In re the Paternity of: E.E., Audrey L. Wilson v. Greg S. Elsperman (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 17 2020, 9:43 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE Audrey Wilson Dale, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re The Paternity of: E.E., August 17, 2020

Audrey L. Wilson, Court of Appeals Case No. 19A-JP-3083 Appellant-Respondent, Appeal from the Spencer Circuit v. Court The Honorable Karen Werner, Greg S. Elsperman, Magistrate Trial Court Cause No. Appellee-Petitioner, 74C01-1811-JP-291

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 1 of 10

Case Summary and Issue [1] Audrey Wilson (“Mother”) and Greg Elsperman (“Father”) have one child

together, E.E. (“Child”). After the parties ended their relationship, Father filed

a petition to establish custody and parenting time. At the hearing on the

matter, and over Mother’s objection, Father’s counsel elicited testimony from

Mother regarding an abortion. Mother appeals pro se and raises one issue for

our review, which we restate as whether the trial court abused its discretion in

admitting into evidence the testimony about her abortion. Concluding any

error in the admission of the testimony was harmless, we affirm.

Facts and Procedural History 1 [2] Mother and Father met at a New Years’ Eve party in 2013, began dating

around May 2016, and began living together in the fall of that year. Mother

described their relationship as “very unstable[.]” Transcript of Evidence,

Volume 2 at 8. When the parties began living together, Mother had four

children from two prior relationships and had physical custody of two of the

children—one of whom has special needs. Father had three adult daughters,

two from a previous marriage and one from another relationship. Child was

1 Because Mother failed to file an appendix as required under Indiana Appellate Rule 49, we take our facts and procedural history from the transcript of proceedings before the trial court.

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born to Mother and Father on August 24, 2017. During the relationship,

Mother, a registered nurse, stayed home and cared for the children; Father

worked at an automobile dealership. [3] The parties’ relationship ended in October 2018, when Mother left Father’s

house, taking Child and her other children with her. Mother sought and

obtained a protection order against Father. On November 5, 2018, Father filed

in the Spencer Circuit Court a petition to establish custody and parenting time,

specifically requesting joint physical and legal custody of Child. During this

time, and pursuant to an agreed order,2 Father paid $100 each week to Mother

in support of Child. Father was permitted parenting time every Monday and

Wednesday for three hours in the evening and then from 4:00 p.m. on Friday

until 4:00 p.m. on Saturday. [4] The trial court conducted a hearing on Father’s petition to establish custody

and parenting time on July 18, 2019. The hearing was continued to, and

concluded on, October 24, 2019. On the second day of the hearing, the trial

court also heard evidence on Mother’s petition for a protection order that was

filed in October 2018, under a separate cause number.3 On the first day of the

2 It appears from testimony presented during the hearing that, at some point prior to the hearing, the parties entered into an agreed order. See Tr., Vol. 2 at 152. 3 Although it is unclear, we glean from the record that an ex parte order for protection against Father was in place until the matter of whether to impose a permanent protection order could be heard at a hearing.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 3 of 10 hearing, however, Father’s counsel questioned Mother as follows regarding whether she had an abortion:

Q And who is Bryan Eckert?

A Bryan Eckert is a neighbor and a friend. He and I have actually recently started dating as of about two (2) weeks ago.

Q Okay, did you have a brief relationship with him that resulted in a pregnancy that you then aborted?

A Is that pertinent?

Q The question is, did you have a brief relationship with him that –

[MOTHER]: Do I need to answer?

THE COURT: Ma’am, please. Just let him finish and then answer the question.

[FATHER’S COUNSEL]: Yes, it’s pertinent. I’d like for you to answer the question.

[MOTHER’S COUNSEL]: Let me – let me state an objection on the grounds of relevancy.

[FATHER’S COUNSEL]: It’s relevant, Your Honor, to – to the fact that she has had a relationship in the past with him and it goes to somethings [sic] that have occurred since then so I believe it is relevant.

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[MOTHER’S COUNSEL]: Having an abortion – whether somebody has an abortion or not is different than having a relationship with somebody.

THE COURT: [Counsel], do you want to rephrase?

[FATHER’S COUNSEL]: Well, Your Honor, she has represented in her interrogatory answers about certain medical conditions and she failed to mention that she had an abortion. I believe that’s relevant to her truthfulness.

THE COURT: Overruled.

Q Did you have a relationship – a brief relationship with Bryan Eckert that resulted in a pregnancy that you terminated?

A I didn’t know that that needed to be –

[MOTHER’S COUNSEL]: Same – same – let me –

A Yes.

[MOTHER’S COUNSEL]: Let me make my objection. Same objection. Terminating is the same thing as aborting.

THE COURT: Overruled.

***

A I did. Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 5 of 10

Q You did?

A Yes.

Q And when was that?

A That was in 2014.

Tr., Vol. 2 at 9-11. [5] On October 30, 2019, the trial court issued its order, finding in relevant part that

it was in the best interest of Child for the parties to “share joint legal custody [of

Child], with primary physical custody to be with Father[;]” and that Mother

was “entitled to parenting time . . . according to the Indiana Parenting Time

Guidelines[.]” Appealed Order at 1. As to child support, the trial court ordered

“no child support to be paid by the Mother.” Id. Mother now appeals.

Additional facts will be provided as necessary.

Discussion and Decision I. Standard of Review [6] Mother contends that the trial court abused its discretion by allowing Father’s

counsel, over objection, to elicit testimony from Mother regarding her abortion.

We first note that Father did not file an appellee’s brief. We apply a less

stringent standard of review with respect to showings of reversible error when

an appellee fails to file a brief. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 6 of 10

App. 2006). We will not undertake the burden of developing the arguments for

the appellee, and we may reverse if the appellant establishes prima facie error.

Id. When the appellant fails to sustain that burden, we will affirm. Murfitt v.

Murfitt, 809 N.E.2d 332, 333 (Ind. Ct. App. 2004). [7] We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. In re S.W., 920 N.E.2d 783, 788 (Ind. Ct. App. 2010). An abuse of

discretion occurs if the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before it. Id. A claim of error in the

admission or exclusion of evidence will not prevail on appeal unless a

substantial right of the party is affected. Ind. Evidence Rule 103(a). “[E]rrors

in the admission of evidence are to be disregarded as harmless error unless they

affect the substantial rights of a party.” In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct.

App. 2014) (internal quotations omitted). To determine whether the admission

of evidence affected a party’s substantial rights, we assess the probable impact

of the evidence upon the finder of fact. Id.

II. Admission of Testimony [8] Mother argues that the trial court abused its discretion in admitting her

testimony of her abortion over her objection because, according to Mother,

there [was] nothing in the line of questioning immediately following the overruled objection to the admissibility of [the abortion testimony] that remotely relates to [Father’s counsel’s] rationale used in the representation made to the Court in

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response to the objection or how the testimony of [Mother]’s abortion is relevant.

Brief of Appellant at 8. Mother further argues that the record “reveals no

probative value to [her] testimony of her abortion” and that her testimony

“does nothing but potentially invoke unfair prejudice.” Id. Mother asserts that

she “potentially” was “unable to receive an impartial hearing[.]” Id. at 10. [9] Even if we accept Mother’s argument that the testimony in question lacked

relevance as to custody and parenting time for Child, we find that Mother

cannot prevail. Other than bald assertions, Mother has failed to explain how

her substantial rights were affected by the admission of the testimony. Thus,

any error in the admission of the testimony is harmless. Also, there is no

evidence in the record that the trial court relied upon the abortion testimony in

making its determination regarding custody and parenting time for Child.

Furthermore, the record reveals that Mother was provided a full and impartial

two-day hearing on matters of custody, parenting time, and child support for

Child. [10] We note that while the abortion testimony that Mother challenges was

presented in the opening moments of the first day of the hearing, the parties

presented additional testimony regarding the abortion on the second day of the

hearing—when Mother’s counsel presented evidence on Mother’s petition for

the protection order against Father. The abortion matter was addressed

through testimony of Mother and Father that was elicited by both parties’ Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020 Page 8 of 10

counsel. Specifically, the testimony revealed that in February 2017, while Mother was pregnant with Child, Mother scheduled a doctor’s appointment (that was unrelated to her pregnancy), and Father showed up at the appointment unannounced. Father testified on direct rebuttal examination, and without objection from Mother, that he showed up at the appointment because he was concerned that Mother “was going to go and get an abortion.” Tr., Vol. 3 at 121. During cross-examination by Mother’s counsel, counsel asked Father if his concern was “just something that came into your mind without any information from the outside world whatsoever[,]” and the following exchange took place:

[FATHER:] I knew she had gotten an abortion from [her ex- boyfriend] . . . when she decided she didn’t want to be in a relationship with him and I was afraid she’d do the same thing with me.

[MOTHER’S COUNSEL:] She never gave you any indication she was considering an abortion?

[FATHER:] Only by her previous actions. Tr., Vol. 3 at 135-36. Mother’s counsel then recalled Mother to the witness stand to ask her the following:

[MOTHER’S COUNSEL:] [I]n regard to what [Father] said in regard to his testimony about [the] protective order. So, at any time did you ever give any indication to him that you were even considering an abortion of [Child]?

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[MOTHER:] No, I did not.

Id. at 148. [11] Testimony that was similar to the testimony presented on the first day of the

hearing, was elicited without objection on the second day of the hearing.

Mother’s counsel then continued the line of questioning and elicited additional

testimony from Father and Mother regarding the abortion. Any error in the

admission of evidence is harmless if the same or similar evidence is submitted

without objection. Homehealth, Inc. v. N. Indiana Pub. Serv. Co., 600 N.E.2d 970,

974 (Ind. Ct. App. 1992). Thus, under these circumstances, Mother has failed

to establish prima facie error, and any error in the admission of the abortion

testimony was not reversible error.

Conclusion [12] Based upon the foregoing, we conclude that any error in the admission of the

abortion testimony was harmless. We affirm the trial court’s decision awarding

joint legal and primary physical custody of Child to Father. [13] Affirmed.

May, J., and Vaidik, J., concur.

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