S.B. v. C.B. (mem. dec.)

MEMORANDUM DECISION Mar 30 2015, 9:59 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Andrea L. Ciobanu Bradley Banks Alex Beeman Banks & Brower Ciobanu Law, P.C. Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

S.B., March 30, 2015

Appellant-Petitioner, Court of Appeals Case No. 24A01-1405-DR-00210 v. Appeal from the Franklin Circuit Court

C.B., The Honorable J. Steven Cox, Judge Cause Nos. 24C01-0511-DR-000419; Appellee-Respondent. 24C01-1003-JP-00039

Mathias, Judge. [1] S.B. (“Mother”) appeals from the trial court’s order granting C.B. (“Father”)

custody of their minor children. She presents three issues for our review, which

we revise and restate as:

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(1) whether the trial court abused its discretion in modifying custody of Mother and Father’s two oldest children;

(2) whether the trial court abused its discretion in granting Father physical custody of their two youngest children; and

(3) whether the trial court erred in ordering Mother to pay $315 per week in child support retroactive to the date of Father’s petition.

[2] We affirm.

Facts and Procedural History [3] Mother and Father married in 1997. During the marriage, the couple had two

daughters, born in 1997 and 2001. The marriage was dissolved in 2006, and

Mother was awarded primary physical custody of the two children, with Father

to have parenting time. Shortly after their divorce, Mother and Father

reconciled and began to live together again. They had two more children in

2008 and 2010. [4] On October 5, 2013, Mother and Father had an argument regarding text

messages Mother had been exchanging with a male friend. Mother left the

house and went to stay with her sister for two days. After leaving her sister’s

home, she stayed at the home of her male friend for a few more days.1 Mother

was fired from her nursing job soon thereafter. [5] The day after Mother and Father’s argument, the parties agreed that Father,

who was struggling financially, would move to Tennessee with the children to

1 While she was staying there, the inside of home of Mother’s friend was set on fire. Father was investigated for the arson, but at the time of the hearings, no charges had been brought against Father.

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be close to Father’s relatives. Father and the children moved in with Father’s

mother, and the children began attending public school in Tennessee.2 Mother

moved by herself into a house in Shelbyville, Indiana. Mother did not see the

children until the end of January 2014 but spoke with them via telephone.3 [6] On October 31, 2013, about three weeks after Father moved to Tennessee with

the children, he filed a petition to modify custody and abate child support. On

January 28, 2014, the trial court held a hearing on Father’s petition. At the

hearing, Mother and Father filed with the court an interim agreement which

provided that that the children would live with Father in Tennessee and Mother

would see the youngest two children on alternating weekends and the oldest

two children from February 15 to February 17, 2014. The trial court heard

additional evidence on March 13, 2014. On April 11, 2014, the trial court

issued an order granting Father primary physical custody of the children and

awarding Mother parenting time. The trial court did not address Father’s

request to abate child support in its April 11 order. [7] On May 1, 2014, Father filed a request for retroactive child support, alleging

that both Mother and Father were now gainfully employed, that Mother and

Father were earning $733 and $450 per week respectively, and that Father had

been providing for the children without any financial assistance from Mother

since October 31, 2013. Father also reported that he was paying $140 per week

2 The two youngest children lived in Alabama with Father’s sister for a short time. 3 The record is unclear as to how frequently S.B. spoke with the children on the telephone.

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in work-related childcare expenses and $43 per week in health insurance

premiums for the children. The trial court held a hearing on Father’s request on

June 10, 2014. On September 5, 2014, the trial court ordered Mother to pay

$315 per week in child support retroactive to the date of Father’s October 31,

2013 petition. [8] Mother now appeals.

I. Modification of Custody

[9] Mother first argues that the trial court abused its discretion in granting Father’s

petition to modify custody of the two oldest children. [10] Because we give latitude and deference to the trial court’s decision in family law

matters, we review a trial court’s decision regarding a request to modify custody

and child support for an abuse of discretion. Kirk v. Kirk, 770 N.E.2d 304, 307

(Ind. 2002). We “will not substitute our own judgment if any evidence or

legitimate inferences support the trial court’s judgment.” Id. Furthermore, we

will not “reweigh the evidence or judge the credibility of the witnesses” and we

will consider only the evidence most favorable to judgment and the reasonable

inference to be drawn therefrom. Green v. Green, 843 N.E.2d 23, 26 (Ind. Ct.

App. 2006). [11] Indiana Code section 31-17-2-21 provides that a “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

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court may consider under [Indiana Code section 31-17-2-8].” Those factors

include:

(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. (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[.]

Ind. Code § 31-17-2-8. [12] A trial court does not have to specifically identify which of the factors has

substantially changed, but “we have interpreted I.C. § 31-17-2-21 to require that

a modification must be accompanied by a finding that there has been a

substantial change in one or more of the statutory factors listed in I.C. § 31-17-

2-8.” Nienaber v. Nienaber, 787 N.E.2d 450, 455-56 (Ind. Ct. App. 2003).

Court of Appeals of Indiana | Memorandum Decision 24A01-1405-DR-00210 | March 30, 2015 Page 5 of 9 [13] Here, the evidence most favorable to the judgment reveals that Mother and

Father lived together for approximately six years after their marriage was

dissolved. During this time, they had two additional children. In October

2013, they separated again and Mother lost her job and was unable to provide

for the children. Mother and Father agreed that Father would move to

Tennessee with the children. Father had the support of his extended family in

Tennessee and the two oldest children were attending public school there,

where, before, they had been homeschooled. The trial court also considered the

wishes of the two oldest children, who were sixteen and twelve years old at the

time of the hearing. [14] Accordingly, the trial court had ample evidence from which to conclude a

substantial change in circumstances had occurred since the initial custody

determination and that a change in custody was in the best interests of the

children. While we acknowledge that Mother presented evidence to the

contrary, Mother’s argument amounts to a request that we reweigh the evidence

and assess the credibility of the witnesses, which we will not do. See D.C. v.

J.A.C., 977 N.E.2d 951, 956-57 (Ind. 2012) (appellate courts “are in a poor

position to look at a cold transcript of the record, and conclude that the trial

judge, who saw the witnesses, observed their demeanor, and scrutinized their

testimony as it came from the witness stand, did not properly understand the

significance of the evidence” (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.

2002).) We therefore find no abuse of discretion in the court’s grant of Father’s

petition to modify custody.

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II. Initial Custody Determination

[15] Mother also argues that the trial court abused its discretion in granting Father

custody of the two youngest children who were born after Mother and Father’s

divorce and the initial custody determination for their two oldest children. [16] We review custody determinations for an abuse of discretion, with a preference

for granting latitude and deference to our trial courts in family law matters.

Webb v. Webb, 868 N.E.2d 592 (Ind. Ct. App. 2007). We will not reverse unless

the trial court’s decision is against the logic and effect of the facts and

circumstances before it or the reasonable inferences drawn therefrom. Id. [17] In making a custody determination, the trial court “shall consider the factors

listed under section 8 of this chapter.” Ind. Code § 31-17-2-21(b). As noted

above, those factors include the child’s age and sex; the wishes of the parent(s);

the child’s wishes; the relationship the child has with his or her parent(s),

sibling(s), and others; the child’s adjustment to home, school, and community;

the mental and physical health of all involved; any evidence of domestic or

family violence; and any evidence that the child has been cared for by a de facto

custodian. Ind. Code § 31-17-2-8(1)-(8)). [18] Mother argues that the trial court erred in finding that granting Father physical

custody was in the children’s best interests because “Father . . . has no ability to

care for the children without significant reliance on others” and because Mother

“has been the bread winner and maintained steady employment” throughout

the children’s lives. Appellant’s Br. at 23.

Court of Appeals of Indiana | Memorandum Decision 24A01-1405-DR-00210 | March 30, 2015 Page 7 of 9 [19] As with her argument regarding custody modification for the two older

children, Mother asks us to reweigh the evidence, which we will not do. Spencer

v. Spencer, 684 N.E.2d 500, 501 (Ind. Ct. App. 1997). The trial court heard

evidence that Father and the children have the support of Father’s relatives in

Tennessee, that Father was working and providing for the children, and that the

children were settled in their schools. Under these facts and circumstances, the

trial court did not abuse its discretion by awarding Father primary physical

custody of the two younger children.

III. Retroactive Child Support

[20] Mother next argues that the trial court abused its discretion in ordering her to

pay $315 per week in child support retroactive to October 31, 2013.

Specifically, she argues no evidence in the record supports the weekly gross

income the trial court imputed to Mother, that there was “no evidence that

Father paid any work-related child care expenses,” and no evidence existed

supporting the trial court’s conclusion that Father should receive credit for

providing the children with health insurance. Appellant’s Br. at 24. [21] Decisions regarding child support rest within the sound discretion of the trial

court. Beehler v. Beehler, 693 N.E.2d 638, 640 (Ind. Ct. App. 1998). We will

reverse only for an abuse of discretion or if the trial court’s determination is

contrary to law. Id. A trial court has the discretionary power to make a

modification for child support relate back to the date the petition to modify is

filed, or any date thereafter. Id. at 641; Smith v. Mobley, 561 N.E.2d 504, 508

(Ind. Ct. App. 1990), trans. denied. Court of Appeals of Indiana | Memorandum Decision 24A01-1405-DR-00210 | March 30, 2015 Page 8 of 9

[22] According to the evidence most favorable to the trial court’s, Mother had not

contributed any financial support for the children since October 31, 2013,

Father was earning $450 per week, Mother was earning $733 per week, Father

was paying $140 per week in work-related childcare expenses, and Father was

paying $43 per week in health insurance premiums for the children. In light of

this evidence, and because the law is clear that a trial court may order support

retroactively to any date from the filing of the petition to modify support, we

conclude that the trial court did not abuse its discretion in ordering Mother to

pay $315 in child support, retroactive to October 31, 2014.

Conclusion [23] For all of these reasons, the trial court did not abuse its discretion in granting

Father custody of all four children and in ordering Mother to pay retroactive

child support in the amount of $315 per week. [24] Affirmed.

May, J., and Robb, J., concur.

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