MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                              FILED
court except for the purpose of establishing                       Aug 30 2017, 5:56 am
the defense of res judicata, collateral                                CLERK
estoppel, or the law of the case.                                  Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




APPELLANT PRO SE
Janet P. Hixson
Charlotte, North Carolina


                                           IN THE
    COURT OF APPEALS OF INDIANA

Janet P. Hixson,                                         August 30, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         85A05-1701-DR-138
        v.                                               Appeal from the Wabash Superior
                                                         Court
Doyle L. Silvers,                                        The Honorable Robert R.
Appellee-Respondent                                      McCallen, III, Special Judge
                                                         Trial Court Cause No.
                                                         85D01-0706-DR-207



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017      Page 1 of 10
[1]   Janet P. Hixson (“Mother”) appeals the trial court’s order granting Doyle L.

      Silvers (“Father”) custody. We affirm.



                               Facts and Procedural History
[2]   Mother and Father married in 1999. Two children were born of the marriage,

      A.L.S., 1 born May 29, 2000, and L.S., born February 12, 2005 (collectively,

      “Children”). The marriage was dissolved on April 21, 2009. Mother

      subsequently married Richard Hixson (“Stepfather”) and moved to North

      Carolina. Father lives in Indiana.


[3]   The trial court initially awarded Mother custody of Children. On July 29,

      2013, Father filed a petition to modify custody. Mother filed a verified

      information on contempt on October 23, 2013, and Father filed the same on

      December 27, 2013; June 10, 2014; and June 30, 2014. Both parties also filed

      claims for Guardian ad Litem (“GAL”) fees. The trial court held a hearing on

      all matters on September 16 and 18, 2014.




      1
       In the trial court’s order, A.L.S. is referred to as either his first or middle name, as he is called by a different
      name based on which parent has custody. The trial court noted in its order:
               While at his Mother’s home, the parties’ son is referred to as [L.]. While at his Father’s home, he is
               referred to as [A.]. Anyone put in this boy’s situation would not know who he is, where his loyalties
               should lie, and would probably not like himself very much.
      (App. at 75.) We refer to him as A.L.S. throughout.

      Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017                   Page 2 of 10
[4]   In an order on September 18, 2014, the trial court “reluctantly awarded

      temporary custody of the parties’ minor children to Father.” (App. at 72.) In

      doing so, the trial court entered detailed findings and concluded:

               34. Although it is a close call, the Court finds that a modification
               of the prior custody order, by awarding custody to Father
               temporarily, subject to further hearing, would be in the best
               interests of the parties’ minor children. The primary reason for
               this finding is the fact that conflict in the Hixson home is
               impacting the parties’ son in a profoundly negative way.


               35. There have also been substantial changes in the statutory
               factors[ 2] listed above as follows:


                        (a) [A.L.S] is now 14, he is now five years older than he
                        was when custody was awarded to Mother. He would
                        benefit from having a more significant relationship with
                        Father as he struggles through the difficulties of
                        adolescence. This is particularly true given his
                        relationship with [Stepfather].


                        (b) [A.L.S.] is now 14 and wants to live with his Father.


                        (c) The relationship between [A.L.S.] and [Stepfather] has
                        deteriorated to the point that the boy is running away and
                        making false 911 calls to avoid returning to the home.


                        (d) There is evidence of a pattern of domestic violence in
                        [Mother’s] home. Even if it is not physical violence, as



      2
       This refers to Indiana Code section 31-17-2-8, which requires the trial court to consider eight factors when
      modifying child custody.

      Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017             Page 3 of 10
                      [Mother and Stepfather] maintain, the level and frequency
                      of their disputes is profoundly disrupting the lives of the
                      parties’ children and is impeding their emotional
                      development.


              36. The Court therefore modifies its prior custody order and now
              awards temporary custody of the parties’ minor children,
              [A.L.S.] (born May 29, 2000) and [Ly.S.] (born Feb. 12, 2005) to
              [Father], effective September 22, 2014, subject to further order of
              the Court.


      (App. at 76-7) (footnote in original omitted, footnote added). The trial court

      ordered Father to enroll Children in counseling, set forth a schedule for holiday

      visitation subject to the GAL’s recommendations, and required the parties to

      participate in monthly status hearings.


[5]   After the trial court’s order, the parties continued to have issues communicating

      and disagreements regarding holiday visitation. Near the end of 2014, a

      protective order was issued restricting Stepfather from having contact with

      A.L.S. On April 10, 2015, the Department of Child Services (“DCS”) filed a

      petition to declare Children were in need of services (“CHINS”) following a

      physical altercation between A.L.S. and Father. Children were removed from

      Father’s home and placed in foster care for a short time because Children could

      not reside with Mother due to the active protective order involving Stepfather

      and A.L.S. When the CHINS case concluded, Children were returned to

      Father on April 1, 2016.




      Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017   Page 4 of 10
[6]   On November 17, 2016, the trial court held a hearing on modification of

      permanent custody of Children. The same day, the trial court issued an order

      awarding permanent custody of Children to Father and requiring Mother to pay

      child support.



                                 Discussion and Decision
[7]   We first note Mother proceeds in this appeal pro se. A litigant who proceeds pro

      se is held to the same established rules of procedure that trained counsel is

      bound to follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009),

      trans. denied, cert. dismissed. One risk a litigant takes when she proceeds pro se is

      that she will not know how to accomplish all the things an attorney would

      know how to accomplish. Id. When a party elects to represent herself, there is

      no reason for us to indulge in any benevolent presumption on her behalf or to

      waive any rule for the orderly and proper conduct of her appeal. Foley v.

      Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).


[8]   Additionally, we note Father did not file a brief. When an appellee does not

      submit a brief, we do not undertake the burden of developing arguments for

      that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002).

      Instead, we apply a less stringent standard of review and may reverse if the

      appellant establishes prima facie error. Id. Prima facie error is “error at first sight,

      on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d

      216, 221 (Ind. Ct. App. 2006).



      Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017   Page 5 of 10
[9]    When a party requests modification of custody, we review the court’s decision

       for an abuse of discretion, because we give wide latitude to our trial court

       judges in family law matters. Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind.

       Ct. App. 2010). A petitioner seeking modification has the burden to

       demonstrate the existing custody arrangement needs to be altered. Id. As we

       undertake our review, we neither reweigh the evidence nor assess witness

       credibility. Id. Rather, we consider only the evidence and inferences most

       favorable to the trial court’s judgment. Id.


[10]   Our legislature has defined the circumstances under which a custody order may

       be modified:

               (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.


               (b) In making its determination, the court shall consider the
               factors listed under section 8 of this chapter.


       Ind. Code § 31-17-2-21 (“Section 21”). The factors the court must consider

       under Ind. Code § 31-17-2-8 (“Section 8”) include:


               (1) The age and sex of the child.


               (2) The wishes of the child’s parent or parents.

       Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017   Page 6 of 10
               (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.


               (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, and if the evidence is sufficient, the court shall
               consider the factors described in section 8.5(b) of this chapter.


[11]   The trial court concluded “many substantial and continuing changes have

       occurred since the initial award of custody to [Mother], making such permanent

       Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017   Page 7 of 10
       award of custody to [Father] in the children’s best interests.” (App. at 63.) To

       support that conclusion, the trial court found:

               In that [Mother] chose to call the parties’ son, [A.L.S.], as a
               witness, the Court declined to conduct an in-camera interview of
               either [A.L.S.] or [L.S.]. The Court believes that placing [A.L.S.]
               on the witness stand was not in his best interests and, frankly,
               showed a callous disregard for his well-being. He was clearly
               conflicted by being called as a witness. While he expressed some
               interest in living with [Mother], at least for awhile to help her, it
               was for all the wrong reasons. Clearly the [Mother] has laid a
               guilt trip on [A.L.S.].


               The Court declines to order any unsupervised parenting time or
               contact between [Mother] and the children. Instead, the Court
               orders the parties to continue counseling with Ed Pereria, with
               the goal of expanding [Mother’s] contact with the children and
               ultimately full parenting time. Had the [Mother] kept her word
               that she was no longer contesting custody, which she gave in a
               counseling session on or about October 4, 2016, and further
               engaged in the joint counseling to address her contact and
               parenting time as was also discussed, progress toward this goal
               would likely have already occurred. Instead, that opportunity
               has been wasted.


       (Id. at 63-4.)


[12]   Mother argues the trial court’s decision to award Father permanent custody of

       Children is not supported by the evidence. However, her argument consists of

       statements unsupported by the record, e.g., “Depriving [L.S.] of contact with

       her Mother during this important developmental period is not in her best

       interests,” (Br. of Appellant at 30); strategically selected statements by A.L.S.


       Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017   Page 8 of 10
       taken out of context; and criticisms of the trial court’s findings, e.g., “[the

       court’s] observations are not based on evidence but are a byproduct of one’s

       prejudice and agenda.” (Id. at 33.) Her contentions are invitations for us to

       reweigh the evidence and judge the credibility of witnesses, which we cannot

       do. See Julie C., 924 N.E.2d at 1256 (appellate court does not reweigh evidence

       or judge the credibility of witnesses).


[13]   There was sufficient evidence to support the trial court’s decision. Father was

       granted temporary custody because of allegations of abuse by Stepfather. After

       the temporary change in custody, A.L.S. began attending counseling with

       Pereria. Father participated in counseling on a regular basis, Mother did so

       sporadically. Mother and Stepfather did not present evidence they had done

       anything to address the abuse allegations, such as attend counseling. Father

       and A.L.S. were the subject of a DCS investigation following a physical

       altercation between Father and A.L.S., but that has since been resolved and

       Father and A.L.S. were working through those issues in counseling. Father

       reported both Children were on the honor roll at school and A.L.S. was

       involved in extracurricular activities. We conclude the trial court did not abuse

       its discretion when it awarded Father custody of Children. 3 See In re Marriage of



       3
         Mother also argues the trial court made several errors in computing the amount of child support she owed
       Father. Some of these errors she claims to have presented to court as part of her motion to correct errors.
       However, she did not include a copy of that document in the record, so we are unable to determine if the trial
       court erred by denying her motion. Further, the record we have before us does not indicate Mother presented
       argument regarding the amount of child support at the hearing on modification. Thus, she has waived the
       issue of the amount of child support for failure to provide a complete record and for failure to present the
       issue regarding the trial court’s computation of the child support amount before the trial court. See Ind. App.
       R. 46(A)(8)(a) (argument must be supported by citations to relevant parts of the record); see also Leone v.

       Court of Appeals of Indiana | Memorandum Decision 85A05-1701-DR-138 | August 30, 2017             Page 9 of 10
       Sutton, 16 N.E.3d 481, 486 (Ind. Ct. App. 2014) (modification of custody

       affirmed because evidence of Section 8 factors supported modification of

       custody to father).



                                                   Conclusion
[14]   The trial court did not abuse its discretion when it awarded permanent custody

       to Father. We affirm.


[15]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Keesling, 858 N.E.2d 1009, 1014 (Ind. Ct. App. 2006) (failure to provide cogent argument or citations to
       relevant parts of the record waives the issue for appellate review), trans. denied; and see Van Winkle v. Nash, 761
       N.E.2d 856, 859 (Ind. Ct. App. 2002) (party’s failure to raise issue before the trial court results in waiver of
       that issue on appeal).
       Similarly, Mother contends the trial court committed several procedural errors, including: “Not providing
       Reports as required,” “Withholding Evidence,” “Delay in hearing,” and “Coercion.” (Br. of Appellant at
       18.) Mother did not raise these issues before the trial court. They are waived. See Van Winkle, 761 N.E.2d at
       859 (party’s failure to raise issue before the trial court results in waiver of that issue on appeal).



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