Evan C. Reinhardt v. Melissa K. Betzner (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 18 2019, 9:34 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
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Evan C. Reinhardt Edward L. Walter
Indianapolis, Indiana Pritzke & Davis, LLP
Greenfield, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Evan C. Reinhardt, April 18, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-JP-2748
v. Appeal from the Marion Superior
Court
Melissa K. Betzner, The Honorable John M.T. Chavis,
Appellee-Petitioner. II, Judge
Trial Court Cause No.
49D05-0910-JP-49816
Najam, Judge.
Statement of the Case
[1] Evan C. Reinhardt (“Father”) appeals from the trial court’s order granting in
part and denying in part his petition to modify parenting time and for a change
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of school for his son B.B. (“Child”). Father raises two issues for our review,
which we consolidate and restate as a single issue, namely, whether the trial
court erred when it denied, in part, his petition. We affirm.
Facts and Procedural History
[2] Father and Melissa Betzner (“Mother”) have one child together, Child, who
was born out of wedlock in 2009. Father established his paternity of Child, and
Father and Mother agreed that Mother would have physical custody of Child,
with Father exercising parenting time. The trial court adopted the parties’
agreed judgment. Father subsequently married K.R., and they had two
children together. Throughout Child’s life, Father and Mother have worked
well together to manage parenting time and other issues related to Child.
[3] On March 16, 2018, Father filed a verified petition to modify parenting time
and child support and for a change of Child’s school. 1 Following a hearing on
July 26, the trial court entered findings and conclusions as follows:
1. Father is requesting more parenting time with minor child
(50/50), a modification of child support and of his school
placement from Mother’s school district to Father’s school
district.
2. The Court recognizes that both Mother and Father appear to
love minor child dearly, including their extended families.
1
Father has not included a copy of his verified petition in the appendix, which hinders our review of his
contentions on appeal. See Ind. Appellate Rule 50(A)(2)(f).
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3. Minor child has completed grades kindergarten through
second grade at Harrison Parkway Elementary School within the
Hamilton Southeastern School District. Mother moved
within the Hamilton Southeastern School District prior to minor
child enrolling in kindergarten. Mother and Father researched
and discussed the potential for private schools prior to her move
from the Northwest side of Indianapolis to Fishers. Mother
received written approval from Father to relocate to the
Hamilton Southeastern School District per the January 2013
Agreed Entry.
4. Now, Father desires that minor child attend Indianapolis
Public School #84, more commonly known as the Center for
Inquiry School (“CFI”).
5. IPS accepted minor child for admission into CFI through its
lottery system. If minor child attends CFI 84, then all of his
siblings are also automatically accepted to CFI 84. Although
high ability curriculum is offered at CFI 84 through individual
teacher application, the high ability students are encouraged to
apply to Merle Sidener Academy for High Ability Students.
6. Minor child is enrolled in the high ability math and language
arts at Harrison Parkway Elementary where it is offered in the
general curriculum. The undisputed evidence establishes that the
minor child is excelling academically by scoring above the
Harrison Parkway school average and the state of Indiana
average for children in his comparable grade level on the
NWEA standardized testing.
7. Both parents testified that the minor child recently
experienced some social issues in summer camp where he did not
want to participate in the camp and sat outside the entrance
while refusing to participate. Father also testified that he
witnessed some of the minor child’s friends on one occasion be
congenial and on another occasion be unsociable to him at
dropoff/pick-up from before-and-after school care. Neither
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parent discussed counseling for the minor child with the other.
Minor child has not engaged in any counseling nor has either
parent suggested such to deal with the social issues.
8. The Court does not consider Father’s request to modify
parenting time a substantial change in circumstance pursuant to
Ind. Code § 31-14-13-6[,] nor is his request to modify minor
child’s school placement in his best interest based upon the
evidence presented during the hearing. Modifying parenting time
to 50/50 is a de facto modification of custody subject to the
substantial change in circumstance standard. Julie C. v. Andrew
C., 924 N.E. 2d 1249, 1256 (Ind. Ct. App. 2010).
9. Father’s request to modify school placement is largely based
upon a best interest of the child standard within Tarry v. Mason,
710 N.E.2d 215 (Ind. Ct. App. 1999). Tarry is contrasted
from this case. In Tarry, that Court kept that child in the current
school district of Clark-Pleasant with Father rather than allow
the child to modify school placement to Mother’s new location
even though she was still the physical custodian. Mother in this
case has not moved nor is seeking modification of the current
school placement due to a requested relocation.
10. Father’s request to modify school attendance from Harrison
Parkway Elementary School to CFI is hereby denied.
11. Father’s request for increased parenting time is hereby
approved due to Mother’s agreement proposed in open Court for
additional parenting time and Father’s strong commitment
to continue to be an active part of minor child’s life. Therefore,
Father shall receive Sunday overnights on those alternating
weekends he has minor child.
12. Father’s support obligation shall not be modified and Mother
shall continue to be ordered to pay for before-school and after-
school daycare along with summer camps.
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Appellant’s App. at 9-12. This appeal ensued.
Discussion and Decision
[4] Father contends that the trial court erred when it denied, in part, his petition for
a modification of parenting time and denied his request that Child change
schools. In particular, Father maintains that the evidence shows a substantial
change of circumstances to support more parenting time, and he asserts that
both more parenting time and a change of school is in Child’s best interest.
Father does not address these issues with separate arguments in his brief on
appeal, but he asserts, generally, that the evidence does not support the trial
court’s judgment.
[5] This court has held that “an increase to fifty percent of all parenting time
amounts to a modification of physical custody.” Julie C. v. Andrew C., 924
N.E.2d 1249, 1256 (Ind. Ct. App. 2010). As the trial court found, because
Father sought a modification of parenting time that would have resulted in a
fifty-fifty split, his petition was equivalent to a petition for modification of
custody. “A child custody determination is very fact-sensitive.” Steele-Giri v.
Steele (In re Marriage of Steele-Giri), 51 N.E.3d 119, 125 (Ind. 2016). Where, as
here, the trial court’s judgment is supported by findings of fact following an
evidentiary hearing, we review the trial court’s judgment under our clearly
erroneous standard of review. E.g., id. “Findings of fact are clearly erroneous
when the record lacks any evidence or reasonable inferences from the evidence
to support them.” Id.Court of Appeals of Indiana | Memorandum Decision 18A-JP-2748 | April 18, 2019 Page 5 of 9
[6] “[I]n order for the trial court to modify custody, it must find both that: 1)
modification is in the best interests of the child; and 2) there is a substantial
change in one or more of the factors enumerated in [Indiana Code Section 31-
17-2-8 (2018)].” Id. at 127. In determining whether modification would be in
the child’s best interests, a trial court must consider all relevant factors,
including changes in circumstances of both the custodial and noncustodial
parents and the resulting and potential advantages and disadvantages to the
child. Joe v. Lebow, 670 N.E.2d 9, 23 (Ind. Ct. App. 1996). And the factors
enumerated in Indiana Code Section 31-17-2-8 are, in relevant part, as follows:
The court shall determine custody and enter a custody order in
accordance with the best interests of the child. In determining
the best interests of the child, there is no presumption favoring
either parent. The court shall consider all relevant factors,
including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or 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 parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the
child’s best interests.
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(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community. . . .
Although both parents are presumed equally entitled to custody in the initial
custody determination, a petitioner seeking subsequent modification bears the
burden of demonstrating the existing custody order should be altered.
Bettencourt v. Ford, 822 N.E.2d 989, 998 (Ind. Ct. App. 2005).
[7] Initially, Father asserts that the trial court “erred by adopting [Mother]’s
proposed order essentially verbatim[.]” Appellant’s Br. at 11. “As our
[S]upreme [C]ourt has observed, the practice of accepting verbatim a party’s
proposed findings of fact ‘weakens our confidence as an appellate court that the
findings are the result of considered judgment by the trial court.’” Nickels v.
Nickels, 834 N.E.2d 1091, 1096 (Ind. Ct. App. 2005) (quoting Cook v. Whitsell-
Sherman, 796 N.E.2d 271, 273 n.1 (Ind. 2003)). However, the practice of
adopting a party’s proposed findings is not prohibited. Id. “Thus, although we
by no means encourage the wholesale adoption of a party’s proposed findings
and conclusions, the critical inquiry is whether such findings, as adopted by the
court, are clearly erroneous.” Id.[8] Father contends that the trial court’s findings “included unsupported facts
which do not support its conclusions of law.” Appellant’s Br. at 11.
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Specifically, Father maintains that the trial court “essentially ignore[d] the
evidence of changes in [Father’s] family and their close ties to [Child]” as well
as Child’s “own request to change schools and attend CFI.” Id. Father asserts
that, “[i]n overlooking [that evidence], the Court has rendered findings of fact
which do not support its judgment because [the Court] has failed to sufficiently
consider” the statutory factors. Id.[9] Father also maintains that “he has firmly established that more than one of the
factors enumerated in Indiana Code [Section] 31-17-2-8 has changed
substantially and he has established that the proposed modification is in
[Child’s] best interest because of the changes in those factors.” Id. at 7. In
support of that contention, Father cites the evidence that: Child “was
beginning to struggle socially” and a move to CFI “would be a better setting”
for him; Father had gotten married and had two children who had bonded with
Child; Father’s grandmother lives with them and has bonded with Child; Child
has friends in Father’s neighborhood; and Mother agreed that it was important
for Child to spend time with Father. Id. at 9.
[10] Father’s arguments on appeal are merely requests that we reweigh the evidence,
which we cannot do. First, Father’s contention that the trial court relied on
“unsupported facts” is without merit. We have reviewed the record, and each
of the court’s findings is supported by the evidence. Second, Mother presented
evidence that: Child is “excelling” academically in his current school; Father
married K.R. in 2010, which was prior to the parties’ agreed entry regarding
parenting time and, thus, cannot be considered a change in circumstances; and
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Child’s “social issues” have not been serious enough to warrant counseling for
Child. Tr. at 115, 127. Third, the trial court expressly considered Child’s
relationships with both parents and their “extended families.” Appellant’s App.
at 10. Finally, given Child’s young age, Child’s desire to attend CFI does not
warrant significant weight.
[11] Father has not demonstrated that the trial court’s order, which increased
Father’s parenting time by one overnight every two weeks, was clearly
erroneous. The evidence supports the trial court’s findings, and the findings
support the court’s conclusions. Accordingly, we affirm.
[12] Affirmed.
Baker, J., and Robb, J., concur.
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