In re the Marriage of H.M.A. v. A.D.A. (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 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. Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017 Page 5 of 9

(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 Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017 Page 6 of 9

“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

Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017 Page 8 of 9

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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