MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Nov 17 2017, 9:25 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Timothy Logan                                            Michael H. Michmerhuizen
Benson, Pantello, Morris, James &                        Barrett McNagny LLP
Logan, LLP                                               Fort Wayne, Indiana
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re: The Paternity of                                  November 17, 2017
M.B. (Minor Child),                                      Court of Appeals Case No.
                                                         90A04-1704-JP-942
By Next Friend,                                          Appeal from the Wells Circuit
Briana L. (Wedding) Murawski,                            Court
                                                         The Honorable Kenton W.
Appellant-Petitioner,
                                                         Kiracofe, Judge
        v.                                               Trial Court Cause No.
                                                         90C01-1208-JP-41
Seth Logan Boyd,
Appellee-Respondent.



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017          Page 1 of 13
                               Case Summary and Issues
[1]   Briana Murawski (“Mother”) and Seth Boyd (“Father”) are the parents of M.B.

      Mother appeals from the trial court’s order denying her motion to modify

      custody, parenting time, and child support and ordering her to pay Father’s

      attorney’s fees. Specifically, Mother raises two issues for our review, which we

      restate as: whether the trial court abused its discretion in 1) denying Mother’s

      motion to modify parenting time; and 2) ordering Mother to pay a portion of

      Father’s attorney’s fees. Concluding the trial court did not abuse its discretion,

      we affirm.


                            Facts and Procedural History
[2]   Father and Mother (collectively, “Parents”) have one child, M.B., who was

      born in 2011. The trial court entered an order regarding the paternity, custody,

      parenting time, and support of M.B. on December 10, 2012. Pursuant to that

      order, Mother was awarded primary physical custody and the Parents were

      granted joint legal custody. The court also adopted Father’s proposed parenting

      time schedule:

         Mon.           Tue.         Wed.            Thur.          Fri.           Sat.          Sun.
       Father –        Mother       Mother –         Father       Father –        Mother        Mother
        to 6:30                      to 6:30                       to 6:30
          pm                           pm                            pm
       Mother –        Father       Father –        Mother        Mother –         Father       Father
        to 6:30                      to 6:30                       to 6:30
          pm                           pm                            pm




      Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 2 of 13
[3]   Since the 2012 order, both Parents have relocated, now living about one-half

      hour apart. Mother has married and has a daughter with her husband. While

      Mother formerly worked fluctuating hours at Walgreens, she has since acquired

      full-time employment with the Indiana Department of Transportation and

      obtained health insurance. Father is engaged and living with the mother of

      their two children. He continues to work for his same employer but has

      transitioned from second shift to third shift, Sunday night through Friday

      morning.


[4]   In 2015, M.B. began attending a pre-school Mondays, Wednesdays, and

      Fridays from 9:00 until 11:30 in the morning. The school is about ten minutes

      from Mother’s home and thirty minutes from Father’s home. Parents agreed

      that M.B. should attend the same school for elementary, and M.B. began

      kindergarten in the fall of 2017.


[5]   On April 1, 2016, Mother filed a motion to modify custody, parenting time, and

      child support seeking to end shared parenting time and obtain sole legal

      custody, alleging that “continuous and substantial changes in circumstances”

      had rendered the physical custody arrangement no longer in the child’s best

      interest. Corrected Appendix of the Appellant, Volume II at 58. On November

      28, 2016, Mother filed a motion for emergency modification, claiming “since

      the date of the last court Order, the minor child has been placed in immediate

      or irreparable harm in the care of [Father].” Id. at 67. Among other things,

      Mother claimed that Father was not home with the child during parenting time,

      that Father sleeps in the car while the child is in preschool, and that due to

      Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 3 of 13
      Father’s inability to provide M.B. a set routine, she is often overly tired and has

      developed behavioral issues.


[6]   Father filed a response, and the trial court held a hearing on Mother’s pending

      motions on March 24, 2017. At the hearing, Mother clarified that she was no

      longer seeking sole legal custody and her request was only for parenting time

      pursuant to the Parenting Time Guidelines.


[7]   On March 31, 2017, the court entered its order finding that Mother had failed

      to meet her burden and denied her motion for modification of custody,

      parenting time, and child support, as well as her motion for emergency

      modification. The court found that Father had incurred attorney’s fees in the

      amount of $11,456.78, in relation to the motions filed by Mother, and ordered

      Mother to reimburse Father $8,600.00. Mother now appeals.


                                 Discussion and Decision
                       I. Modification of Parenting Time
                                        A. Standard of Review
[8]   Modifications of parenting time are reviewed for abuse of discretion. Miller v.

      Carpenter, 965 N.E.2d 104, 108 (Ind. Ct. App. 2012). We grant latitude and

      deference to our trial judges in family law matters. Werner v. Werner, 946

      N.E.2d 1233, 1244 (Ind. Ct. App. 2011), trans. denied. We consider only the

      evidence favorable to the judgment and the inferences flowing therefrom. Id.

      We do not reweigh the evidence or assess witness credibility. Id.


      Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 4 of 13
[9]    The trial court entered findings of fact and conclusions thereon pursuant to

       Indiana Trial Rule 52(A). We apply a two-tiered standard of review to such

       cases. Marion Cty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216 (Ind.

       2012). First, we determine whether the evidence supports the findings of fact

       and second, we determine whether the findings support the judgment. In re

       Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied.

       Indiana’s appellate courts “shall not set aside the findings or judgment unless

       clearly erroneous, and due regard shall be given to the opportunity of the trial

       court to judge the credibility of the witnesses.” T.R. 52(A). “A judgment is

       clearly erroneous if it applies the wrong legal standard to properly found facts.”

       Kondamuri v. Kondamuri, 852 N.E.2d 939, 944 (Ind. Ct. App. 2006).

[10]   Where, as here, the findings and conclusions are entered sua sponte, “the

       specific findings control only as to the issues they cover, while a general

       judgment standard applies to any issue upon which the trial court has not

       found, and we may affirm a general judgment on any theory supported by the

       evidence adduced at trial.” Sexton v. Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct.

       App. 2011), trans. denied.

                               B. Modification of Parenting Time
[11]   Mother challenges the trial court’s denial of her petition to modify parenting

       time arguing the court abused its discretion by applying an incorrect legal

       standard.




       Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 5 of 13
[12]   To begin, we note that Mother does not appeal the trial court’s decision

       regarding custody. Mother withdrew her request to modify custody at the

       hearing. Therefore, the only question posed to the trial court was one of

       parenting time. The trial court made the following findings:


               5.      Under Indiana law, the Court may not modify a child
                       custody order unless the modification is in the best interest
                       of the child; and, there is a substantial change in one (1) or
                       more of the factors that the court may consider under I.C.
                       31-17-2-8. See I.C. 31-17-2-21.


               6.      The Court finds that Mother has not met her burden and
                       the Court now respectfully DENIES Mother’s Motion to
                       Modify Custody and Parenting Time, as well as the
                       Motion for Emergency Modification of Parenting Time.


       Corrected App. of Appellant, Vol. II at 16.


[13]   The trial court cited to Indiana Code section 31-17-2-21 (“dissolution custody

       modification statute”), which states the requirements to modify a child custody

       order following a dissolution. The statute states:


               (a) The 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 court may consider under section 8, and, if
                       applicable, section 8.5 of this chapter.


       Ind. Code § 31-17-2-21.

       Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 6 of 13
[14]   Modifications of custody in the paternity context are actually governed by

       Indiana Code section 31-14-13-6 (“paternity custody modification statute”), but

       the substance of the two statutes are virtually identical.1 Both the dissolution

       custody modification statute and the paternity custody modification statute

       point to other statutes enumerating factors that a court shall consider in

       determining the best interest of a child.2 Those statutes, Indiana Code section

       31-17-2-8 and Indiana Code section Indiana Code section 31-14-13-2,

       enumerate the same factors, with only one exception not applicable here. 3


[15]   However, as noted, the issue before the trial court was one of parenting time,

       not custody. Modifications of parenting time in the context of paternity, as

       here, are governed by Indiana Code section 31-14-14-2. The statute provides

       that, “The court may modify an order granting or denying parenting time rights

       whenever modification would serve the best interests of the child.” Id. Thus,

       while modifications of custody require a showing of the best interests of the

       child and a substantial change, modifications of parenting time require only a




       1
           Indiana Code section 31-14-13-6 states:

                (a) The 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 court may consider
                  under section 2, and, if applicable, section 2.5 of this chapter.


       2
        Indiana Code section 31-17-2-21 cites to Indiana Code section 31-17-2-8 while Indiana Code section 31-14-
       13-6 cites to Indiana Code section 31-14-13-2.
       3
        Indiana Code section 31-14-13-2 does not consider the designation of a power of attorney. See Ind. Code §
       31-17-2-8(9).

       Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017               Page 7 of 13
       showing of the best interests of the child. Miller v. Carpenter, 965 N.E.2d 104,

       110 (Ind. Ct. App. 2012).


[16]   Mother contends that the trial court applied the standard for modification of

       custody to the issue of parenting time:


               [Mother] is not arguing that the court erred in weighing the
               evidence and drawing reasonable inferences per se, but rather that
               it erred in applying an incorrect standard to a controversy
               requiring “foremost consideration to the best interests of the
               child.”


       Corrected Appellant’s Brief at 23.


[17]   We agree that paragraphs 5 and 6 of the trial court’s order must be read in

       conjunction and that the trial court did consider both a change in circumstances

       and the best interests of the child regarding a modification of parenting time.

       However, while parenting time is determined by a best interests of the child test,

       if there is no change in circumstances it is difficult to show that the child’s best

       interests are no longer served by the original order. Here, Mother argues there

       is sufficient change to render a modification of parenting time in the best

       interests of the child because the child recently began attending school, she is

       older than when the existing parenting time was determined, and the distance

       between the parties has increased. Further, Mother alleges the current

       parenting schedule takes a physical toll on M.B., creating behavioral problems

       and leaving her “miserable” and “wearing her thin.” Transcript, Volume II at

       11-12, 44.


       Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 8 of 13
[18]   We find sufficient evidence in the record to support the trial court’s judgment.

       Because the trial court did not make any specific findings regarding parenting

       time, and none were requested, a general judgment standard applies. Sexton,

       946 N.E.2d at 1183. Furthermore, the trial court’s failure to make more

       detailed findings is not an indication that the court failed to carefully consider

       the evidence and correctly apply the law. See Baxendale v. Raich, 878 N.E.2d

       1252, 1257-58 (Ind. 2008) (affirming the trial court’s modification of custody

       where no specific findings were made but evidence in the record supported the

       trial court’s decision).


[19]   Mother has failed to demonstrate that a modification of parenting time is in the

       best interests of the child. In the interest of stability and consistency, the current

       parenting time schedule has been in place since December 2012, almost all of

       M.B.’s life, and the parties successfully adhered to the schedule while M.B. was

       in preschool three days a week. Father enjoys a good relationship with M.B.

       and when Father is not with the child, M.B. is with Father’s fiancée. To the

       contrary, if the modification in parenting time was granted, M.B. would spend

       a significant amount of time with a babysitter while not in school. We therefore

       find a rational basis for the court’s decision and there is no abuse of discretion.

       See Meisberger v. Bishop, 15 N.E.3d 653, 656 (Ind. Ct. App. 2014).


                                         II. Attorney’s Fees
[20]   Mother also challenges the trial court’s order requiring her to pay $8,600.00

       towards Father’s attorney’s fees. We review a decision to award attorney’s fees


       Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 9 of 13
       and the amount of any award for an abuse of discretion. Allen v. Proksch, 832

       N.E.2d 1080, 1102 (Ind. Ct. App. 2005).


[21]   Indiana Code section 31-14-18-2 permits a trial court to award attorney’s fees in

       paternity actions. The statute provides:


               (a) The court may order a party to pay:


                       (1) a reasonable amount for the cost to the other party of
                           maintaining an action under this article; and


                       (2) a reasonable amount for attorney’s fees, including
                           amounts for legal services provided and costs incurred,
                           before the commencement of the proceedings or after
                           entry of judgment.


       Ind. Code § 31-14-18-2.

[22]   In determining such award, the trial court should consider the parties’

       resources, their economic conditions, their respective ability to earn adequate

       income through employment, and other factors that bear on the reasonableness

       of the award. Gillette v. Gillette, 835 N.E.2d 556, 564 (Ind. Ct. App. 2005). The

       trial court may also look to the responsibility of the parties in incurring the

       attorney’s fees. Mason v. Mason, 775 N.E.2d 706, 711 (Ind. Ct. App. 2002),

       trans. denied. The trial court has broad discretion in awarding attorney’s fees.

       Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App. 2015), trans. denied. “We

       may reverse the trial court’s decision only if it is clearly against the logic and




       Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 10 of 13
       effect of the circumstances before the court.” Thompson v. Thompson, 868

       N.E.2d 862, 870 (Ind. Ct. App. 2007).


[23]   The trial court made the following findings relevant to its grant of attorney’s

       fees:


               7. Court finds Father earns $914 per week and Mother earns
               $428 per week.


               8. Father has two (2) subsequently born children and Mother has
               (1) subsequently born child.


               ***


               11. Father shall pay Mother child support for the benefit of the
               child in the amount of $56.00 per week . . . .


               ***


               14. Father incurred attorney fees in the amount of $11,456.78 in
               relation to the motions filed by Mother in this matter. The Court
               orders that Mother shall reimburse Father for $8,600.00 of said
               fees.


       Corrected App. of Appellant, Vol. II at 16-17.


[24]   Mother contends that the award was inappropriate due to the parties’

       disproportional income. On this basis alone, Mother argues, the award of

       $8,600.00 in attorney’s fees is inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 11 of 13
[25]   We disagree. The record reveals ample evidence regarding the parties’ financial

       conditions and we assume this information was considered when the court

       awarded attorney’s fees. Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App.

       2012), trans. denied. Although disparity in the parties’ income is a foremost

       consideration in awarding attorney’s fees, the trial court must also look to

       surrounding circumstances and evaluate a number of additional factors when

       arriving at its decision. See Walters v. Walters, 901 N.E.2d 508, 515 (Ind. Ct.

       App. 2009) (noting that a trial court “must consider [all] such factors . . . which

       bear on the reasonableness of the award”).


[26]   Here, Father is the sole breadwinner in his family while Mother’s husband

       earns an income in addition to income Mother earns herself. Father has two

       subsequent children and Mother has only one subsequent child. See Matter of

       Paternity of A.J.R., 702 N.E.2d 355, 364 (Ind. Ct. App. 1998) (considering the

       parties’ subsequent born children in determining reasonableness of attorney’s

       fees award). Given these considerations and Mother’s responsibility for the

       litigation, it was not an abuse of discretion to order Mother to pay a portion of

       Father’s attorney’s fees.



                                               Conclusion
[27]   For the reasons stated above, we affirm the trial court’s denial of Mother’s

       motion to modify parenting time and order that Mother pay attorney’s fees.


[28]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 12 of 13
Riley, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 90A04-1704-JP-942 | November 17, 2017   Page 13 of 13
