In re the Marriage of H.M.A. v. A.D.A. (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                        FILED
    regarded as precedent or cited before any                               Dec 28 2017, 7:11 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                                  Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                             and Tax Court
    ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
    Darlene R. Seymour                                      Robert D. Wickens
    Ciyou & Dixon, P.C.                                     Wickens & Wickens, LLC
    Indianapolis, Indiana                                   Greensburg, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In re the Marriage of                                   December 28, 2017
    Court of Appeals Case No.
    H.M.A.,                                                 03A01-1708-DR-1684
    Appellant-Petitioner,                                   Appeal from the Bartholomew
    Superior Court
    v.
    The Honorable Timothy B. Day,
    Special Judge
    A.D.A.,
    Trial Court Cause No.
    Appellee-Respondent.                                    03D02-1206-DR-2868
    Bailey, Judge.
    Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017         Page 1 of 9
    Case Summary
    [1]   H.M.A. (“Mother”) and A.D.A. (“Father”) have one child between them, G.A.
    (“Child”), who was born on January 21, 2006. When Child was born, Mother
    and Father were in the process of dissolving their marriage. The trial court later
    entered a dissolution decree that, inter alia, awarded Mother primary physical
    custody and sole legal custody. The instant case arises from a petition to
    modify custody, which Father filed in early 2017. Following a hearing, the trial
    court entered a modified custody order under which Father has primary
    physical custody and Mother and Father have joint legal custody. Mother now
    appeals, presenting the sole restated issue of whether the trial court abused its
    discretion in modifying the physical custody arrangement.1
    [2]   We affirm.
    Facts and Procedural History
    [3]   By the time Child was born in 2006, Mother and Father were in the process of
    dissolving their marriage of several years. The trial court entered a dissolution
    decree on November 14, 2006, at which time the trial court ordered that Mother
    have primary physical custody and sole legal custody—an arrangement to
    which Mother and Father had agreed through a partial settlement agreement.
    1
    Neither party directs argument to the trial court’s decision to establish joint legal custody.
    Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017             Page 2 of 9
    [4]   Thereafter, Mother and Father married other people, and Father became a
    parent to six additional children, one of whom is in Child’s grade level. Child
    regularly spent time with Father and his family, who lived about a seventy-five
    minute drive away from Mother.
    [5]   Near the end of Child’s fourth-grade year at a public school in Columbus,
    Mother became concerned about Child’s safety, privacy, and well-being
    because of a bathroom policy in place at Child’s school. Mother researched
    other schools and decided that Child would attend an online school for fifth
    grade, which Child began attending in August of 2016. Child’s attendance at
    the new school generated an unexpected workload, with Child studying as
    many as seven days per week and, at times, more than twelve hours per day.
    Child disliked attending the online school, which was a source of tension
    between Child and Mother, and Child began to lose touch with her friends from
    the public school. The educational arrangement also produced tension between
    Mother and Father, who already had a strained relationship.
    [6]   Father filed the instant petition to modify custody on January 17, 2017, and a
    hearing was held on June 30, 2017. At the hearing, Father sought primary
    physical custody and indicated that he would like joint legal custody. Evidence
    adduced at the hearing included testimony from Child’s Guardian Ad Litem
    (the “GAL”), who recommended that Father have primary physical custody.
    The trial court took the matter under advisement, and ordered that Father have
    primary physical custody and that Mother and Father have joint legal custody.
    Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017   Page 3 of 9
    [7]   This appeal ensued.
    Discussion and Decision
    [8]   We review an order modifying child custody for abuse of discretion, Wilson v.
    Myers, 
    997 N.E.2d 338
    , 340 (Ind. 2013), which occurs when the trial court’s
    decision is against the logic and effect of the facts and circumstances before it,
    including the reasonable inferences to be drawn therefrom. Truelove v. Truelove,
    
    855 N.E.2d 311
    , 314 (Ind. Ct. App. 2006). Moreover, where, as here, the trial
    court has, sua sponte, entered written findings and conclusions, we “shall not set
    aside the findings or judgment unless clearly erroneous,” and we must give
    “due regard . . . to the opportunity of the trial court to judge the credibility of
    the witnesses.” Ind. Trial Rule 52(A). As to the issues covered by the findings,
    we apply the two-tiered standard of “whether the evidence supports the
    findings, and whether the findings support the judgment.” Steele-Giri v. Steele,
    
    51 N.E.3d 119
    , 123 (Ind. 2016). We review remaining issues under the general
    judgment standard, whereby we affirm the judgment if it can be sustained “on
    any legal theory supported by the evidence.” 
    Id. at 123-24.
    Furthermore, in
    conducting our review, we consider the evidence in a light most favorable to the
    judgment, 
    id. at 124,
    remaining mindful of the “well-established preference in
    Indiana ‘for granting latitude and deference to our trial judges in family law
    matters.’” 
    Id. (quoting In
    re Marriage of Richardson, 
    622 N.E.2d 178
    (Ind. 1993)).
    [9]   Pursuant to Indiana Code Section 31-17-2-21(a), the trial court “may not
    modify a child custody order unless: (1) the modification is in the best interests
    Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017   Page 4 of 9
    of the child; and (2) there is a substantial change in one . . . or more of the
    factors that the court may consider” in making an initial custody determination.
    Ind. Code § 31-17-2-21(a). In making an initial custody determination, the trial
    court “shall consider all relevant factors,” and our legislature has identified a
    non-exhaustive list of factors that bear on a custody determination, including:
    (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.
    (5) The child’s adjustment to the child’s:
    (A) home;
    (B) school; and
    (C) community.
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    (6) The mental and physical health of all individuals involved.
    I.C. § 31-17-2-8. The trial court must consider these factors before modifying
    custody, I.C. § 31-17-2-21(b), but it need not (1) specify the factor(s) that
    substantially changed or (2) explain why modifying custody is in the child’s best
    interests. In re Paternity of P.R., 
    940 N.E.2d 346
    , 351 (Ind. Ct. App. 2010)
    (citing Kanach v. Rogers, 
    742 N.E.2d 987
    , 989 (Ind. Ct. App. 2001)). Moreover,
    the parent seeking to modify custody bears the burden of demonstrating that
    modification is warranted. Kirk v. Kirk, 
    770 N.E.2d 304
    , 307 (Ind. 2002).
    [10]   Mother argues that the trial court abused its discretion in modifying physical
    custody of Child, asserting that Father “presented no evidence of any
    substantial change in circumstances.” Appellant’s Br. at 11. Although the trial
    court did not expressly identify a substantially changed circumstance, the court
    observed that Child “did not adjust well to being home schooled by [M]other.”
    App. Vol. II at 16. Furthermore, there was significant testimony directed to
    Child’s poor adjustment to the change in schooling. See I.C. § 31-17-2-8
    (identifying adjustment to school as a factor relevant to a custody
    determination). The GAL testified that, from Child’s perspective, the school
    year had been “terrible” and that it had “affected [Child] in a lot of different
    ways.” Tr. at 7. Indeed, Mother acknowledges that there was a “dispute about
    school” that affected her relationship with Child. Appellant’s Br. at 12. The
    GAL testified that “[t]here wasn’t a lot of guidance” as Child completed the
    online work, and Child “got away with what she could get away with.” Tr. at
    20-21. According to Father, once Child got behind in her schoolwork, Child
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    “lost complete interest in the program” and “kind of put herself down.” Tr. at
    34. The evidence also indicates that the online program affected Child socially,
    as she lost touch with friends and spent long hours catching up on her work.
    [11]   In her appellate briefs, Mother focuses on caselaw supporting the principle that
    “a child’s wishes, standing alone, cannot support a change in custody.”
    Appellant’s Br. at 13. Mother asserts that Father’s request for custody “had
    nothing to do with [Child’s] education and everything to do with [Child’s]
    desires,” and she posits that “everyone in this case simply wanted to please an
    eleven-year[-]old child, including the trial court.” 
    Id. at 14.
    Yet, irrespective of
    Father’s motivations, the evidence supports a reasonable conclusion that there
    had been a substantial change regarding Child’s adjustment to her school,
    which is a relevant factor expressly identified by our legislature. See I.C. § 31-
    17-2-8. Moreover, to the extent Mother argues that any change was not
    substantial because Child’s welfare was not “in danger,” Appellant’s Br. at 12,
    Indiana law does not impose this requirement. See I.C. §§ 31-17-2-21(a), -2-8.2
    [12]   Mother also challenges the trial court’s determination that custody modification
    was in Child’s best interests. Mother argues that she had always been Child’s
    2
    In setting forth a standard for custody modification, Mother cites to Swonder v. Swonder, 
    642 N.E.2d 1376
           (Ind. Ct. App. 1994), for the proposition that modification must be “necessary for the welfare of the child
    involved.” Appellant’s Br. at 10. However, subsequent to the underlying hearing in Swonder, our legislature
    revised the standard for custody modification, see 
    Swonder, 642 N.E.2d at 1379
    n.1, and enacted the current
    two-part “best interests” and “substantial change” framework for custody modification. Compare I.C. § 31-1-
    11.5-22(d) (1993) (permitting custody modification “only upon a showing of changed circumstances so
    substantial and continuing as to make the existing custody order unreasonable”) with I.C. § 31-1-11.5-22(d)
    (1994); see also Joe v. Lebow, 
    670 N.E.2d 9
    , 17-21 (Ind. Ct. App. 1996) (analyzing aspects of the revisions).
    Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017          Page 7 of 9
    primary caregiver, and that Father had been less involved in Child’s life. Thus,
    according to Mother, to promote continuity and stability in Child’s life, it was
    in Child’s best interests for Mother to retain primary physical custody. Mother
    also directs us to evidence indicating that she had planned to send Child to a
    private school, rectifying what, “in hindsight, may have [been] a poor
    decision.” Appellant’s Br. at 12. She asserts that “[i]f a custodial parent were
    to be judged upon one regrettable decision, changes in custody would be in a
    constant state of flux.” Reply Br. at 6. Additionally, Mother highlights
    evidence indicating that Father discusses mature topics with Child, and she
    argues that Father improperly treats Child “as an adult” rather than “acting in
    her best interest as a young child.” Appellant’s Br. at 11.
    [13]   Yet, we are not free to reweigh the evidence, see Best v. Best, 
    941 N.E.2d 499
    ,
    502 (Ind. 2011), which indicates that Child has a close relationship with Father,
    and was well adjusted to Father’s home, where she would be able to attend
    school with a sibling. Moreover, the GAL testified that Child was “very vocal
    about wanting to live with [Father],” Tr. at 6, where, in the wake of the
    previous school year, Child felt “socially . . . more connected” and
    “[a]cademically . . . more secure and stable.” Tr. at 7. Here, the change in
    schooling impacted multiple aspects of Child’s life. Although Mother was
    prepared to bring back a sense of academic stability and social connectedness as
    Child entered sixth grade, viewing the evidence in a light most favorable to the
    judgment, we cannot say that the trial court clearly erred in determining that
    modifying physical custody was in Child’s best interests. See Kirk, 770 N.E.2d
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    at 308 (observing that stability, including stability in schooling, constitutes a
    “substantial determinant” in evaluating the best interests of a child).
    Conclusion
    [14]   The trial court did not abuse its discretion in modifying physical custody.
    [15]   Affirmed.
    Kirsch, J., and Pyle, J., concur.
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