MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                          Dec 29 2017, 11:10 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                                  ATTORNEY FOR APPELLEE
Cassandra A. Kruse                                      Elizabeth Eichholtz Walker
Emswiller Williams Noland &                             Cohen & Malad, LLP
Clarke, PC                                              Indianapolis, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stacey H. Young,                                        December 29, 2017
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        29A02-1707-DR-1478
        v.                                              Appeal from the Hamilton
                                                        Superior Court
Michael A. Young,                                       The Honorable William
Appellee-Respondent.                                    Greenaway, Special Judge
                                                        Trial Court Cause No.
                                                        29D04-1308-DR-7339



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017    Page 1 of 22
                               STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Stacey H. Young (Mother), appeals the trial court’s denial

      of her motion to modify joint legal custody and parenting time of the minor

      child, O.Y. (Child), in favor of Appellee-Petitioner, Michael Young (Father).


[2]   We affirm.


                                                  ISSUES
[3]   Mother presents us with five issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion by appointing a guardian ad

              litem and allocating the fees to Mother;

          (2) Whether the trial court abused its discretion by determining that no

              substantial and continuing change of circumstances existed and a

              modification of legal custody was not in the Child’s best interest;

          (3) Whether the trial court abused its discretion in denying Mother’s request

              for modification of parenting time;

          (4) Whether the trial court abused its discretion when it ordered Mother to

              reimburse Father’s work-related childcare costs; and

          (5) Whether the trial court abused its discretion by ordering Mother to pay

              $10,000 of Father’s attorney fees.


                      FACTS AND PROCEDURAL HISTORY
[4]   Mother and Father were married on August 25, 2007. During their marriage,

      one Child was born on July 22, 2009. Mother filed a petition for dissolution of

      Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017   Page 2 of 22
      marriage on August 8, 2013. On October 14, 2013, the trial court issued a

      preliminary order, awarding Mother sole custody of the Child and granting

      Father supervised parenting time. In addition, the trial court required Father to

      attend anger management counseling and enjoined him from consuming

      alcoholic beverages during his parenting time with the Child. The trial court

      ordered Father to pay weekly child support in the amount of $267.75, which

      included a weekly credit of $199 for work-related childcare expenses which

      Mother was responsible for paying. On December 1, 2013, the trial court

      allowed Father to commence unsupervised parenting time. On February 26,

      2014, the trial court appointed Wendy Clar as the Child’s guardian ad litem

      (GAL Clar). GAL Clar submitted her final report to the trial court on

      November 10, 2014, in which she recommended that the parties share legal and

      physical custody of the Child, with the support of a parenting coordinator.


[5]   Following a contested hearing on January 30 and February 2, 2015, the trial

      court issued a final decree of dissolution of marriage on April 1, 2015, awarding

      Mother and Father joint legal and physical custody of the Child, with Father

      having extensive parenting time. In addition, the trial court granted Father “the

      ultimate right to decide whether [the Child] receive recommended

      vaccinations.” (Appellant’s App. Vol. II, p. 186). Erin Durnell was appointed

      as the Parenting Coordinator (PC Durnell), with authority “limited to decisions

      regarding [the Child’s] healthcare, including immunizations, medicine, diet,

      food, and allergies.” (Appellant’s App. Vol. II, p. 187). Although the trial




      Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017   Page 3 of 22
      court incorporated a provision for child support, the decree is silent as to any

      childcare expenses.


[6]   Following the trial court’s award of joint legal custody, on September 24, 2015,

      Mother advised Father that she had made an appointment with the Child’s

      dentist for a routine check-up. Although Father initially objected to ongoing

      treatment with the Child’s dentist because Father could receive less expensive

      dental treatments for the Child at the dentist office where his sister was

      employed, he allowed the scheduled appointment to proceed. After being seen

      by the dentist, it was determined that the Child suffered from severe tooth decay

      and required several root canals. The Child’s dentist referred the Child to Dr.

      Kira Stockton (Dr. Stockton), a pediatric dentist. On November 12, 2015, Dr.

      Stockton performed an operating room procedure to complete all the necessary

      dental work in one appointment. In May of 2016, the Child had a routine

      appointment with Dr. Stockton and was found to do well with his oral hygiene.


[7]   On April 15, 2016, PC Durnell issued her first Binding Recommendation

      following her appointment by the trial court. The primary issue mediated by

      PC Durnell focused on the Child’s immunizations. As a chiropractor, Mother

      “has long been opposed to immunizations.” (Appellant’s App. Vol. II, p. 69).

      “Her professional training and her own experience in directing [the Child’s]

      health from his birth have convinced her that immunizing him is not necessary

      for maintaining his good health, and that his body is capable of fighting off

      disease because he is so health[y].” (Appellant’s App. Vol. II, p. 71). Father,

      on the other hand, wished for the Child to be vaccinated. Mindful of both

      Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017   Page 4 of 22
      parties’ positions, PC Durnell recommended the Child to be immunized on a

      delayed schedule, receiving “one (1) injection every four (4) weeks, which is a

      deviation from the [Center for Disease and Control’s (CDC)] catch-up

      schedule. The parties shall follow [the Child’s pediatrician’s] recommendations

      for prioritizing the vaccinations, and shall not argue with [the pediatrician] at

      any of [the child’s] appointments about which injection should be given at that

      appointment.” (Appellant’s App. Vol. II, p. 72). Father was responsible for

      taking the Child to the immunization appointments, while Mother would be

      permitted to attend. After the Child received his second combination vaccine

      for diphtheria, tetanus, pertussis, and polio (DTap) on July 21, 2016, the Child

      developed a swelling at the injection side and was hospitalized overnight at IU

      North, where he received intravenous antibiotics to treat his reaction.


[8]   Father scheduled the child for another DTap vaccination on August 26, 2016.

      Mother objected based on the CDC’s recommended catch-up schedule, which

      advised a minimum interval of six months between doses of DTap vaccines.

      Father instead opted to have the Child vaccinated with the combination vaccine

      for measles, mumps, rubella, and varicella/chickenpox at the August 26, 2016

      appointment, again over Mother’s objection. Although Father subsequently

      sought to have the Child injected with the DTap vaccine, he acquiesced against

      proceeding forward with the appointment after Mother moved to stay the

      immunization in which she detailed the CDC’s recommended guidelines for

      delayed vaccinations for the Child’s age. By May 17, 2017, the parties agreed




      Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017   Page 5 of 22
       that the Child would receive one vaccination when he is eleven and another

       when he is seventeen.


[9]    In March of 2015, Father was arrested and charged with felony battery resulting

       in serious bodily injury for pushing a neighbor into a door and causing injuries.

       On October 20, 2016, Father pled guilty and was sentenced to probation for one

       year. Following his arrest, Father voluntarily attended clinical psychotherapy

       with Dr. Kevin Byrd, a clinical psychologist (Dr. Byrd). Dr. Byrd counseled

       Father in anger management and provided guidance with regard to handling

       co-parenting situations. Father attended thirteen sessions, after which Dr. Byrd

       declared the therapy to be successful as Father “placed a sincere effort into

       working on the issues at hand.” (Transcript p. 106).


[10]   On April 15, 2016, after discovering Father’s arrest, Mother filed an emergency

       motion to modify custody and a motion for a change of judge. On May 2,

       2016, a special judge assumed jurisdiction. On June 17, 2016, Mother filed a

       request for a final hearing, which the trial court scheduled for August 24, 2016.

       On June 30, 2016, Father filed a motion, requesting the trial court to clarify its

       prior order with respect to the allocation of work-related childcare expenses and

       seeking the reappointment of GAL Clar. Because Mother was concerned about

       possible delays to the proceedings due to a late reappointment of GAL Clar,

       Mother objected to Father’s motion. The trial court appointed GAL Clar over

       Mother’s objection.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017   Page 6 of 22
[11]   The trial court conducted a hearing on August 24, 2016, November 2, 2016,

       and May 17, 2017, respectively. On October 13, 2016, Mother filed a motion

       for rule to show cause after Father refused to reimburse her for uninsured

       medical expenses in the amount of $1,178.72. On June 8, 2017, the trial court

       issued its Order, denying Mother’s motion for modification of custody,

       concluding in pertinent part:


               35. [] The primary dispute between the parties is the issue of [the
               Child’s] vaccinations. Mother objects to vaccinating the [C]hild.
               Father has concerns about the [C]hild’s health absent
               vaccinations. . . .


               36. While Mother has alleged that Father has made custody and
               parenting time a battlefield, the [c]ourt believes that Mother’s
               position on vaccinations and her views on a holistic way of life
               have created a great deal of controversy from which she now
               seeks an award of sole legal custody. The [c]ourt is not judging
               the wisdom of Mother’s approach to these issues, however, it is
               her steadfast adherence to the same that have caused many of the
               legal custodial issues between the parties.


               37. Mother has rejected the recommendations of the GAL.
               Mother has rejected the recommendations of the PC. Mother
               has rejected the recommendations of [the Child’s pediatrician], at
               times. It appears that Mother has rejected the [c]ourt’s order
               from the outset. A petition to modify custody is not a vehicle to
               re-litigate initial custody determination as to who might make a
               better parent. Mother should not be rewarded for her continued
               course of action through a modification of custody in her favor.
               It would appear to the [c]ourt that Mother is indeed trying to re-
               litigate issues that have already been resolved.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017   Page 7 of 22
        38. Father provided recent examples of issues resolved between
        the parties through communication and cooperation without
        involvement of the PC. Specifically, Father and Mother have
        been able to resolve (1) the most recent “vaccination dispute” as
        put before the [c]ourt in Mother’s second motion to stay and
        were able to work together with [the Child’s pediatrician], to
        resolve the same much that [the Child] will not receive the DTap
        vaccination until he is seventeen years old and that the soonest
        he would receive any additional vaccination is age eleven, and
        (2) the parties were able to interview and agree upon an
        orthodontic provider for [the Child] and begin treatment.
        Further, the GAL Report noted several instances where Father
        had compromised to resolve an issue.


        39. The GAL has recommended that joint legal custody remain
        in place. The PC supports an order of joint legal custody. The
        GAL was presented with all co-parenting and custody issues and
        attended all three days of hearings. The GAL does not believe a
        modification of legal or physical custody is warranted or in the
        child’s best interest after speaking with the child’s professional
        providers [], and after reviewing documentation that related to
        Father’s criminal conviction.


        40. The [c]ourt finds that the issues presented to the [c]ourt as
        the basis to modify custody are best addressed by reappointment
        of a PC rather than a modification of custody. While Mother
        states that such changes or issues are “substantial and
        continuing,” this [c]ourt disagrees.


                                              ****


        47. Father is a very involved parent. He is informed of various
        vaccination and medical issues pertaining to [the Child]. He
        testified about his daily routine with [the Child]. He bathes [the
        Child] daily and brushes his teeth in the morning and at night.

Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017   Page 8 of 22
        He uses his best efforts to serve organic and natural food to [the
        Child], when financially able to do so. He discussed the books
        he and [the Child] read daily. He testified as to the activities he
        and [the Child] enjoy together. [The Child] will be eight years
        old in July of 2017. [The Child] has no siblings. Father has only
        rescheduled parenting time on approximately five instances since
        he began his new position with his current employer in October
        of 2015. Those instances were largely requests by Father to
        retrieve [the Child] an hour later (or less) at the outset of his
        parenting time. Father is not required to regularly travel for
        work. During the pendency of this action, Father relocated from
        an apartment to a larger permanent residence closer to [the
        Child’s] school.


        48. The [c]ourt finds credible Father’s report that he is and has
        been abstaining from alcohol since May 11, 2016 through the
        present date, based on Father’s demeanor, [and] Dr. Byrd’s
        comments . . . . The criminal charges brought against Father []
        have been resolved without Father being incarcerated and did not
        impact the [C]hild as [the Child] was with Mother on the night
        when the incident occurred. Father indicates the criminal
        conviction and incident thereto were a “wake up call.” Father
        appears to take ownership of and responsibility for that instance
        and used the same to better himself.


        49. Father voluntarily sought psychotherapy treatment with [Dr.
        Byrd] at the GAL’s recommendation. Mother declined to do so.
        [Dr. Byrd] testified that at the time of the May 17, 2017 hearing,
        Father’s treatment was not needed past February of 2017, but
        Father chose to continue with two additional sessions. Dr. Byrd
        testified that he believed, based upon his treatment of Father, that
        Father was committed to treatment and invested in the same.
        Dr. Byrd testified that Father had acknowledged his own
        shortcomings and used that as an impetus for change in his life.
        Contrary to Mother’s assertions, Dr. Byrd does not have


Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017   Page 9 of 22
               concerns for Father’s anger issues more than “the average
               person.”


               50. This [c]ourt believes that Father is committed to parenting
               [the Child] and that it is in [the Child’s] best interest to maintain
               the current parenting time schedule. Therefore, the [c]ourt
               denies Mother’s request to modify parenting time as Mother has
               failed to meet her burden that a modification of parenting time is
               in [the Child’s] best interest.


                                                     ****


               55. Father incurred $19,000.00 in attorney fees from April 14,
               2016 through the date of the final hearing. Father has incurred a
               great deal of attorneys’ fees and PC fees to address the issue of
               whether, why, when, what and how the [C]hild will be
               vaccinated since April 15, 2016. Mother has routinely sought an
               order from the Court to limit Father’s involvement with [the
               Child] without success. Mother is not agreeable to the GAL
               recommendations and instead seeks an award of sole legal
               custody and reduced parenting time for Father. Mother has
               failed to meet her burden of proof to warrant the modification
               she seeks.


               56. Having considered the respective income of the parties, their
               overall financial status and the procedure of this case, the [c]ourt
               orders Mother to reimburse ten thousand dollars of Father’s
               attorneys’ fees incurred in litigating this matter. Absent Father’s
               contempt for failing to properly follow the provisions of the
               Decree regarding medical expenses the [c]ourt would have
               ordered twelve thousand dollars of fees.


       (Appellant’s App. Vol. II, pp. 26-27, 29-30, 31).


[12]   Mother now appeals. Additional facts are provided as necessary.
       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 10 of 22
                               DISCUSSION AND DECISION
                                             I. Standard of Review


[13]   The trial court entered specific findings of fact and conclusions thereon in its

       Order denying the modification of custody. Pursuant to Indiana Trial Rule

       52(A), this court will “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.” Jarrell v. Jarrell, 5 N.E.3d 1186, 1190

       (Ind. Ct. App. 2014) (citing D.C. v. J.A.C., 977 N.E.2d 951, 953 (Ind. 2012)),

       trans. denied. Considering only the evidence most favorable to the trial court’s

       judgment and all reasonable inferences derived therefrom, we will find clear

       error only if the evidence, either directly or by inference, fails to support the

       findings, or if the findings fail to support the conclusions. Id.


[14]   In addition, there is a well-established preference in Indiana “for granting

       latitude and deference to our trial judges in family law matters.” Swadner v.

       Swadner, 897 N.E.2d 966, 971 (Ind. Ct. App. 2008). “[A]ppellate courts ‘are in

       a poor position to look at a cold transcript of the record, and conclude that the

       trial judge, who saw the witnesses, observed their demeanor, and scrutinized

       their testimony as it came from the witness stand, did not properly understand

       the significance of the evidence.’” D.C., 977 N.E.2d at 956-57 (quoting Kirk v.

       Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). Our State’s courts have long

       emphasized a concern that there be finality in matters concerning child custody.

       Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind. 2008). “Modification of


       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 11 of 22
       custody is an area committed to the sound discretion of the trial court, and we

       are constrained to neither reweigh evidence nor judge the credibility of

       witnesses.” Joe v. Lebow, 670 N.E.2d 9, 23 (Ind. Ct. App. 1996).


                                   II. Appointment of Guardian Ad Litem


[15]   Mother first contends that the trial court abused its discretion by appointing

       GAL Clar over her objection. On June 30, 2016, Father requested the re-

       appointment of GAL Clar, more than two months after Mother filed her

       emergency motion for modification of custody. Mother objected to the re-

       appointment, “[g]iven that the final hearing is scheduled on August 24, 2016,

       Mother believes that appointing a GAL at this stage will likely delay the final

       hearing, as it is unlikely a GAL could have any investigation and report

       completed in less than forty-five days.” (Appellant’s App. Vol. II, pp. 82-83).

       On July 1, 2016, the trial court appointed GAL Clar over Mother’s objection.


[16]   Pursuant to Indiana Code sections 31-17-6-2; -3, it is within a trial court’s

       discretion to appoint a GAL, who “shall represent and protect the best interests

       of the child,” in a post-dissolution modification procedure. Upon her

       appointment, GAL Clar investigated the Child’s circumstances, as well as the

       parties’ respective concerns and timely filed a written report with the trial court

       prior to the hearing. Neither party moved to continue the hearing, thus no




       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 12 of 22
       delay occurred. We conclude that the trial court did not abuse its discretion in

       re-appointing GAL Clar. 1


                                        III. Modification of Legal Custody


[17]   Mother also contends that the trial court abused its discretion by denying her

       motion for modification of joint legal custody to sole legal custody, and

       maintains that joint legal custody has become a battlefield and the parties are

       no longer able and willing to cooperate to advance the Child’s welfare.


[18]   As with modifications of physical custody, a trial court may not modify legal

       custody unless (1) the modification is in the best interests of the child and (2)

       there is a substantial change in one or more of the factors that the court may

       consider under Indiana Code section 31-17-2-8 when it originally determines

       custody. These factors are enumerated as:


                (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



       1
         In her appellate brief, Mother argues that “it is clear the GAL was operating with some bias in favor of
       Father and against Mother.” (Appellant’s Br. p. 17). However, Mother did not include this argument in her
       motion objecting to the requested re-appointment of GAL Clar. As a party cannot advance an argument for
       the first time on appeal, it is waived for our review. Birkheimer v. Birkheimer, 981 N.E.2d 111, 120 (Ind. Ct.
       App. 2012), reh’g denied. Similarly, in her statement of issues, Mother contends that the trial court erred
       “when it ordered Mother to pay [GAL Clar’s] fees.” (Appellant’s Br. p. 4). Nevertheless, nowhere in the
       argument section of her brief does Mother present this court with her “contentions on the issue[], supported
       by cogent reasoning.” See Ind. Appellate Rule 46(A)(8(a). Accordingly, the issue of GAL Clar’s fees is
       waived for our review.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 13 of 22
                      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[.]



       I.C. § 31-17-2-8. In addition, in evaluating if joint legal custody should be

       modified, a trial court must consider the factors listed in I.C. § 31-17-2-15:


               (1) the fitness and suitability of each of the persons awarded joint
               custody;
               (2) whether the persons awarded joint custody are willing and
               able to communicate and cooperate in advancing the child’s
               welfare;
               (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) whether the child has established a close and beneficial
               relationship with both of the persons awarded joint custody;
               (5) whether the persons awarded joint custody:
                      (A) live in close proximity to each other; and
                      (B) plan to continue to do so; and
               (6) the nature of the physical and emotional environment in the
               home of each of the persons awarded joint custody.



[19]   “In the initial custody determination, both parents are presumed equally

       entitled to custody, but a petitioner seeking subsequent modification bears the

       burden of demonstrating the existing custody should be altered.” Kirk v. Kirk,

       770N.E.2d 304, 307 (Ind. 2002). Custody matters typically turn on factual


       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 14 of 22
       determinations and will be set aside only if such determinations are clearly

       erroneous. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). On appeal, it

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

       must positively require the conclusion contended for by appellant before there is

       any basis for reversal. Kirk, 770 N.E.2d at 307. Because a change in

       circumstances must not only be substantial, as required by the statute, this

       change “must be judged in the context of the whole environment[.]” Jarrell, 5

       N.E.3d at 1193. Most importantly, “[t]he effect on the child is what renders a

       change substantial or inconsequential.” Id.


[20]   Reviewing the familial situation since the institution of joint legal custody on

       April 1, 2015, Mother advances that there is an “abundance of examples

       evidencing the conflict between Mother and Father[.]” (Appellant’s Br. p. 18).

       Claiming that “[t]he conflict between Father and Mother is pervasive and not

       limited to the sole issue of vaccinations or a conflict regarding a holistic

       approach to life” as concluded by the trial court, Mother focuses on the

       problems surrounding the Child’s dental care. Specifically, while she wanted

       the Child to continue to see his original dentist, Father objected because he

       desired the Child to visit the dentist where his sister worked to save costs. The

       dispute, which delayed the Child’s dental care, could have been a contributing

       factor to the Child’s extensive dental problems.


[21]   While we acknowledge the disagreements between the parties, we also notice

       an improvement in their relationship over time. Even though the parties

       maintain a different lifestyle and initially steadfastly refused to cooperate, the

       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 15 of 22
       record now includes examples of issues resolved between the parties through

       communication and cooperation without the involvement of PC Durnell. Most

       importantly, the record evidenced that the parties were able to resolve

       disagreements about the Child’s extracurricular activities and the Child’s most

       recent immunization. During the hearing, PC Durnell testified that if the court

       would award either parent sole legal custody, “an imbalance of power” would

       be created that would intensify “these battlefields[.]” (Tr. p. 99). She advised

       that the Child “needs his parents to both be making those decisions for him.”

       (Tr. p. 99).


[22]   Considering both parents’ viewpoints, GAL Clar opined at the hearing that:


               The parties have differences of opinion. I think when [Father]
               doesn’t acquiesce [Mother] views it as refusal. I think when
               [Mother] does not acquiesce, [Father] views it as her being
               difficult. There have been times where [Father] has acquiesced
               and didn’t want to, but he did it. . . . I don’t think every single
               one or every single thing is necessarily an argument.


       (Tr. p. 92). GAL Clar advised the trial court to continue the joint legal custody

       arrangement and expressed her hope that the Child get “some peace” to be “a

       little normal seven-year old child who grows up and skips and jumps and walks

       around[.]” (Tr. p. 80).


[23]   Whereas the record clearly supports indications of disagreements and

       arguments between the parties—such as reimbursement for haircuts and

       expenses, or enrolling the Child in activities and camps—at the same time, it is

       silent as to “evidence of fundamental differences in child rearing philosophies,
       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 16 of 22
       religious beliefs, or lifestyles.” Walker v. Walker, 539 N.E.2d 509, 513 (Ind. Ct.

       App. 1989). Although the parents have different lifestyles, they have not shown

       a disinclination or inability to cooperate in important matters affecting the

       welfare or the upbringing of the Child. Rather, we see a positive and gradual

       improvement over time in the parties’ willingness to make decisions advancing

       their Child’s happiness. Based on the evidence before us, we conclude that

       Mother failed to carry her burden to establish a substantial and continuing

       change of circumstances.


                                              IV. Parenting Time


[24]   Next, Mother contends that the trial court abused its discretion in denying her

       request to modify Father’s parenting time such that Father would exercise

       parenting time pursuant to the Indiana Parenting Time Guidelines. Pointing to

       Father’s use of alcohol, his anger problems, and his recent felony conviction,

       Mother seeks to reduce Father’s generous parenting time to parenting time on

       alternating weekends with one midweek visit.


[25]   Indiana has long recognized that the right of parents to visit their children is a

       precious privilege that should be enjoyed by noncustodial parents, and thus a

       noncustodial parent is generally entitled to reasonable visitation rights. Duncan

       v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied.

       Accordingly, when a custodial parent seeks to modify a parenting time order,

       the parent must show that the modification would serve the best interests of the

       child. I.C. § 31-17-4-2. “However, the court shall not restrict a parent’s


       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 17 of 22
       parenting time rights unless the court finds that the parenting time might

       endanger the child’s physical health, or significantly impair the child’s

       emotional development.” I.C. § 31-17-4-2.


[26]   In its detailed Order, the trial court found Father credible “that he is and has

       been abstaining from alcohol since May 11, 2016, through the present date.”

       (Appellant’s App. Vol. II, p. 29). As a credibility determination is within the

       trial court’s province, we will not disturb this conclusion. Jarrell, 5 N.E.3d at

       1190. During the hearing, Father presented evidence that he acknowledged his

       anger problems and voluntarily sought counseling. Dr. Byrd, Father’s clinical

       psychologist, testified to the nature of the treatment and Father’s successful

       discharge thereof. He described Father as “a willing and cooperative client all

       the way through . . . [who] placed a sincere effort into working on the issues at

       hand.” (Tr. pp. 105-06). Father presented the trial court with evidence

       indicating his involvement with his Child’s upbringing. He informed the court

       of the Child’s daily schedule when he is in Father’s care and testified as to the

       activities they share.


[27]   Although Mother reiterates several times that Father’s felony conviction cannot

       be viewed in a vacuum, but rather should be considered in the totality of the

       evidence as establishing a pattern of anger and violence, we disagree with her

       interpretation of the evidence. 2 Rather, the record establishes a clear pattern of




       2
         In support of her argument, Mother also relies on I.C. § 31-17-2-8.3 which creates a rebuttable presumption
       that the trial court “shall order that the noncustodial parent’s parenting time with the child must be

       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 18 of 22
       improvement on Father’s part. Recognizing his anger issues, Father voluntarily

       enrolled in counseling, he abstained from alcohol, and is genuinely interested

       and involved in the upbringing of the Child. We agree with the trial court that

       Mother failed to establish that modification of the current parenting time

       arrangement is in the Child’s best interest.


                                      V. Reimbursement of Childcare Costs


[28]   The preliminary order issued October 14, 2013, made Mother “responsible for

       paying Abacus Child Care Center” and gave her credit for “[w]ork-related

       [c]hild [c]are [e]xpense” on the child support worksheet. (Appellant’s App.

       Vol. II, pp. 33, 36). The April 1, 2015 dissolution decree was silent as to the

       payment of work-related childcare costs. However, the decree included the

       provision that “[a]ny issues not resolved specifically herein by this Order shall

       be addressed by separate and subsequent Order of this [c]ourt. Pending

       subsequent Order, the parties’ [p]reliminary [o]rder as it pertains to all child-

       related provisions shall remain in full force and effect.” (Appellant’s App. Vol.

       II, pp. 192-93). Father interpreted this provision to mean that the decree

       required him and Mother to continue to share work-related childcare expenses

       pro rata based on their respective income shares as was occurring through the

       child support worksheet credit under the preliminary order. Mother, on the




       supervised” if the noncustodial parent has been convicted of a crime involving domestic or family violence
       that was witnessed or heard by the noncustodial parent’s child. We find the statute inapplicable as Father
       was not convicted of a crime involving domestic or family violence, nor was the incident witnessed or heard
       by the Child.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 19 of 22
       other hand, interpreted the decree as requiring each party to provide and pay

       their own childcare expense. In its Order, the trial court “clarifie[d] the [decree]

       to note that the parties are ordered to divide any and all work-related childcare

       costs based upon their respective income shares, with Father paying sixty-five

       percent (65%) and Mother paying thirty-five percent (35%).” (Appellant’s App.

       Vol. II, p. 24). As such, the trial court ordered Mother to reimburse Father

       $623.21 “for past work-related childcare expenses.” (Appellant’s App. Vol. II,

       p. 24). Mother challenges the trial court’s conclusion, maintaining that it

       constitutes an impermissible retroactive modification of the decree.


[29]   It is firmly established that “a court that dissolves a marriage retains jurisdiction

       to interpret the terms of its decree and decide questions emanating from its

       decree pertaining to its enforcement.” Fackler v. Powell, 839 N.E.2d 165, 169

       (Ind. 2005). “Although a court may not modify a final decree, it may construe

       and clarify it in case of uncertainty, in order to sustain the decree, rather than

       defeat it; however, an order is not merely a clarification where it makes

       substantial changes in the original decree.” Shepherd v. Tackett, 954 N.E.2d 477,

       482 (Ind. Ct. App. 2011).


[30]   Here, the trial court, when faced with the issue of work-related childcare

       expenses, interpreted the decree’s provision that “[p]ending subsequent Order,

       the parties’ [p]reliminary [o]rder as it pertains to all child-related provisions

       shall remain in full force and effect.” (Appellant’s App. Vol. II, pp. 192-93).

       This preliminary order, by way of the attached child support worksheet, divided

       the childcare expenses pro rata based on the parties’ respective income shares.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 20 of 22
       Even though during the preliminary order childcare was provided by Abacus

       daycare, whereas it is currently provided by Westfield Washington Schools,

       there still remains a child-related expense, which needs to be allocated between

       the parties. As the trial court merely clarified its decree and did not institute a

       substantial chance, we affirm the trial court’s decision with respect to work-

       related childcare expenses. See id.


                                               VI. Attorney Fees


[31]   Lastly, Mother challenges the trial court’s Order, requiring her to reimburse

       Father’s attorney fees in the amount of $10,000. We review a trial court’s

       award of attorney fees for an abuse of discretion. G.G.B.W. v. S.W., 80 N.E.3d

       264, 272 (Ind. Ct. App. 2017). An abuse of discretion occurs when the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court or if the court has misinterpreted the law. Id.


[32]   Pursuant to Indiana Code Section 31-17-7-1, a trial court is permitted to

       periodically order one parent to pay reasonable attorney fees to the other parent

       related to maintaining or defending custody and parenting time proceedings.

       To award fees under this statute, a trial court must consider the parties’

       resources, their economic condition, their ability to engage in gainful

       employment and earn adequate income, and any other factors bearing on the

       reasonableness of the award. Montgomery v. Montgomery, 59 N.E.3d 343, 354

       (Ind. Ct. App. 2016). “Misconduct that directly results in additional litigation

       expenses may properly be taken into account in the trial court’s decision to


       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 21 of 22
       award attorney fees.” Allen v. Proksch, 832 N.E.2d 1080, 1102 (Ind. Ct. App.

       2005).


[33]   The trial court based its award of Father’s attorney fees on Mother’s litigious

       nature, routinely seeking a court order to limit Father’s involvement with the

       Child, as well as her resistance to PC Durnell and GAL Clar’s

       recommendations. In its calculation of the award, the trial court was guided by

       the “respective incomes of the parties, their overall financial status, and the

       procedure of this case[.]” (Appellant’s App. Vol. II, p. 31). Mindful of the trial

       court’s discretion in this area, we cannot say that the court improperly awarded

       attorney fees to Father.


                                            CONCLUSION
[34]   Based on the foregoing, we hold that the trial court properly (1) appointed the

       GAL Clar and allocated her fees to Mother; (2) denied Mother’s request for

       modification of joint legal custody; (3) denied Mother’s request for modification

       of parenting time; (4) clarified its Order with respect to work-related childcare

       expenses; and (5) awarded attorney fees to Father.


[35]   Affirmed.


[36]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 29A02-1707-DR-1478 | December 29, 2017 Page 22 of 22
