Christina Feiock v. Korey Ricciardi (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 16 2016, 5:59 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Erik H. Carter Donna Jameson
Carter Legal Services LLC Greenwood, Indiana
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christina Feiock, February 16, 2016
Appellant-Respondent, Court of Appeals Case No.
49A02-1506-JP-611
v. Appeal from the Marion Superior
Court
Korey Ricciardi, The Honorable David Dreyer,
Appellee-Petitioner. Special Judge
Trial Court Cause No.
49D10-1003-JP-10744
Pyle, Judge.
Statement of the Case
[1] Christina Feiock (“Mother”) appeals the trial court’s order granting Korey
Ricciardi’s (“Father”) motion to modify physical and legal custody of the
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couple’s eight-year-old son. Here, when the son was three years old, Father
established paternity of him and was awarded parenting time. Mother,
however, did not comply with the trial court’s orders regarding parenting time.
She was later found to be in contempt on more than one occasion; nevertheless,
she continued to deny parenting time to Father. During the custody
modification hearing underlying this appeal, the trial court offered a modified
cross-examination procedure to Mother, who appeared pro se. She did not
object to the suggested procedure and engaged in a process where she discussed
and refined her cross-examination questions with the trial court before they
were posed to Father.
[2] On appeal, Mother raises multiple arguments, which we have consolidated and
restate as the following: (1) the trial court violated her right to due process
during the custody modification hearing by denying her right to cross-examine
Father; and (2) the trial court abused its discretion by granting Father’s petition
to modify physical and legal custody. Concluding that Mother waived her due
process argument by failing to object to the trial court’s suggested cross-
examination procedure and that Mother’s arguments challenging the trial order
modifying custody are nothing more than a request to reweigh the evidence and
reassess the credibility of witnesses, we affirm the trial court’s order.
[3] We affirm.
Issues
1. Whether the trial court violated Mother’s right to due process
during the custody modification hearing.
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2. Whether the trial court abused its discretion by granting
Father’s petition to modify physical and legal custody.
Facts
[4] Mother and Father are the parents of C.R., who was born in October 2006.
Mother and Father were not married but lived together after C.R.’s birth until
2010.
[5] In March 2010, Father filed a petition to establish paternity of C.R. Thereafter,
on June 16, 2010, Father and Mother filed an “Agreed Entry and Order
Establishing Paternity” (“Agreed Order”), which the trial court accepted. (App.
27). In this Agreed Order, the parties agreed that Mother would have sole
physical custody of C.R. and that they would share joint legal custody. They
also agreed that Father would have parenting time pursuant to the Indiana
Parenting Time Guidelines, with the initial four months of Father’s overnight
parenting time supervised by paternal grandparents followed by unsupervised
overnight parenting time.
[6] Approximately six months later, in December 2010, Father filed a petition for a
contempt citation and rule to show cause (“petition for contempt”), seeking for
the trial court to find Mother in contempt for failing to let Father have his
parenting time.
[7] On February 4, 2011, Father filed a petition to modify custody. Father also
filed another petition for contempt regarding Mother’s denial of his parenting
time, as well as, a petition for a Domestic Relations Counseling Bureau
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(“DRCB”) investigation and report. In April 2011, the DRCB met with the
parents and then filed a report with the trial court in May 2011. 1
[8] On September 14, 2011, the trial court issued an order, finding that there had
not been a substantial change in one of the statutory custody modification
factors and denying Father’s petition to modify custody. The trial court,
however, found Mother in contempt for failing to comply with the trial court’s
June 2010 Agreed Order regarding Father’s parenting time. The trial court
ruled that sanctions against Mother were to be held under advisement pending
her compliance with the trial court’s current order. Additionally, the trial court
ruled that Father was entitled to make up the missed parenting time, and it
modified Father’s parenting time so that he would “have parenting time in
excess of the Indiana Parenting Time Guidelines.” (App. 34). Finally, the trial
court ordered Mother and Father to complete parenting classes and to refrain
from making any “disparaging remarks regarding the other parent or otherwise
show disrespect for the other [p]arent in the presence of [C.R.].” (App. 35).
[9] A few weeks later, on September, 29, 2011, the trial court held a hearing and
determined that Father was entitled to fourteen overnight parenting time visits.
The trial court again ruled that sanctions against Mother were to be held under
advisement pending her compliance with the trial court’s current order.
1
This report is not included in the record on appeal.
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Additionally, the trial court directed Father to ensure that C.R. was given his
medication as directed by the child’s doctor.2
[10] One month later, on October 28, 2011, Father filed an emergency petition for
contempt and a request for sanctions. On November 17, 2011, the trial court
held a hearing on Father’s contempt petition. On November 22, 2011, the trial
court issued an order, finding Mother “in contempt of the Court’s orders on
parenting time as entered on June 16, 2010, and September 14, 2011” for
denying Father his parenting time on October 21-24, 2011. (Appellee’s App. 2).
The trial court ruled that Father was entitled to make up the denied parenting
time. The trial court also determined that “[a]s sanctions against Mother for
her contempt,” she was required to pay $600.00 of Father’s attorney fees.
(Appellee’s App. 3). Additionally, the trial court ordered Mother to consult
with a counselor to assist her with scheduling parenting time.
[11] On August 16, 2012, Father filed a second petition to modify custody, seeking
to modify both legal and physical custody. It is this petition that is the subject
of this appeal. In his petition, Father alternatively sought to modify his
parenting time to obtain additional time. Additionally, Father filed a motion
for a change of judge, and the case was transferred to the Honorable David
Dreyer in September 2012.
2
C.R. has allergies and asthma.
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[12] On November 1, 2012, Mother filed a pro se petition for contempt, alleging that
Father had not completed his parenting classes and had failed to give C.R. his
prescribed medication. That same day, Mother also filed a pro se “emergency”
petition to modify custody. (App. 39). In her petition, Mother asserted that she
was concerned for C.R.’s health and well-being while with Father, and she
sought to have his overnight parenting time temporarily withheld.
[13] On November 5, 2012, Father filed a petition for contempt and a motion for a
DRCB evaluation. The trial court approved the evaluation motion and ordered
the parties to participate in the DRCB evaluation.
[14] On December 14, 2012, Father filed another petition for contempt, asserting
that Mother had refused to allow Father to have his holiday parenting time.
[15] On January 28, 2013, Mother filed another pro se “emergency” petition to
modify custody. (App. 43). Mother again asserted that she was concerned for
C.R.’s health and well-being while with Father, and she sought to have Father’s
overnight parenting time temporarily withheld.
[16] In February 2013, Diane Elliott (“Elliott”) of the DRCB met with the parents
for an evaluation. She filed an updated DRCB report with the trial court in
March 2013.3
3
This report is not included in the record on appeal.
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[17] On March 5, 2013, Father filed an additional petition for contempt, asserting
that Mother had defied the trial court’s orders regarding parenting time by
refusing to allow Father to have his parenting time and refusing to allow him to
make up his missed parenting time.
[18] On April 22, 2013, Father sought an expedited hearing on his contempt
petitions because Mother was still denying parenting time to him. The trial
court then held a hearing on May 23, 2013. On June 10, 2013, the trial court
issued an order, finding Mother “in contempt for unjustified and unexplained
denial of parenting time on repeated occasions, totaling at least 38 overnight
visits and 58 evening hours.” (App. 50). The trial court also sanctioned
Mother by ordering her to spend ten days in jail but held that commitment in
abeyance pending the next hearing on October 4, 2013.
[19] Thereafter, on June 19, 2013, Mother filed a motion for the appointment of a
guardian ad litem, which the trial court denied.
[20] On August 8, 2013, Father filed yet another petition for contempt, asserting that
Mother had continued to defy the trial court’s orders regarding parenting time.
Father asserted that Mother had interfered with his parenting time, including
“[m]aking unsubstantiated allegations of neglect to CPS[.]” (App. 61). Father
also requested that the trial court grant him sole legal and physical custody
because “Mother’s interference with Father’s parenting time [wa]s a substantial
change in custody as it interfere[d] and [wa]s a detriment to the Father-child
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relationship[.]” (App. 61) (citing In re Paternity of J.T., 988 N.E.2d 398 (Ind. Ct.
App. 2013)).
[21] On October 4, 2013, the trial court held a hearing and issued an order on the
pending contempt petitions and on Mother’s compliance with the trial court’s
June 10, 2013 order regarding parenting time. The trial court determined that
Father was entitled to make up parenting time for two overnight visits. The
trial court also took Father’s custody modification request and any contempt
sanctions under advisement. Additionally, the trial court, by separate order,
ordered the parties to go back to DRCB on December 1, 2013, so that the
DRCB report on custody and parenting time could be updated. Father
attended the scheduled DRCB evaluation, but Mother did not.
[22] On December 18, 2013, Mother, by counsel, filed a petition for contempt,
alleging that Father had failed to return C.R.’s medication to Mother, which
she argued was required by the Indiana Parenting Time Guidelines.
[23] On January 23, 2014, Father filed another petition for contempt, alleging that
Mother had failed to appear at the scheduled DRCB evaluation update. Father
also alleged that Mother had failed to keep him informed of C.R.’s medical
appointments and that she had tried to prevent Father from attending these
appointments and obtaining medication at the pharmacy for C.R.
[24] That same day, Father filed, pursuant to Trial Rule 12(B)(6), a motion to
dismiss Mother’s contempt petition. Father argued that Mother’s petition failed
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to state a claim upon which relief could be granted because he had not willfully
disobeyed a court order or the Parenting Time Guidelines.
[25] On February 7, 2014, the trial court held a hearing on the parties’ contempt
petitions. The trial court directed the parties to “take all steps necessary to
complete the DRCB evaluation” and to “strictly follow the Indiana Parenting
Time Guidelines regarding all necessary medications” for C.R. (App. 74).
[26] In March 2014, Mother filed a report with the police department and alleged
that Father had raped her when she conceived C.R. in 2006.
[27] On May 30, 2014, Father filed a petition for contempt, alleging that Mother
had once again failed to comply with the trial court’s orders regarding parenting
time. Father also alleged that Mother had failed to include Father in parenting
decisions and that Mother was going to advance C.R. into the next grade level
despite a recommendation from the school to hold him back in first grade
because of his poor reading skills.
[28] Shortly thereafter, on June 9, 2014, Mother filed, in Hendricks County, a
petition for a protective order against Father. The Hendricks Superior Court
granted a temporary ex parte order of protection. Father then sought to have
this cause transferred to the parties’ pending Marion County paternity cause,
and he filed a petition for a protective order against Mother.
[29] On August 7, 2014, Father filed an additional petition for contempt. Father
alleged that, after Mother had obtained her protective order, he was required to
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have his mother (“Paternal Grandmother”) pick up C.R. when it was Father’s
parenting time and that Mother had interfered with Father’s parenting time
when she failed to comply with the drop off schedule for Father’s visits.
[30] On August 11, 2014, after Mother’s protective order cause had been transferred
to Marion County, the trial court held a hearing and determined that the
“[e]vidence was not sufficient to warrant the entry of a protective [order] under
Indiana law.” (App. 117). The trial court terminated Mother’s prior temporary
protective order.
[31] In August 2014, DRCB submitted a second report to the trial court.4
Thereafter, Mother filed a motion for a second custody evaluation. Father then
filed an objection to Mother’s custody evaluation motion. Father asserted that
Mother was “unhappy” with the DRCB report because it recommended that he
be granted sole custody, and he argued that Mother’s motion was nothing more
than an attempt to “‘shop around’ for a custody evaluation that would benefit
her” and an attempt to delay the proceedings. (Appellee’s App. 9).
[32] On March 4, and March 18, 2015, Father filed two more petitions for
contempt. In these petitions, Father alleged that Mother continued to deny and
impede his parenting time and failed to follow the trial court’s orders.
4
This DRCB report is not included in the record on appeal.
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[33] On March 20, 2015, the trial court held a hearing, during which both parties
were represented by counsel. Father presented testimony from C.R.’s
elementary school principal, Ray Gyori-Helmuth (“Principal Helmuth”), who
testified that C.R. was academically behind his second grade class and required
the highest level of academic intervention. Principal Helmuth testified that he
had previously recommended that C.R. repeat the first grade and that Father
had agreed, but Mother had disagreed. He testified that Mother had said that
she would work with C.R. during the summer and catch him up to his current
grade level, but C.R. returned to school for second grade and continued to have
academic problems. Principal Helmuth testified that he had recommended that
C.R. be held back and repeat the second grade at the end of his second grade
year but that Mother had again disagreed and wanted to move C.R. to the third
grade. The principal also testified regarding his concerns about C.R. continuing
to fall behind academically and the negative effect it would have on his
confidence level. The hearing ended following Principal Helmuth’s testimony,
and the trial court instructed the parties to discuss mediation and attempt to
negotiate any pending motions.
[34] That evening after the hearing, Mother sent an email to Principal Helmuth,
commenting on his testimony that day and debating the need for C.R. to be
held back in his current grade. Mother also threatened to report the principal to
the school board because he had testified at the hearing.
[35] On April 13, 2015, Mother, no longer represented by counsel, filed a pro se
petition for contempt. In her motion, Mother alleged that she had experienced
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multiple difficulties with Father during parenting time visits, including Father’s
failure to return C.R.’s clothes in a clean condition, failure to administer
medication to C.R., and failure to allow C.R. to talk to Mother during his visits
with Father. That same day, Mother filed a motion for a change of judge,
which the trial court denied.
[36] On April 30 and May 1, 2015, the trial court held hearings on Father’s petition
to modify physical and legal custody and on the pending contempt petitions.
For these two days of hearings, Mother appeared pro se.5
[37] On the first hearing date, Elliott of the DRCB testified that she had filed an
updated DRCB report in 2014. Elliott testified that, when she met with Mother
in March 2013 for the DRCB assessment, Mother had “viewed [Father] as
need[ing] to play a minimal role in [C.R.’s] life” and had believed that Father
should have no rights to C.R. and should have supervised parenting time. (Tr.
32). Elliott recommended that Father be given sole legal and physical custody
of C.R. and reasoned, in part, that:
There was a pattern over at least a couple of years about . . .
[Mother’s] resistance to includ[e] [F]ather with joint decisions as
well as . . . constant disputes and denials of parenting time, her
overall negative view of him, instability, [and] some concerns she
wasn’t able to properly meet [C.R.’s] need for counseling and
education.
5
At the time of the hearing, Father had remarried and had another child, and Mother also had another child.
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(Tr. 51).
[38] Following Elliott’s direct testimony, the trial court offered to slightly adjust the
procedure for cross-examination in an effort to assist Mother, who was
representing herself at the hearing. The trial court had the following discussion
with Mother:
THE COURT: As I said [Mother] you can, what I might suggest
is that you tell me the question or questions you want, that might
help, might help facilitate you know cause I can [or] might be
able to state them or restate them, or explain the[m] better is that
okay. I don’t want to get in your way but I sometimes I find
when people don’t have attorneys that might be helpful, do you
want to try it that way?
[Mother]: Yeah we can.
THE COURT: Okay, so what’s the . . . do you have a list of
questions.
[Mother]: Yeah, yeah.
THE COURT: Okay and you might be able to do it just as well
as anybody else I’m not saying you can’t[.] [D]o you want to
start asking the questions?
[Mother]: Yeah I can.
THE COURT: Okay why don’t you try and I’ll see how it goes.
[39] (Tr. 58-59). Various times during Mother’s cross-examination of Elliott, the
trial court assisted Mother by rephrasing a question to help her clarify her point.
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[40] Thereafter, Father testified and recounted the difficulties that he had
experienced with Mother, including cooperation with parenting time and
communication with C.R. Father testified that, in the past, he had been
hesitant to call C.R. when he was with Mother because Mother had entered
Father’s contact information in her cell phone under the name of “Korey
Douche” and that he did not want C.R. to see that name when he called. (Tr.
124).6 Father testified that Mother had interfered with his parenting time and
that, on one occasion, Mother had sent the police to remove C.R. from Father’s
home because she refused to let Father have some of his make-up parenting
time. Father testified that, other times when he was having parenting time with
C.R., Mother had called the police to his house to do a “welfare check” on C.R.
(Tr. 116). Additionally, he testified that Mother had not informed him of
doctor and counseling appointments for C.R., who had been diagnosed with
Attention Deficit Hyperactivity Disorder (“ADHD”). Furthermore, Father
testified that he agreed with Principal Helmuth’s recommendation to retain
C.R. in second grade and did not agree with Mother’s decision to advance C.R.
to the next grade level.
[41] Once Father completed his direct testimony, it was the end of the hearing day.
At that point, the trial court indicated it had fifteen minutes left for the day and
that it wanted to decide how to proceed for the remaining time. After Father’s
6
Mother’s Exhibit F, which are screen shots of a text conversation between Mother and Father that Mother
took from her cell phone, reveal that she had entered Father’s name as “Korey AKA Douche!”.
(Respondent’s Ex. F).
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counsel indicated that he had planned for Mother to be his last witness, the trial
court suggested the following procedure to Father and Mother:
THE COURT: Well here’s what I suggest is that we agree that
mom can, I don’t know if you agree with this or not[,] what I was
going to suggest is instead of trying to cross examine or ask
questions is that you would, we would all agree that mom can
testify both in opposition to what’s been said and also with your
own evidence and then you’d be able to ask her some questions I
think is what I’m . . . .
[Father’s Counsel]: I have no problem.
THE COURT: I’m not trying to keep anything out or miss
anything[.] I’m just trying to make it a little more streamline[d]
time wise[.] [D]oes that make sense to you [Mother]?
[Mother]: Kind of I just know there’s um . . . I know there are
quite a few things that are very I mean like . . .
THE COURT: I mean we could start and come back[.] [W]e
can always do that or it wouldn’t be a long time from now that
we could reschedule and come back again to finish with this
witness, and maybe with only 15 minutes maybe that’s what
we’re bound to do anyway I don’t know. So go ahead[,] I’m
sorry[,] I interrupted you go ahead.
[42] (Tr. 133-34). Mother then began to offer some testimony to rebut Father’s
testimony, and she offered some exhibits. At the end of the fifteen minutes, the
trial court interrupted Mother’s testimony so it could continue the hearing to
the following day.
[43] The next day, at the beginning of the hearing, the trial court stated:
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So we’re on the record again and we are resuming the hearing we
started yesterday as you know including contempt and
modification, and we had . . . evidence from [Father] . . . [two]
witnesses and we had turned to [Mother]. And what we were
doing was you remember was [Mother] was giving her
testimony, giving [her] facts [her] evidence and that’s partly in
response to [Father’s] evidence and partly as part of [her] case
that [she’s] presenting okay. So and I think we all agree with
that[.] [T]hat’s how we’re doing it and then . . . [Father’s]
attorney will have . . . an opportunity to question [Mother] . . . .
[44] (Tr. 151). After Mother confirmed that she wanted to present some additional
witnesses after she testified, the trial court and Mother had the following
discussion:
THE COURT: Okay. Why don’t we finish with you and see
how we go from there okay. Now you remember how, I don’t
know what question you were or what issue or statement you
were making when we stopped yesterday, but what I want to do
is just to start [and for] you [to] continue to complete your
testimony . . . statements and all that. You ready to do that?
[Mother]: Yes.
THE COURT: Okay go ahead.
[Mother]: Now is it okay to ask directly for the responses?
THE COURT: You mean to ask [Father]?
[Mother]: Yes.
THE COURT: Well you have a right to do that um . . . I guess I
can’t say no[.] I mean like I say when people don’t have
attorney’s [sic] sometimes it’s easier to do it this way but I’m not
going to say you can’t do that, so if you have questions, but I am
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going to reserve you know if I think a question can [be] expressed
a better way[,] I might intervene and say that’s the question[.]
[O]kay, this is done to help you and help the record[.] [S]o, so
do you have a question or questions . . . .
[45] (Tr. 152-53). Mother then proceeded with a combination of testifying and
discussing her questions for Father with the trial court. Once the trial court
confirmed what Mother wanted to ask and helped her to refine the questions,
the trial court directed Father to respond to Mother’s questions. The trial court
ensured that Mother posed all of the questions that she had for Father. After
Mother presented Father’s parents as witnesses, the trial court ended the
hearing and took the matter under advisement.
[46] Shortly thereafter, on May 18, 2015, the trial court issued an order granting
Father’s petition to modify legal and physical custody. In its order, the trial
court made the following relevant findings:
1. A substantial change in circumstances has occurred and it is
in the best interest of the minor child that legal and physical
custody be modified in that:
a. The minor child . . . is four years older since the
last hearing on custody.
b. [Mother] intentionally interferes in the relationship
between [Father] and minor child in that:
i. [Mother] continues to deny [Father]
parenting time despite previous court
orders finding her in contempt [for]
denying parenting time and previous
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sanctions by the court have not proven
effective.
ii. [Mother] makes unilateral decisions as
to major issues regarding the minor child
despite the parties sharing joint legal
custody.
iii. [Mother] speaks disparagingly of
[Father] to third parties and to [Father].
iv. [Mother] refused to inform [Father] as
to the minor child’s healthcare
appointments, extra-curricular schedules,
and school events.
v. [Mother] made repetitive calls to
Department of Family Services alleging
that [Father] was abusive to or neglected
the minor child, all reports made by
[Mother] were unsubstantiated by
Department of Family Services.
vi. [Mother] called the police to [Father’s]
residence on numerous occasions,
interfering with [Father’s] parenting time
as the minor child was removed from
[Father’s] care despite it being [Father’s]
parenting time.
c. [Mother] does not support a parent-child
relationship between [Father] and the minor child
and believes [Father’s] parental rights should be
terminated.
d. The minor child is performing below grade level
and despite recommendations by educational
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professionals, [Mother] intends to advance the minor
child to the next grade level over [Father’s] objection.
i. [Mother] lashed out at the child’s
principal for testifying at the March 20,
2015 hearing and threatened to report him
to the school board for testifying.
e. Diane Elliott with the [DRCB] expressed the need
of [Mother] to have a mental health evaluation and
obtaining the necessary counseling.
f. [Mother] made allegations that [Father] [had]
sexually assaulted her to IMPD in 2014, claiming the
assault took place[] in 2006.
g. [Mother] continues to make allegations to the
child’s counselor, the school, and the court that
[Father] is physically abusive towards the child and
her, none of [Mother’s] claims were supported by the
evidence.
(App. 23-25). The trial court granted Father’s petition to modify custody,
ordering that Father would “immediately have sole legal and physical custody”
of C.R. (App. 25). Additionally, the trial court found Mother “in contempt for
denying parenting time as alleged in [Father’s] August 2014 and March 2015
motions.” (App. 26). Mother now appeals.
Decision
[47] Mother raises multiple arguments, but we consolidate her arguments and
restate them as the following two: (1) the trial court violated due process rights
by denying her the right to cross-examine Father during the custody
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modification hearing; and (2) the trial court abused its discretion by modifying
custody and granting physical and legal custody of C.R. to Father. 7
[48] Before we address Mother’s arguments, we note that where, as here, neither
party filed a written request for findings and conclusions, the trial court’s sua
sponte findings are controlling only as to issues they cover. In re Adoption I.B.,
32 N.E.3d 1164, 1169 (Ind. 2015) (citing Yanoff v. Muncy, 688 N.E.2d 1259,
1262 (Ind. 1997)). “[A] general judgment will control as to the issues upon
which there are no findings.” Yanoff, 688 N.E.2d at 1262. Under the general
judgment standard, we will affirm on any legal theory supported by the
evidence. In re Adoption I.B., 32 N.E.3d at 1169.
1. Due Process
[49] Mother contends that the trial court violated her due process rights under the
Fourteenth Amendment to the United States Constitution8 by denying her the
right to cross-examine Father during the custody modification hearing.
[50] Mother, however, has waived appellate review of her challenge to the trial
court’s cross-examination procedure by failing to object during the hearing. “It
is well established . . . that a party on appeal may waive a constitutional claim.”
7
Mother sets forth two additional separate issues, which are essentially arguments relating to her challenge to
the modification of custody. Thus, we will address them in context of her custody modification argument
and will not separately address them as individual issues.
8
The Fourteenth Amendment provides that “no person shall be deprived of life, liberty, or property without
due process of law.” U.S. Const. amend. XIV.
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See McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 194 (Ind.
Ct. App. 2003). See also Hite v. Vanderburgh Cnty. Office of Family & Children, 845
N.E.2d 175, 180 (Ind. Ct. App. 2006) (explaining that constitutional claims,
including due process claims, may be waived when raised for the first time on
appeal). An “‘appellant cannot sit idly by without objecting, await the outcome
of trial, and thereafter raise an issue for the first time on appeal.’” Bogner v.
Bogner, 29 N.E.3d 733, 740 (Ind. 2015) (quoting Trout v. Trout, 638 N.E.2d
1306, 1307 (Ind. Ct. App. 1994), trans. denied). See also Troxel v. Troxel, 737
N.E.2d 745, 752 (Ind. 2000) (“A party may not raise an issue for the first time .
. . on appeal.”), reh’g denied. “The rule of waiver in part protects the integrity of
the trial court in that the trial court cannot be found to have erred as to an issue
or argument that it never had an opportunity to consider.” Commitment of T.S.
v. Logansport State Hosp., 959 N.E.2d 855, 857 (Ind. Ct. App. 2011), trans. denied.
[51] Here, the trial court offered Mother a modified procedure for conducting cross-
examination. It is clear from the record that the trial court’s suggested
procedure was merely a way of expediting the hearing and assisting Mother,
who appeared pro se at the hearing. See Ind. Trial Rule 43(D) (providing that
the scope, extent, method, and manner of cross-examination is within the
control and discretion of the trial court); Lovko v. Lovko, 179 Ind. App. 1, 12,
384 N.E.2d 166, 173 (1978) (“The scope of cross-examination of a witness is
broad and its limits lie within the discretion of the trial court.”). Mother neither
objected to the trial court’s procedure nor argued that it would violate her due
process rights. Accordingly, she has waived appellate review of her due process
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claim.9 See, e.g., McBride, 798 N.E.2d at 194-95 (holding that a mother had
waived appellate review of her due process claim when she raised it for the first
time on appeal); Trout, 638 N.E.2d at 1307-08 (holding that a husband waived
any challenge to the trial court’s procedure—which included an expedited
proceeding with summarized testimony—when the husband failed to object to
the format of the proceeding during the hearing). See also State v. Friedel, 714
N.E.2d 1231, 1236 (Ind. Ct. App. 1999) (hold that the State waived challenge to
the defendant’s standing by failing to present claim to the trial court).
2. Custody Modification
[52] Next, Mother argues that the trial court abused its discretion by granting
Father’s petition to modify custody. More specifically, Mother contends that
the trial court erroneously awarded sole physical and legal custody of C.R. to
Father.
[53] Turning first to Mother’s challenge to the trial court’s modification of physical
custody of C.R., we note that “[w]e review custody modifications for abuse of
discretion, with a ‘preference for granting latitude and deference to our trial
judges in family law matters.’” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)
(quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). Our
9
Mother also suggests that the trial court violated her right to due process because it did not give her the
opportunity to object to Father’s exhibits. She has, however, also waived this argument by failing to object at
trial. See Bogner, 29 N.E.3d at 740.
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supreme court explained the reason for this deference to the trial court as
follows:
While we are not able to say the trial judge could not have found
otherwise than he did upon the evidence introduced below, this
Court as a court of review has heretofore held by a long line of
decisions that we 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, or that he should
have found its preponderance or the inferences therefrom to be
different from what he did.
Id. (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)
(footnote omitted in original quotation)). See also Best v. Best, 941 N.E.2d 499,
502 (Ind. 2011) (“Appellate deference to the determinations of our trial court
judges, especially in domestic relations matters, is warranted because of their
unique, direct interactions with the parties face-to-face, often over an extended
period of time.”). Accordingly, “‘[o]n appeal it 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.’”
Kirk, 770 N.E.2d at 307 (quoting Brickley, 210 N.E.2d at 852 (citations omitted
from original quotation)). We will neither reweigh the evidence nor reassess
the credibility of witnesses, and we will view the evidence most favorably to the
judgment. Best, 941 N.E.2d at 502. “[W]e consider only the evidence and
reasonable inferences drawn therefrom which support the verdict.” Hanson v.
Spolnik, 685 N.E.2d 71, 77 (Ind. Ct. App. 1997), trans. denied.
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[54] Following the establishment of paternity, “[t]he [trial] court may not modify a
child custody order unless: (1) the modification is in the best interests of the
child; and (2) there is a substantial change in one (1) or more of the factors that
the court may consider under [INDIANA CODE § 31-14-13-2] . . . . ” I.C. § 31-
14-13-6.10 The factors set forth in INDIANA CODE § 31-14-13-2 include 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.
(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 home, school, and community.
10
Mother cites to INDIANA CODE §§ 31-17-2-21 and 31-17-2-8, which are applicable to determining the
modification of custody in a dissolution proceeding. When determining the modification of custody in a
paternity proceeding, as we have in this appeal, INDIANA CODE §§ 31-14-13-6 and 31-14-13-2 are applicable.
Nevertheless, the paternity and dissolution statutes contain nearly identical language and now involve the
same standard of review. See Joe v. Lebow, 670 N.E.2d 9, 16-20 (Ind. Ct. App. 1996) (discussing the history of
the dissolution and paternity custody modification statutes).
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(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.
[55] Mother does not dispute the trial court’s determination that modification was in
C.R.’s best interest. Instead, Mother raises a variety of arguments challenging
whether there was a substantial change in one of the statutory factors.
[56] Mother’s first challenge to the modification of physical custody is focused on
her assertion that the trial court failed to find that there was a substantial
change in one of the statutory factors relating to custody modification.
[57] We, however, find no merit in Mother’s argument. Our Court has explained
that “all that is required to support [a] modification of custody . . . is a finding
that a change would be in the child’s best interests, a consideration of the
[relevant statutory] factors . . . , and a finding that there has been a substantial
change in one of those factors.” Nienaber v. Marriage of Nienaber, 787 N.E.2d
450, 456 (Ind. Ct. App. 2003) (discussing custody modification under I.C. §§
31-17-2-21 and 31-17-2-8 in a dissolution proceeding). When interpreting the
custody modification statute in a dissolution hearing, our Court explained that
the statute does not require the trial court to specify which factor or factors has
substantially changed. Kanach v. Rogers, 742 N.E.2d 987, 989 (Ind. Ct. App.
2001). Instead, the trial court “must ‘consider’ the statutory factors and find
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there has been a substantial change.” Id. When interpreting the statute in this
manner, we reasoned that “[h]ad our legislature intended to require trial courts
to enumerate specifically in their orders those individual factors, it presumably
would have articulated that requirement[,]” and we “decline[d] to engraft onto
the statute a requirement the legislature did not articulate.” Id.
[58] Here, after finding that a “substantial change in circumstances ha[d] occurred”
and that “it [wa]s in the best interest of the minor child that legal and physical
custody be modified[,]” the trial court made various findings that related to the
statutory factors relating to custody modification. These findings addressed the
child’s age, Mother’s actions that interfered with Father’s relationship with the
child, the child’s failure to perform in school at his grade level, and other
findings that related to the mental health of the involved parties.
[59] Mother also contends that the modification of physical custody was erroneous
because “no evidence was presented of any effect on [C.R.].” (Mother’s Br.
26). Mother’s argument suggests that there needed to be a quantitative showing
of a demonstrative negative effect on the child and a finding thereof by the trial
court before it could find that a substantial change had occurred. Mother cites
to Jarrell v. Jarrell for the proposition that “[t]he effect on the child is what
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renders a change substantial or inconsequential.” (Mother’s Br. 26) (quoting
Jarrell v. Jarrell, 5 N.E.3d 1186, 1193 (Ind. Ct. App. 2014), trans. denied).11
[60] We find Mother’s argument misplaced. While any negative effect on a child
may be relevant to a determination of whether modification was in a child’s
best interest, there is no requirement that a party present or the trial court make
a specific finding regarding the effect on the child in order to modify custody.
See Nienaber, 787 N.E.2d at 456. Moreover, the Jarrell case discussed the
“effect” on the child in relation to a question of whether an out-of-state move
by a parent would be considered a substantial change. See Jarrell, 5 N.E.3d at
1193.12 Nevertheless, a review of the record reveals that there was evidence
relating to the effect of Mother’s actions on C.R., including his academic
difficulties at school and her refusal to follow the principal’s and Father’s
recommendation that C.R. be retained in his current grade. Additionally, the
DRCB evaluator testified that C.R. had been suspended three times in March
and April 2013, which she believed was around the time that Mother had
denied parenting time between C.R. and Father.
11
Another case cited by Mother to support this argument, Steele-Giri v. Steele, 40 N.E.3d 513, 521 (Ind. Ct.
App.) trans. granted, 41 N.E.3d 690 (Ind. 2015), has had transfer granted by our supreme court after Mother
filed her brief; thus, this opinion has now been vacated. See Ind. App. R. 58(A).
12
Furthermore, the line of cases upon which Jarrell was based (and the focus on the “effect” on the child)
were decided in relation to a pre-1994 statute—applicable in dissolution hearings—and a prior statutory
requirement that a party must show that an existing custody order was “unreasonable[,]” which is a
requirement that did not exist in the former paternity custody modification statute and that no longer exists in
the current dissolution custody modification statute. See Joe v, 670 N.E.2d at 16-17.
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[61] Additionally, Mother argues that the trial court did not have the authority to
modify custody based solely on her repeated violations of parenting time orders.
In regard to this argument, Mother contends that her denials of parenting time
were justified because she was able to change the parenting time schedule as the
custodial parent, and she asserts that she offered make-up time for the missed
time. We agree that “[g]enerally, [a] lack of cooperation or isolated acts of
misconduct by a custodial parent cannot serve as a basis for the modification of
child custody.” Hanson, 685 N.E.2d at 78. However, from a review of the trial
court’s order and the record on appeal, it is clear that the trial court’s
modification of physical custody was not based solely on Mother’s violations of
its parenting time orders. Indeed, Mother’s argument and attempted
justification for her denial of parenting time is nothing more than a request to
reweigh the evidence and reassess the credibility of witnesses, which we will not
do. See Best, 941 N.E.2d at 502.
[62] A review of the appellate record reveals that there is ample evidence to support
the trial court’s finding that there was a substantial change in one of the
statutory factors that justified a modification of custody. Mother has not shown
that the trial court’s conclusions that modification of custody was in the best
interest of the child and that there was a substantial change in the relevant
factors had occurred were clearly against the logic and effect of the facts and
circumstances before the trial court. Therefore, the trial court’s decision to
modify physical custody was not an abuse of discretion, and we affirm the trial
court’s decision. See, e.g., In re Paternity of J.T., 988 N.E.2d 398, 401 (Ind. Ct.
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Ohio App. 2013) (affirming a trial court’s modification of custody where evidence
that the mother had routinely denied the father his entitled parenting time
established a “substantial change in the interrelationship of the parties”).13
[63] Lastly, we address Mother’s contention that the trial court abused its discretion
by modifying legal custody of C.R. from joint custody to sole legal custody to
Father.
[64] In a paternity action, the considerations for a trial court contemplating joint
legal custody are found in INDIANA CODE § 31-14-13-2.3(c),14 which provides:
(c) In determining whether an award of joint legal custody under
this section would be in the best interest of the child, the court
shall consider it a matter of primary, but not determinative,
importance that the persons awarded joint legal custody have
agreed to an award of joint legal custody. The court shall also
consider:
(1) the fitness and suitability of each of the persons
awarded joint legal custody;
13
Mother also argues that the trial court made a “finding that one parent w[ould] be more supportive of the
co-parenting relationship in a divided family than the other parent[.]” (Mother’s Br. 27). Mother asserts that
the trial court erred by relying on this finding when modifying physical custody. Our review of the trial
court’s order does not reveal such a finding. Furthermore, Mother’s citation to DRCB evaluator’s trial
testimony, which she claims was the basis of the trial court’s “finding,” appears to be nothing more than a
request to reweigh the evidence, which we will not do.
14
Mother incorrectly cited to INDIANA CODE § 31-17-2-15, the joint legal custody statute applicable to a
dissolution proceeding instead of INDIANA CODE § 31-14-13-2.3, the joint legal custody statute applicable to a
paternity proceeding. Nevertheless, the language and standard of review of the statutes are similar.
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(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;
(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.
[65] “Particularly germane to whether joint legal custody should be modified is
‘whether the persons awarded joint custody are willing and able to
communicate and cooperate in advancing the child's welfare.’” Julie C. v.
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Andrew C., 924 N.E.2d 1249, 1258-60 (Ind. Ct. App. 2010) (quoting I.C. § 31-
17-2-15(2), the joint legal custody statute in a dissolution proceeding).15
[66] Here, when establishing Father’s paternity in 2010, the parties initially agreed
to share joint legal custody. However, in 2012, Father petitioned for a
modification of that custody. The DRCB evaluator recommended that Father
obtain sole legal custody of C.R. because
[t]here was a pattern over at least a couple of years about . . .
[Mother’s] resistance to includ[e] [F]ather with joint decisions as
well as . . . constant disputes and denials of parenting time, her
overall negative view of him, instability, [and] some concerns she
wasn’t able to properly meet [C.R.’s] need for counseling and
education.
(Tr. 51).
[67] In support of her challenge to the trial court’s modification of legal custody,
Mother cites to a different portion of the DRCB evaluator’s testimony and
argues that the evaluator’s testimony recommending Father be granted sole
legal custody should have been given “little to no weight[.]” (Mother’s Br. 21).
Mother’s arguments are nothing more than a request to reweigh the evidence
15 In Julie C., our Court held that a trial court must consider the joint legal custody statute as well as the
custody modification statutes discussed above when determining whether to modify joint legal custody. See
Julie C., 924 N.E.2d at 1259-60 (discussing these statute in a dissolution proceeding). But compare Carmichael
v. Siegel, 754 N.E.2d 619, 635 n.7 (Ind. Ct. App. 2001) (explaining that a trial court faced solely with a
motion to modify legal custody need consider only the factors in the joint legal custody statute and not the
statutory factors in the modification of physical custody) (discussing these statutes in a dissolution
proceeding).
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and reassess the credibility of witnesses, which we will not do. See Best, 941
N.E.2d at 502.
[68] In summary, we conclude that Mother has waived her due process argument by
failing to object at trial and that she has failed to meet her burden of showing
that there is a basis for reversal of the trial court’s custody modification order.
[69] Affirmed.
Baker, J., and Bradford, J., concur.
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