Christine Wedding v. Donald S. Wedding (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 07 2017, 6:05 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 ATTORNEYS FOR APPELLEE Mark K. Phillips Raymond P. Dudlo Phillips Law Office Bamberger Foreman Oswald and Boonville, Indiana Hahn, LLP Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christine Wedding, February 7, 2017 Appellant-Petitioner, Court of Appeals Case No. 82A01-1605-DR-1202 v. Appeal from the Vanderburgh Superior Court Donald S. Wedding, The Honorable Leslie C. Shively, Appellee-Respondent. Judge Trial Court Cause No. 82D04-1404-DR-313

Barnes, Judge. Court of Appeals of Indiana | Memorandum Decision 82A01-1605-DR-1202 | February 7, 2017 Page 1 of 8

Case Summary [1] Christine Wedding (“Mother”) appeals the trial court’s denial of her motion to

correct error, which challenged the child custody order in her divorce from

Donald Wedding (“Father”). We affirm.

Issue [2] The sole restated issue is whether Mother has established error in granting her

primary physical custody of the parties’ child while also ordering a change in

the child’s school.

Facts [3] Mother and Father have one child, A.W., who was born in 2007. In 2014,

Mother petitioned for dissolution of the parties’ marriage. After the dissolution

was filed, A.W. attended school closest to Mother’s residence, which was

Highland Elementary School in the Evansville Vanderburgh School

Corporation. Highland is an approximately thirty-five-minute drive from

Father’s residence. The trial court appointed a guardian ad litem (“GAL”) for

A.W. The GAL submitted a report to the trial court on July 1, 2014, which

was updated on February 5, 2015, and May 11, 2015. In the last update, the

GAL recommended that A.W.’s “home school be changed to Donald’s school

district in time for her 2nd grade year if he is granted primary physical custody.”

Appellant’s App. p. 25. [4] The trial court held evidentiary hearings on April 13, May 4, and July 30, 2015.

On August 19, 2015, the parties submitted and the trial court approved an Court of Appeals of Indiana | Memorandum Decision 82A01-1605-DR-1202 | February 7, 2017 Page 2 of 8

agreed order dissolving their marriage and dividing their property; the order left

child custody and support issues still to be resolved. On October 2, 2015, the

trial court held another evidentiary hearing. On October 27, 2015, the trial

court entered its order resolving the child custody and support issues, which it

amended on October 30, 2015. The final order granted joint legal custody of

A.W. to the parties, designated Mother as primary physical custodian, and

established Father’s parenting time. Regarding A.W.’s education, the order

stated:

The child shall finish her current semester at her present school. The child shall be enrolled in the appropriate EVSC school district based upon the Father’s current address for the spring semester of 2016 and thereafter. The child’s school shall, therefore, become Hebron Elementary School.

Id. at 19. [5] Mother filed a motion to correct error, challenging the portion of the order

changing A.W.’s school as contrary to A.W.’s best interests and the evidence

presented at the prior hearings. Mother also sought to stay implementation of

the change in A.W.’s school. Mother further asserted that the trial court

improperly calculated her income for child support purposes. The Father

responded that there was newly-discovered evidence of an inheritance Mother

received that should result in an upward increase in her income for child

support purposes. [6] The trial court held a hearing on January 4, 2016. At this hearing the parties

presented argument only as to the appropriateness of ordering a change in

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A.W.’s school. At the conclusion of the hearing, the trial court stated that it

was going to review its notes and listen to recordings of the previous hearings in

which evidence related to A.W.’s schooling was presented. On January 5,

2016, the trial court denied Mother’s motion to stay implementation of the

change in school. Resolution of the child support issue was stayed for further

proceedings. The trial court held a hearing on that issue on March 11, 2016.

Thereafter, the trial court issued an order denying Mother’s motion to correct

error and Father’s request to recalculate Mother’s income. Mother now

appeals.

Analysis [7] Mother challenges only the trial court’s decision to order a change in A.W.’s

school to one close to Father, while granting Mother physical custody. We

review a trial court’s decision to grant or deny a motion to correct error for an

abuse of discretion. Garrett v. Spear, 24 N.E.3d 472, 473 (Ind. Ct. App. 2014).

“An abuse of discretion occurs if the trial court’s decision is clearly against the

logic and effect of the facts and circumstances or if the decision is contrary to

law.” Id. at 473-74. Additionally, the underlying issue here is the trial court’s

child custody decision. We afford considerable deference to such rulings

because the trial court sees the parties, observes their conduct and demeanor,

and hears their testimony. Quinn v. Quinn, 62 N.E.3d 1212, 1220 (Ind. Ct. App.

2016). We will not reweigh the evidence or assess the credibility of witnesses,

and will not substitute our judgment for that of the trial court. Id. “We will

affirm the trial court’s custody determination unless it is clearly against the logic

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and effect of the facts and circumstances or the reasonable inferences drawn

therefrom.” Id. [8] Mother has not provided us with transcripts from the underlying hearings that

led to the trial court’s custody order. In her notice of appeal, she only requested

transcripts of the motion to correct error hearings and not the previous four

evidentiary hearings that resulted in the challenged custody order. Indiana

Appellate Rule 9(F)(5) requires, in part, that an appellant must request and

designate:

all portions of the Transcript necessary to present fairly and decide the issues on appeal. If the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.

If an appellant fails to request and submit a transcript to this court, it results in a

waiver of any claimed errors that depend upon review of the evidence. In re

Walker, 665 N.E.2d 586, 588 (Ind. 1996); Lifeline Youth & Family Servs., Inc. v.

Installed Bldg. Prods., Inc., 996 N.E.2d 808, 814-15 (Ind. Ct. App. 2013). [9] We admit that the trial court’s order placing physical custody of A.W. with

Mother but requiring her to attend school close to Father’s residence seems

unusual at first glance. Regardless, we have no way of reviewing the

evidentiary basis for that order. The trial court itself reviewed the record in

response to Mother’s motion to correct error and found no reason to change its

mind. We have no way of second-guessing that determination, and Mother

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cites to no legal authority holding that it is categorically improper for a trial

court to make a ruling regarding custody and schooling such as it did.1 She

does, in fact, cite to a few pages of transcript that arguably support her position

from the evidentiary hearings; this transcript evidently was prepared as part of

the motion to correct error proceedings. The remainder of that transcript was

not provided to this court and an appellant cannot “cherry pick” from the

record in this fashion. And although it is true the GAL recommended that

A.W.’s school be changed if Father was granted physical custody, trial courts

are not required to accept an expert’s custody recommendations. See Maddux v.

Maddux, 40 N.E.3d 971, 980 (Ind. Ct. App. 2015). [10] Mother attempts to avoid waiver by claiming that the trial court’s custody order

was ambiguous. She did not make any such argument to the trial court in

support of her motion to correct error. Rather, she solely made substantive

arguments that the evidence indicated the change in A.W.’s school was not in

her best interests. In any case, a judgment is ambiguous if “it would lead two

reasonable persons to different conclusions as to its effect and meaning.” Gilbert

v. Gilbert, 777 N.E.2d 785, 790 (Ind. Ct. App. 2002). There is no such

ambiguity in the trial court’s order. It is quite clear in its provisions regarding

custody, parenting time, and the requirement that A.W. change schools. There

1 In excess of the standard parenting time rules, Father was granted two days of weekday visitation with A.W., plus every other weekend until Monday morning, with Father being responsible for A.W.’s transportation to school after overnight visits. This extended parenting time may have been part of the reason for the trial court’s schooling decision, but again, without an adequate record to review we have no way of knowing.

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also is no argument that it is impossible to carry out the trial court’s order. In

sum, we conclude that Mother has waived her challenge to the trial court’s

custody order by failing to provide us with transcripts of the evidentiary

hearings leading to that order. [11] Father asks this court to require Mother to pay his appellate attorney fees

because of her failure to comply with the Indiana Rules of Appellate Procedure,

which he asserts demonstrates bad faith. Under Appellate Rule 66(E), we “may

assess damages if an appeal is . . . frivolous or in bad faith.” Such damages may

include attorney fees. Gillock v. City of New Castle, 999 N.E.2d 1043, 1047 (Ind.

Ct. App. 2013). We use extreme restraint when exercising our power to award

appellate attorney fees because of the potential chilling effect upon the exercise

of the right to appeal. Poulard v. Laporte County Election Bd., 922 N.E.2d 734,

737 (Ind. Ct. App. 2010). A sanction is not imposed to punish lack of merit,

but something more egregious. Id. at 737-38. [12] Bad faith claims for purposes of Appellate Rule 66(E) are categorized as either

“substantive” or “procedural.” Basic v. Amouri, 58 N.E.3d 980, 986 (Ind. Ct.

App. 2016). A substantive bad faith claim requires a showing that an opposing

party’s contentions and arguments are utterly devoid of all plausibility. Id.

(quoting Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003)).

Procedural bad faith, on the other hand, occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by

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the opposing party and the reviewing court. Even if the appellant’s conduct falls short of that which is “deliberate or by design,” procedural bad faith can still be found.

Thacker, 797 N.E.2d at 346-47. [13] We are cognizant that Father has had to incur appellate attorney fees in defense

of a judgment that Mother failed to provide an adequate record to challenge.

This was a gross procedural misstep. However, we are hesitant to penalize

Mother for her attorney’s failure to follow the appellate rules in this instance.

The custody order is somewhat unusual, and Mother made a valid, but

unsuccessful, argument that the order was ambiguous and could be challenged

on that basis even without the evidentiary record. Given our reluctance to

penalize parties for appellate procedural errors, we decline to find procedural

bad faith to the extent needed to order Mother to pay Father’s appellate

attorney fees under Appellate Rule 66(E).

Conclusion [14] Mother has waived her argument as to the propriety of the trial court’s custody

order and, thus, we affirm it. We decline Father’s request to order Mother to

pay his appellate attorney fees. [15] Affirmed.

Kirsch, J., and Robb, J., concur.

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