed to work
together on decisions about medical appointments and extracurricular activities,
but that they only worked well together when Mother got what she wanted.
When asked by Mother’s counsel, “but my client, even if you get what you
want, would still have joint legal custody rights, correct?” Father responded, “I
believe so, yes, . . . As I understand it.” (Tr. Vol. III, p. 98). Father testified
that Mother would frequently fail to respond to his emails or would respond
with a blank email. Mother would not answer Father when he asked about
exercising parenting time on Fridays when he was off work and she was Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 10 of 27 working, as provided for in the MPA. Father had contacted Conduct Curb and
learned that they recommended thirty-five hours of therapy per week. Father
renewed his request that Mother be held in contempt for not providing him
with a utility bill in her name and proof of payment for the Prairie Knoll home
as directed by the court-approved MPA. Father requested $1000 in attorney’s
fees as a sanction.
[19] Mother acknowledged in her testimony that she did not provide Father with the
required Prairie Knoll utility bill and proof of payment. Mother agreed it is in
B.P.’s best interests to participate in sports and confirmed that she lived close to
the location of his soccer and baseball practices. Mother testified that she
believed that Father had taken B.P. to have three cavities filled unnecessarily
just so that he could incur dental bills she would be required to pay. Mother did
not present any testimony regarding what she believed she owed Dr. Kane in
fees.
[20] On October 21, 2019, the trial court entered its Order on All Pending Matters in
which it awarded primary physical and sole legal custody of B.P. to Father.
The trial court found that a modification of physical custody to Father was
merited because it was in B.P.’s best interests and because there had been a
substantial and continuing change in several relevant factors, including Father’s
desire to have custody, Mother’s ability to act in B.P.’s best interests, Mother’s
ability to exercise good judgment, and Mother’s housing stability. The trial
court noted Father’s arrests for domestic battery with concern but found that
Father was participating in mental health counseling, appeared to be acting in
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 11 of 27 B.P.’s best interests, was consistently employed, and was capable of providing
for B.P.’s care. The trial court also noted that “Dr. Kane’s report to the [c]ourt
dated August 1, 2019, acknowledges that [B.P.’s] needs may be ‘best met’ with
Father having primary physical custody.” (Appellant’s App. Vol. II, p. 31).
The trial court found that it was no longer in B.P.’s best interests that Parents
share joint legal custody, observing that they were “unable to communicate and
cooperate regarding [B.P.]” (Appellant’s App. Vol. II, p. 32).
[21] The trial court further found that Father had moved from his last residence
without filing the required notice of intent to relocate as alleged by Mother in
her contempt motion. The trial court admonished Father to strictly comply
with the notice requirement in the future but chose not to sanction Father
because Father had alerted his attorney to the move and because Mother had
also moved without filing the required notice. The trial court found Mother in
contempt for failing to comply with the provision of the MPA requiring her to
provide a current utility bill in her name for the Prairie Knoll home and proof of
payment. The trial court further found that Mother knew at the time that she
signed the MPA that she could not provide what was required and that her
actions “in connection with this provision represent a bad faith effort to mislead
Father and the [c]ourt.” (Appellant’s App. Vol. II, p. 35). As a sanction, the
trial court ordered Mother to pay Father’s attorney $1000. The trial court also
ordered Mother to pay the $3,645.50 that Dr. Kane indicated in her August 1,
2019, report was due to her.
[22] Mother now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 12 of 27 DISCUSSION AND DECISION I. Custody
A. Standard of Review
[23] Mother appeals the trial court’s modification of legal and physical custody in
favor of Father. This court recently stated our standard of review in custody
matters as follows:
We review custody modifications for an abuse of discretion with a preference for granting latitude and deference to our trial judges in family law matters. This is because it is the trial court that observes the parties’ conduct and demeanor and hears their testimony firsthand. We will not reweigh the evidence or judge the credibility of the witnesses. Rather, 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. [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. It is not impossible to reverse a trial court’s decision regarding child custody on appeal, but given our deferential standard of review, it is relatively rare.
Hecht v. Hecht, 142 N.E.3d 1022, 1028-29 (Ind. Ct. App. 2020) (cleaned up).
[24] Neither party requested that the trial court enter special findings pursuant to
Indiana Trial Rule 52(A). When a trial court enters findings of fact and
conclusions of law sua sponte, those findings control only with respect to the
issues they cover, and the general judgment standard applies to issues upon
which no findings were entered. Ahls v. Ahls, 52 N.E.3d 797, 800 (Ind. Ct. App.
2016). Where the trial court entered findings, we consider whether the findings Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 13 of 27 are supported by the evidence and whether the findings support the judgment.
Id. We will only disregard a finding if it is clearly erroneous, meaning that there
are no facts or inferences in the record to support it. Id. Matters falling under
the general judgment standard are reviewed without reweighing evidence or
considering witness credibility and may be affirmed upon any theory consistent
with the evidence. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008).
B. Legal Custody
[25] Mother’s first challenge to the trial court’s award of sole legal custody to Father
is that the issue was not properly before the trial court. Mother argues that
“[t]he parties had not agreed that the issue of joint legal custody would be
contested and there was no written motion requesting a modification of legal
custody.” (Appellant’s Br. p. 9). Father responds that Parents put legal custody
at issue by filing open-ended requests to modify custody.
[26] In support of his argument, Father relies on Higginbotham v. Higginbotham, 822
N.E.2d 609, 610 (Ind. Ct. App. 2004), in which mother and father had joint
legal custody of their child, with primary physical custody resting with mother.
Id. Father subsequently filed a petition to modify custody, and the parties
agreed to a custody evaluation. Id. The evaluator recommended that custody
remain the same, with the addition of a parenting coordinator. Id. However,
the evaluator further recommended that if the trial court decided to grant sole
legal custody to one parent, it should be mother. Id. at 612. At the hearing on
father’s motion, the parties stipulated to the admission of the custody
evaluation and agreed with its recommendations. Id. After the trial court
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 14 of 27 awarded sole legal and physical custody to mother, father appealed, arguing
that the trial court had erred in modifying legal custody because the parties had
not placed legal custody at issue. Id. In affirming the trial court, we noted that
father’s motion had requested an “open-ended” modification of custody after
an evaluation and that the parties had agreed to the evaluator’s
recommendations about legal custody. Id. As such, we found the issue to be
“squarely before the trial court.” Id.
[27] Here, an examination of the substance of the entirety of Parents’ motions
reveals that their dispute pertained only to the physical custody of B.P. Legal
custody was never mentioned by either party. Although Father is correct that,
as in Higginbotham, he and Mother filed motions addressing “custody”,
Higginbotham is factually distinguishable because Father and Mother did not
agree to abide by any third-party’s custody evaluation. (Appellant’s App. Vol.
II, pp. 52, 54, 72). Other factors also lead us to conclude that the issue was not
properly before the trial court. The MPA listed “physical custody, parenting
time, child support and 2018 uninsured health expenses” as the only issues
remaining to be addressed by the trial court. (Appellant’s App. Vol. II, p. 69).
Notably, at the beginning of the August 15, 2019, hearing on all pending
matters, the trial court and the parties did not identify legal custody as a matter
to be addressed.
[28] Neither do we find that Parents consented to try the issue of joint legal custody
during the hearing. “[I]ssues raised by the pleadings can be altered by the
evidence adduced at trial where the parties have impliedly or expressly
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 15 of 27 consented to new issues being tried.” Bailey v. Bailey, 7 N.E.3d 340, 344 (Ind.
Ct. App. 2014). Although Father asserted during the hearing that he wanted to
legally change who made most of the decisions about B.P., when Mother’s
counsel observed that Mother would still have joint legal custody of B.P. even if
Father received primary physical custody, Father affirmed that was his
understanding. Thus, Mother did not believe that legal custody was in play,
and Father did not indicate that he sought sole legal custody. Neither party
submitted proposed findings of fact and conclusions requesting sole legal
custody.
[29] It has been long-established that trial courts may not sua sponte order a change
of custody. See, e.g., State ex rel. Davis v. Achor, 225 Ind. 319, 327, 75 N.E.2d
154, 157 (1947)). On the facts and circumstances before us, we conclude that
the trial court abused its discretion when it modified legal custody without a
request from either party. Given that we reverse the portion of the trial court’s
Order granting sole legal custody to Father, we do not address Mother’s
argument that insufficient evidence supported the trial court’s modification of
legal custody.
C. Physical Custody
[30] Mother also contends that the trial court’s Order modifying primary physical
custody of B.P. in favor of Father was clearly erroneous. Indiana Code section
31-14-13-6 provides that, after a custody order has been issued in a paternity
proceeding, a trial court may not modify custody unless modification is in the
best interests of the child and there is a substantial change in one or more of the
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 16 of 27 factors that the trial court may consider under Indiana Code section 31-14-13-2
(Section 2), including:
(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 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.
(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.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 17 of 27 [31] Here, the trial court concluded that the grant of primary physical custody to
Father was appropriate because it was in B.P.’s bests interests and there had
been a substantial and continuing change “in multiple relevant factors,”
including Father’s desire to have primary physical custody, Mother’s repeated
and continuing refusal to act in B.P.’s best interests, and Mother’s unstable
housing situation. (Appellant’s App. Vol. II, p. 31). The trial court also found
that Mother’s evasiveness and dishonesty to the trial court about the fact that
she was no longer living at the Prairie Knoll home raised serious concerns
about her judgment. These conclusions were supported by the trial court’s
findings and evidence in the record that Mother ignored Dr. Kane’s binding
recommendations about 2018 summer parenting time and B.P.’s participation
in summer sports, Mother desired to enroll B.P. in Conduct Curb despite the
fact that B.P.’s therapist and social worker advised against it, Mother failed to
pay two parenting coordinators, she failed to pay her share of B.P.’s medical
expenses, she had home evaluations at three separate homes during the DCS
informal adjustment, and she lied to the MPA mediator, Father, and the trial
court about continuing to live at Prairie Knoll. The trial court’s best interests
conclusion was further supported by its findings based on evidence in the record
that Father had been consistently employed, was capable of providing for B.P.,
owned his own home, and had ensured that B.P. arrived at school on time.
Because the trial court’s findings and conclusions were supported by evidence
in the record, we cannot say that they were clearly erroneous. See Ahls, 52
N.E.3d at 800.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 18 of 27 [32] Mother argues otherwise because she contends that the trial court only found
that one factor expressly listed in Section 2 had changed, namely, Father’s
desire for custody, and that there was no substantial change in that factor
because Father had always wanted custody. Section 2 provides that a trial
court “shall determine custody in accordance with the best interests of the
child” in light of “all relevant factors, including [the enumerated factors].”
(Emphasis added). Thus, the trial court must consider what is in the best
interests of the child, and the factors enumerated in the statute are not
exclusive. Here, the trial court found a substantial and continuing change in
one listed statutory factor, Father’s desire to have custody, as well as three non-
enumerated factors, namely, Mother’s failure to act in B.P.’s best interests, her
poor judgment, and her unstable housing situation. In addition, custody was
established by a paternity order in 2012, and Father filed his first request to
change custody on March 16, 2018, with his notice to relocate. Therefore,
there was a substantial change in the one statutorily-enumerated factor found
by the trial court.
[33] Mother also challenges the trial court’s finding that Dr. Kane recommended
primary physical custody rest with Father. Mother contends that the trial court
should not have considered Dr. Kane’s recommendation because “[b]y offering
a custody evaluation, she acted on her bias against . . . Mother and violated her
own charge from the [c]ourt in making a custody evaluation.” (Appellant’s Br.
pp. 12-13). We find this argument to be unpersuasive for at least two reasons.
First, the trial court’s order appointing Dr. Kane merely provided that she was
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 19 of 27 not allowed to “serve as a custody evaluator in the case” or “offer a binding
recommendation for change in [B.P.’s] primary physical residence,” not that
she could offer no opinion on the subject at all. (Appellant’s App. Vol. II, p.
47). There is no indication in the record that Dr. Kane acted as a formal
custody evaluator in this matter or that the trial court considered the
recommendation contained in Dr. Kane’s report to be binding on it or the
parties. In addition, the same trial court judge presided over both the hearing
on Mother’s petition to remove Dr. Kane and the final hearing in this matter.
The trial court judge was, therefore, aware of the interaction of the parties with
Dr. Kane and what Dr. Kane had said at the hearing about her personal bias
against Mother. It was within the trial court’s discretion to credit or discredit
Dr. Kane’s recommendation regarding physical custody in light of any potential
bias on Dr. Kane’s part and, as we are not allowed to reweigh the evidence,
Mother’s argument is contrary to our standard of review. See Hecht, 142 N.E.3d
at 1029.
[34] Mother also draws our attention to evidence in the record that Father had
moved six times since paternity had been established, Father had a pattern of
domestic violence that the trial court should have taken into account, and the
trial court disregarded Father’s testimony “about his ongoing mental health
treatments for anxiety and his belief that he has Post Traumatic Stress
Disorder.” (Appellant’s Br. p. 12). These arguments are also contrary to our
standard of review in that crediting them would entail consideration of evidence
that does not support the trial court’s determination and/or a reweighing of the
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 20 of 27 evidence. See Hecht, 142 N.E.3d at 1029. Mother’s argument regarding
Father’s mental health also mischaracterizes the record, as Father did not testify
at the August 15, 2019, hearing that he believed he had PTSD, and he
specifically denied that he had been formally diagnosed with PTSD. Given the
ample evidence supporting the trial court’s findings and conclusions, Mother
has failed to meet her burden of persuasion on appeal to show that the evidence
“positively require[d] the conclusion” that she have primary physical custody of
B.P. See id.
II. Contempt
[35] Mother next challenges the trial court’s grant of Father’s motion seeking to
have her held in contempt for failing to produce a utility bill with proof of
payment in her name for the Prairie Knoll home and the trial court’s award of
$1000 in attorney fees. “Civil contempt is failing to do something that a court
in a civil action has ordered to be done for the benefit of an opposing party.”
P.S. v. T.W., 80 N.E.3d 253, 256 (Ind. Ct. App. 2017). Trial courts have the
inherent power to punish litigants in order to maintain the dignity of the court,
secure obedience to process and rules, rebuke interference with the orderly
conduct of business, and to punish unseemly behavior. City of Gary v. Major,
822 N.E.2d 165, 169 (Ind. 2005). Whether a party is in contempt is a matter
left to the sound discretion of the trial court, and we will reverse a trial court’s
finding of contempt only if no evidence or inferences exist in the record to
support it. P.S., 80 N.E.3d at 256.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 21 of 27 [36] The gravamen of Mother’s argument regarding the trial court’s contempt
finding is that it was unjust for her to be held in contempt for failing to file the
required notice of relocation when Father did the same thing and was not held
in contempt. However, Mother’s argument is based on a mischaracterization of
the trial court’s ruling. The trial court did not find her in contempt for failing to
file a notice to relocate; rather, it held her in contempt for failing to produce to
Father the utility bill and proof of payment in her name for the Prairie Knoll
home as she was required to do once the trial court approved the parties’ MPA
and for entering into the MPA knowing that she could not produce those
things. The trial court found that “Mother’s actions in connection with this
provision [of the MPA] represent a bad faith effort to mislead Father and the
[c]ourt.” (Appellant’s App. Vol. II, p. 35). Mother does not address the
evidence in the record supporting the trial court’s findings regarding her
knowing violation of the MPA. As such, she has failed to persuade us that the
trial court acted outside of its discretion by finding her in contempt. See P.S., 80
N.E.3d at 256.
[37] As to the trial court’s award of $1000 in attorney’s fees to Father, Mother
argues that this portion of the trial court’s Order was clearly erroneous because
there was no evidence to support an award in that amount. Regardless of
consideration of economic resources, once a party is found in contempt, the
trial court has the inherent authority to compensate the aggrieved party for
losses and damages resulting from another’s contemptuous actions, including
an award of attorney’s fees. Scoleri v. Scoleri, 766 N.E.2d 1211, 1222 (Ind. Ct.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 22 of 27 App. 2002). “The determination of damages in a contempt proceeding is
within the trial court’s discretion, and we will reverse an award of damages
only if there is no evidence to support the award.” City of Gary, 822 N.E.2d at
172.
[38] We agree with Mother that there was no evidence in the record to support the
trial court’s award of $1000 in attorney’s fees to Father. Although Father
testified that he sought an award of $1000 in fees for his contempt motion, he
presented no evidence to support that request such as an attorney’s fee affidavit,
testimony establishing his attorney’s fee schedule and the time and expenses
incurred on the contempt motion, or even testimony that he had been billed
that amount for services rendered in connection with the contempt motion.
Because no evidence supported the award, we find it to be an abuse of the trial
court’s discretion and clearly erroneous. See id.; see also Ahls, 52 N.E.3d at 800.
Accordingly, we vacate the portion of the trial court’s Order awarding Father
$1000 in attorney’s fees in relation to his contempt motion.
III. Dr. Kane’s Fees
[39] Mother argues that the portion of the trial court’s Order directing her to pay
$3,645.50 is clearly erroneous because “there is no evidence to support this
disproportionate award of parenting coordinator fees[.]” (Appellant’s Br. p.
14). However, Dr. Kane’s final report was filed with the trial court without
objection by either party. In her report, Dr. Kane recommended to the trial
court that Mother pay her the full balance owed for her services in the amount
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 23 of 27 of $3,645.50. Therefore, there was evidence in the record to support the trial
court’s Order, and it is not clearly erroneous. See Ahls, 52 N.E.3d at 800.
[40] Mother also argues that the trial court’s Order that she pay $3,645.50 while
ordering Father to pay only $593.75 in parenting coordinator fees was clearly
erroneous because it contravened the parenting coordinator appointment order
directing Parents to split those fees evenly. However, Mother’s argument
overlooks the fact that the parenting coordinator appointment order also
provided that Dr. Kane had the authority to “charge either party separately for
individual contacts with that party or joint contacts made necessary by that
party’s behavior.” (Appellant’s App. Vol. II, p. 43). Therefore, Dr. Kane had
the authority to charge Mother more than Father. Because the trial court’s
Order was within the parameters of its previous order appointing Dr. Kane, its
determination that Mother should pay $3,645.50 in fees was supported by the
record and was, therefore, not clearly erroneous. See Ahls, 52 N.E.3d at 800.
CONCLUSION [41] Based on the foregoing, we conclude that the issue of legal custody was not
properly before the trial court and that its award of $1000 in attorney’s fees to
Father was clearly erroneous. Accordingly, we vacate those portions of the trial
court’s Order. We also conclude that the trial court’s grant of primary physical
custody, its finding that Mother was in contempt, and its order that Mother pay
$3,645.50 in parenting coordinator fees were not clearly erroneous.
[42] Affirmed in part and reversed and vacated in part.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 24 of 27 [43] Mathias, J. concurs
[44] Tavitas, J. concurs in result with separate opinion
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 25 of 27 IN THE COURT OF APPEALS OF INDIANA Virginia Madden, Court of Appeals Case No. 19A-JP-2630 Appellant-Respondent,
v.
Robert Phelps, Appellee-Petitioner.
Tavitas, Judge, concurring in result
[1] I concur in the result reached by the majority; however, notwithstanding
Mother’s failure to object below, [1] I write separately regarding Dr. Kane’s
recommendation that “[the Child’s] needs may be best met with Father as the
primary custodian[.]” Appellant’s App. Vol. II p. 91.
[2] Not only did Dr. Kane exceed the scope of her duties, as outlined in the trial
court’s order, but she also became an advocate. When parties work with a
court-appointed parenting coordinator, they expect to be aided by a neutral
official in resolving their disputes. The parties do not expect the parenting
coordinator to simultaneously assess the parties for the court or to advocate
[1] Mother did not object to Dr. Kane’s recommended change in custody by filing a petition for a hearing in the manner prescribed by the trial court’s order appointing Dr. Kane. See Appellant’s App. Vol. II pp. 44-45.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 26 of 27 regarding such matters as custody. This is the first step down a slippery slope
because such conflation of roles can sabotage the parent coordination process.
Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020 Page 27 of 27