MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 23 2019, 9:17 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

R.A.W.,                                                 May 23, 2019
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        18A-DR-2959
        v.                                              Appeal from the Jennings Superior
                                                        Court
S.L.W.,                                                 The Honorable Gary L. Smith,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        40D01-1007-DR-109



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-2959 | May 23, 2019                       Page 1 of 7
                                          Case Summary
[1]   R.A.W. (“Father”) appeals the trial court order denying his motion to modify

      child custody. He raises one issue which we restate as whether the trial court

      abused its discretion in excluding evidence.


[2]   We affirm.



                            Facts and Procedural History
[3]   Father and S.L.W. (“Mother”), were married, and Father filed for dissolution

      of the marriage in July of 2010. On October 15, 2010, following a “final

      hearing” on the dissolution petition, the trial court issued a dissolution decree

      in which it ordered that the parties had joint physical and legal custody of their

      only child, K.W. (“Child”), born on September 15, 2006. App. at 27. In

      January of 2013, both parties filed motions to modify custody, which resulted

      in a March 14, 2013, Agreed Order specifying times to exchange for their 50/50

      custody of Child. In April of 2018, Father filed another motion to modify

      custody, and that motion resulted in a May 11, 2018, Mediated Agreed Entry

      regarding the custody schedule.


[4]   Approximately one month later—on July 11—Father filed another motion to

      modify custody in which he sought sole legal and physical custody of Child on

      the grounds that Mother “failed to disclose material information” to him about

      “inappropriate contact” by Mother’s step-children and that Child “has

      expressed a desire to stay” with Father. Id. at 76. The trial court conducted a

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2959 | May 23, 2019   Page 2 of 7
      hearing on Father’s motion on August 27 and October 29, 2018. In an order

      dated October 30, the trial court denied Father’s motion. Father now appeals.



                                Discussion and Decision
[5]   Father appeals the denial of his motion for a modification of child custody.

      Mother did not submit an appellee’s brief.


              In such a situation, we do not undertake the burden of
              developing arguments for the appellee. Applying a less stringent
              standard of review with respect to showings of reversible error,
              we may reverse the lower court if the appellant can establish
              prima facie error. Prima facie, in this context, is defined as at
              first sight, on first appearance, or on the face of it. Where an
              appellant is unable to meet that burden, we will affirm.


      Klotz v. Klotz, 747 N.E.2d 1187, 1189 (Ind. Ct. App. 2001) (quotations and

      citations omitted).


[6]   We review child custody determinations for an abuse of discretion, and we

      “will not substitute our own judgment if any evidence or legitimate inferences

      support the trial court’s judgment.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.

      2002). We do not reweigh the evidence or judge the credibility of the witnesses.

      E.g., Miller v. Carpenter, 965 N.E.2d 104, 108 (Ind. Ct. App. 2012). And, “[o]n

      appeal it is not enough that the evidence might support some other conclusion,

      but it must positively require the conclusion contended for by appellant before

      there is a basis for reversal.” Kirk, 770 N.E.2d at 307 (quotation and citation

      omitted); see also Carmichael v. Siegel, 754 N.E.2d 619, 635 (Ind. Ct. App. 2001)

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2959 | May 23, 2019   Page 3 of 7
      (“[W]ith respect to physical custody, a noncustodial parent must show

      something more than isolated acts of misconduct by the custodial parent to

      warrant a modification of child custody; he or she must show that changed

      circumstances regarding the custodial parent’s stability and the child’s well-

      being are substantial.”). The petitioner seeking modification bears the burden

      of demonstrating that the existing custody order should be altered. Kirk, 770

      N.E.2d at 307.


[7]   Pursuant to Indiana Code Section 31-17-2-21, a trial court may not modify an

      existing child custody order unless (1) the modification is in the best interests of

      the child, and (2) there has been a substantial change in one or more of the

      statutory factors set forth in 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




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2959 | May 23, 2019   Page 4 of 7
                      (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.


[8]   Here, Father contends that the trial court erred when it “systematically refused

      to allow Father to introduce evidence” of facts and circumstances that occurred

      prior to the May 11, 2018, agreed custody order and, thus, “erroneously denied

      Father the ability to present his case.” Appellant’s Br. at 9. Specifically, Father

      alleges that the trial court erroneously excluded evidence of the following : (1)

      a Department of Child Services (“DCS”) investigation into allegations of

      inappropriate behavior of Mother’s step-children prior to May 11, 2018; (2)

      “aggressive conflicts” between Mother and Father’s current wife, Melissa,

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2959 | May 23, 2019   Page 5 of 7
       (“Melissa”) in Child’s presence; (3) Mother’s history of allegedly leaving Child

       in Father’s exclusive care for long periods of time; and (4) Mother’s alleged

       history of mental health concerns. Id. We review the exclusion of evidence for

       an abuse of discretion. E.g., Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002).


[9]    Father’s contention that the trial court excluded the above-referenced evidence

       is factually inaccurate. The trial court did allow the introduction of testimony

       about: the DCS investigation, Tr. at 6, 8, 20-21, 26, 43-44, 52, 66;1 the

       arguments between Mother and Melissa, Tr. at 14-15, 23, 48, 53-56; the

       allegations that Mother left Child with Father for extended periods of time in

       2009 and 2010, Tr. at 69-70;2 and questions about Mother’s mental health, Tr.

       at 71.3


[10]   Moreover, even if we assume, without deciding, that the trial court refused to

       “consider” such admitted evidence and that refusal was erroneous,4 we affirm



       1
         We note that the trial court also appears to have informed Father that he could bring DCS in to testify
       about the previous investigation, but Father chose not to do so. Tr. at 81.
       2
         Although the trial court stated that it believed such evidence had “almost no significance to the
       conversation today,” it nevertheless allowed the witness to answer the question about whether Mother left
       Child for extended periods. Tr. at 69-70. However, the testimony on that topic was inconclusive, at best. Id.
       3
         Although the trial court noted that only questions related to the time from May 11, 2018, forward were
       relevant, it nevertheless allowed the witness to answer Father’s question regarding whether the witness had
       ever heard Mother threaten to commit suicide; the witness, Father’s friend, responded, “To my knowledge,
       no. Honestly, I’ve never heard her.” Tr. at 71.
       4
         Indiana Code Section 31-17-2-21(c) provides that, in actions to modify child custody, “[t]he court shall not
       hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter
       relates to a change in the factors relating to the best interests of the child as described by section 8 … of this
       chapter.” Here, we note the last—and only—custody order resulting from a “custody proceeding” (rather
       than a stipulation of the parties) was the dissolution order dated October 15, 2010. See Dwyer v. Wynkoop, 684
       N.E.2d 245, 249 (Ind. Ct. App. 1997) (indicating that the term “custody proceeding” in subsection (c) does
       not “necessarily” refer to “situations where custody was originally determined solely by stipulation of the

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2959 | May 23, 2019                          Page 6 of 7
       the custody order because Father has failed to show harm from any such error.

       None of the evidence to which Father points would “positively require” a

       change in custody. Kirk, 770 N.E.2d at 307. The DCS investigation did not

       involve Child at all and, in any case, resulted in a finding that the allegations

       were unsubstantiated. Regarding the fighting between Mother and Melissa,

       there was evidence that such fighting was provoked by both women. And, even

       though the trial court allowed Father to elicit testimony regarding 2009 and

       2010 allegations of Mother leaving Child for extended periods of time and

       having mental health concerns, none of the testimony supported those

       allegations. Thus, any alleged error in refusing to consider pre-May 2011

       evidence in making the custody modification decision was harmless. Father’s

       argument amounts to a request that we reweigh the evidence, which we will not

       do. Miller, 965 N.E.2d at 108.


[11]   Father has failed to establish prima facie error, i.e., that the trial court abused its

       discretion.


[12]   Affirmed.


       Riley, J., and Pyle, J., concur.




       parties,” but, rather, to orders resulting from proceedings where evidence was heard), trans. denied. Thus, in
       this case it appears that the trial court could “hear evidence” of events that occurred on or after October 15,
       2010. I.C. § 31-17-2-21(c).

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2959 | May 23, 2019                         Page 7 of 7
