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

estoppel, or the law of the case.


APPELLANT PRO SE
Audrey Wilson
Dale, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

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

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



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020       Page 1 of 10
                                 Case Summary and Issue
[1]   Audrey Wilson (“Mother”) and Greg Elsperman (“Father”) have one child

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

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

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

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

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

      admitting into evidence the testimony about her abortion. Concluding any

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



                             Facts and Procedural History                                 1




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

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

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

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

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

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

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




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

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020                 Page 2 of 10
      born to Mother and Father on August 24, 2017. During the relationship,

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

      worked at an automobile dealership.


[3]   The parties’ relationship ended in October 2018, when Mother left Father’s

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

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

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

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

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

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

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

      until 4:00 p.m. on Saturday.


[4]   The trial court conducted a hearing on Father’s petition to establish custody

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

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

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

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




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

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

whether she had an abortion:


        Q And who is Bryan Eckert?


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


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


        A Is that pertinent?


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


        [MOTHER]: Do I need to answer?


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


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


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


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

Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020   Page 4 of 10
        [MOTHER’S COUNSEL]: Having an abortion – whether
        somebody has an abortion or not is different than having a
        relationship with somebody.


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


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


        THE COURT: Overruled.


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


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


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


        A Yes.


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


        THE COURT: Overruled.


        ***


        A I did.


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


              A Yes.


              Q And when was that?


              A That was in 2014.


      Tr., Vol. 2 at 9-11.


[5]   On October 30, 2019, the trial court issued its order, finding in relevant part that

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

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

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

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

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

      Additional facts will be provided as necessary.



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

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

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

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

      an appellee fails to file a brief. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct.
      Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020   Page 6 of 10
      App. 2006). We will not undertake the burden of developing the arguments for

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

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

      Murfitt, 809 N.E.2d 332, 333 (Ind. Ct. App. 2004).


[7]   We review a trial court’s decision to admit or exclude evidence for an abuse of

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

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

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

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

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

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

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

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

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

      of the evidence upon the finder of fact. Id.


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

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


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

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020   Page 7 of 10
                response to the objection or how the testimony of [Mother]’s
                abortion is relevant.


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

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

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

       she “potentially” was “unable to receive an impartial hearing[.]” Id. at 10.


[9]    Even if we accept Mother’s argument that the testimony in question lacked

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

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

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

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

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

       making its determination regarding custody and parenting time for Child.

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

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

       Child.


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

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

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

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

       the protection order against Father. The abortion matter was addressed

       through testimony of Mother and Father that was elicited by both parties’
       Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020   Page 8 of 10
counsel. Specifically, the testimony revealed that in February 2017, while

Mother was pregnant with Child, Mother scheduled a doctor’s appointment

(that was unrelated to her pregnancy), and Father showed up at the

appointment unannounced. Father testified on direct rebuttal examination, and

without objection from Mother, that he showed up at the appointment because

he was concerned that Mother “was going to go and get an abortion.” Tr., Vol.

3 at 121. During cross-examination by Mother’s counsel, counsel asked Father

if his concern was “just something that came into your mind without any

information from the outside world whatsoever[,]” and the following exchange

took place:


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


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


        [FATHER:] Only by her previous actions.


Tr., Vol. 3 at 135-36. Mother’s counsel then recalled Mother to the witness

stand to ask her the following:


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

Court of Appeals of Indiana | Memorandum Decision 19A-JP-3083 | August 17, 2020   Page 9 of 10
               [MOTHER:] No, I did not.


       Id. at 148.


[11]   Testimony that was similar to the testimony presented on the first day of the

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

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

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

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

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

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

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

       testimony was not reversible error.



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

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

       joint legal and primary physical custody of Child to Father.


[13]   Affirmed.


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




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