MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Apr 27 2017, 10:02 am
this Memorandum Decision shall not be                                          CLERK
regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jacob H. Miller                                          Andrea Ciobanu
Caitlin M. Miller                                        Ciobanu Law, P.C.
                                                         Indianapolis, Indiana
Hunt, Hassler, Kondras & Miller LLP
Terre Haute, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald C. Searing,                                       April 27, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         84A05-1609-DR-2144
        v.                                               Appeal from the Vigo Superior
                                                         Court
Karen Vivas,                                             The Honorable Matthew Headley,
Appellee-Respondent.                                     Special Judge
                                                         Trial Court Cause No.
                                                         84D01-1407-DR-5999



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017              Page 1 of 21
[1]   Donald C. Searing (“Father”) appeals the trial court’s order granting primary

      physical custody of the parties’ child, C.S., to Karen Vivas (“Mother”). Father

      raises five issues which we consolidate and restate as whether the court properly

      awarded physical custody of C.S. to Mother. We affirm.


                                      Facts and Procedural History

[2]   Mother is from Manila, Philippines, Father is from Terre Haute, Indiana, and

      they met online. The parties married in the Philippines and C.S. was born in

      the Philippines on November 3, 2010, and is a citizen of both the United States

      and the Philippines. In a prior appeal, we stated the facts as follows:


              On April 9, 2014, Mother and C.S. left for a six-week vacation to
              visit family in the Philippines. The couple had been fighting
              prior to the vacation and, two days into the vacation, Father told
              Mother he wanted a divorce. Father told Mother that he would
              continue to support her until she found a job and obtained her
              own apartment but Mother refused. Mother and C.S. were
              scheduled to return in May but did not return to the United
              States until August 25, 2014 when Mother’s friends offered
              Mother and C.S. a place to live in Texas. At some point, Mother
              and C.S. moved to Michigan, where Mother worked for Meijer,
              until finally settling in California in December 2014. In the year
              following the parties’ separation, Mother travelled with C.S. to
              the Philippines, Hong Kong, Texas, Michigan, California, Las
              Vegas, and Singapore. Mother never received consent from
              Father to travel with C.S. and often did not inform him of when
              or where she traveled with C.S.


                                                    *****




      Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 2 of 21
               In November of 2014, Father saw C.S. for the first time since he
               and Mother left for the Philippines in April. Father became
               aware that Mother and C.S. were in Michigan after a Michigan
               CVS called Father regarding a prescription for C.S. Prior to
               receiving that call, Father did not know that Mother and C.S.
               had returned to the United States. That weekend, Father drove
               to Michigan and spent approximately two hours with C.S. at a
               mall under Mother’s supervision. Father had been unable to
               speak to C.S. for approximately five months prior to this visit. . .
               .


               In December of 2014, Father purchased Christmas gifts for C.S.
               and made them available for pick-up at a California Walmart
               near Mother’s residence because Mother would not provide an
               address where the gifts could be shipped. Mother later told
               Father to cancel the presents because she could not make the
               drive to the Walmart in time. After the order had been cancelled,
               Mother took C.S. to pick up the presents and told C.S. that
               Father did not get him any presents.


      Searing v. Vivas, No. 84A05-1506-DR-530, slip op. at 3-4 (Ind. Ct. App. Mar. 8,

      2016).


[3]   Meanwhile, on July 30, 2014, Father filed a petition for dissolution of marriage.

      Id. at 4. Summons was issued by international mail to Mother’s address in

      Manila but was returned indicating that Mother had not been served. Id.

      Father served Mother by publication in November of 2014. Id. The trial court

      held an initial hearing on December 11, 2014, at which Mother was not present.

      Id. At the hearing, the trial court dissolved the parties’ marriage, split the

      parties’ debts, indicated that custody could not be determined due to Mother’s



      Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 3 of 21
      absence, and ordered that Father was entitled to parenting time pursuant to the

      Indiana parenting time guidelines until custody could be determined. Id.


[4]   On January 12, 2015, Mother requested relief from the judgment and a hearing

      was set. Id. at 5. On January 30, 2015, Father requested an initial custody and

      support determination. Id. On February 20, 2015, the court held a scheduling

      hearing at which Mother was present by telephone. Id. The court set a final

      hearing for May 4, 2015, and ordered that, because “[Father] has only seen

      [C.S.] for a few hours in the last ten (10) months,” Father be permitted to Skype

      with C.S. every Saturday and that the parties arrange dates during which Father

      can fly to California to visit C.S. Id. Mother did not agree to any dates for

      Father’s visitation. Id.


[5]   On March 31, 2015, Father filed a motion for emergency hearing and a verified

      motion for restraining order as to C.S.’s passport. Id. On April 8, 2015, an

      emergency hearing was held to set dates for Father’s visitation. Id. The court

      ordered that Mother would make C.S. available for pick up on April 19, 2015,

      that Father would pick up C.S. in California on that date and return to Indiana

      with C.S., and that C.S. would stay with Father until the final hearing on May

      4th. Id.


[6]   The court held a hearing on May 4, 2015, to determine custody and settle all

      other pending issues. Id. at 6. Father submitted several exhibits into evidence

      including pay stubs, money transfer records, and over 600 text and Facebook

      messages exchanged between the parties. Id. Father submitted a transaction


      Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 4 of 21
      history of his account with a money transfer service which showed that he sent

      Mother $2,200 in April and May of 2014 while Mother and C.S. were in the

      Philippines. Id.


[7]   On May 27, 2015, the court ordered that Mother have primary physical custody

      of C.S., that the parties have joint legal custody, and that Father have parenting

      time. Id. at 17-19. On June 1, 2015, Father filed a notice of appeal.


[8]   On March 8, 2016, we issued a memorandum decision noting that Mother did

      not file an appellee’s brief and finding that the trial court’s conclusions were not

      supported by the evidence when reviewed under a prima facie standard. Id. at 2.

      Father challenged eight of ten findings of fact outlined in the trial court’s order,

      and we addressed the findings found to be dispositive including:

              8. Divorce under the best of circumstances, especially when
              children are involved, is difficult at best. Add to the mix that
              respondent is from another country, from a different culture, and
              that petitioner chose to reveal his intent to divorce by telephone
              during his wife’s vacation out of the country, and you have the
              perfect recipe for the disaster which befell this couple during the
              last twelve (12) months. While the court does not condone any
              attempt to thwart parenting time or to denigrate another parent
              in the eyes of a child, what has occurred in this case is at least
              explainable. Petitioner acknowledges as much in his regret over
              the timing of his decisions.


              9. A voluminous amount of text messaging and other internet
              communications were introduced during the hearing. A number
              of messages were filled with vitriol, pain, anger and threats. It is
              noteworthy, however, that a number of communications were
              not. Indeed, they contained communication you would not

      Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 5 of 21
              expect between two parties navigating their way through the
              initial stages of a divorce, custody and support issues. Each side
              can with equal force pick out messages in support of their own
              testimony and in opposition to the other’s.


              10. [Mother] did not deny any of the communications entered
              into evidence. She explained the regretful ones were fueled by
              anger, hurt, uncertainty and a desire to protect her son. She also
              testified that she is fully willing to comply with all court orders
              regarding custody and parenting time. The court finds these
              statements credible. Time will tell if faith in [Mother’s] word is
              justified.


      Id. at 22-23.


[9]   We held:

              We fail to see how being from a different culture in any way
              justifies or explains Mother’s attempts to thwart parenting time
              or denigrate Father to C.S. Similarly, although Father may
              regret the timing of his decision to reveal his desire to divorce
              Mother while she was in the Philippines, Mother’s resulting poor
              emotional state does not lessen the severity of her yearlong
              alienation of C.S. from Father. The trial court found that both
              Mother and Father sent accusatory messages, made regrettable
              choices, and could “with equal force” pick out evidence
              supporting their own testimony. However, a thorough review of
              the messages exchanged between the parties overwhelmingly, if
              not entirely, supports Father’s arguments regarding (1) Mother’s
              alienation of the child from Father by disparaging Father and
              preventing communication with C.S., (2) Father’s monetary
              support of Mother and C.S., (3) Mother’s repeated dishonesty to
              Father and to the trial court, (4) indications that Mother has been
              emotionally unstable, and (5) evidence that C.S.’s time with
              Mother in the past year has had a detrimental effect on C.S. both

      Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 6 of 21
                mentally and physically. Accordingly, we find that the trial
                court’s findings are unsupported by the evidence.


       Id. at 23-24.


[10]   We agreed with Father that it was in C.S.’s best interest that Father have

       primary physical custody and that the trial court’s determination to the contrary

       was clearly erroneous. Id. at 26. We noted that Mother had provided little

       stability for C.S. in the year she had custody. Id. At the time of the final

       hearing, Mother was living in California with friends. Her boyfriend, Jon,

       helped take care of C.S., helped support Mother and C.S., and, according to

       Mother, had a good relationship with C.S. Id. at 28. In discussing the mental

       and physical health of all individuals involved, we observed Mother frequently

       told C.S. information about Mother and Father’s domestic and legal issues

       which upset C.S., that C.S. developed a severe rash and blisters over a large

       area of his buttocks while in Mother’s care, that upon being returned to Father

       a year later in April 2015, Father took C.S. to the doctor where he was

       diagnosed and treated for scabies, and that C.S. had significant scarring from

       the untreated scabies. Id. at 28-29. We also observed that messages from

       Mother revealed that she had frequent and severe emotional outbursts and

       mood swings, had made threats to Father, and frequently fabricated stories. Id.

       at 30.


[11]   We observed that the trial court was making an initial custody determination

       where there is no presumption in favor of either parent. Id. at 32. We held that


       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 7 of 21
the best interest analysis overwhelmingly suggested that placement with Father

was in the best interest of the child. Id. Specifically, we stated:


        Mother has demonstrated that she is emotionally unstable, has
        provided C.S. with little consistency in his living situation, has
        threatened to leave the country with C.S. permanently to avoid
        the court’s jurisdiction, shares inappropriate personal and legal
        information with the child, and does not acknowledge the
        potential deleterious effects her actions may have on C.S[.],
        choosing instead to blame Father for C.S.’s emotional issues.
        Furthermore, Mother failed to provide adequate medical
        treatment for C.S.’s scabies for a year resulting in significant
        scarring.


                                              *****


        Although we give the trial court significant discretion in family
        law matters, there is simply a complete lack of evidence which
        suggests that Mother is better equipped to parent the child and
        that it is in the best interest of the child for Mother to have
        primary physical custody. While there is significant evidence
        that Mother’s actions have detrimentally affected C.S. and
        questions regarding her ability to provide a stable home life for
        C.S., there is no substantial evidence that would create any
        similar concerns regarding Father’s ability to care for C.S.
        Accordingly, we find that the trial court’s conclusions are clearly
        erroneous.


Id. at 32-33. We reversed the trial court’s order granting physical custody of

C.S. to Mother, ordered that Father be given physical custody of C.S., and




Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 8 of 21
       remanded for recalculation of child support obligation. 1 Id. at 33-34. The

       opinion was certified on April 18, 2016. 2


[12]   Meanwhile, on March 21, 2016, Mother filed a Verified Petition to Modify

       Custody; Request for Hearing, Verified Petition for Temporary Custody of the

       Minor Child and Proposed Order. 3 On April 13, 2016, the court granted

       Father’s motion for a change of judge.


[13]   On July 29, 2016, the court held a hearing. Father testified that he lived in a

       three-bedroom house he had recently moved to with his wife, Grace, who was

       pregnant, their youngest son, and his nine-year-old stepdaughter. He testified

       that he began working at the post office a little over a month earlier, that he

       accepted the post office position for better income than his previous job, and

       that his new position enabled him to spend more time with his children. Father

       testified that he did not believe Mother’s mental health had improved and that

       she exhibited additional unstable or overly emotional activities. Father testified

       that he had C.S. in April and May, that C.S. had been visiting with Mother for

       summer visitation, and that the day of the hearing was supposed to be the last

       day of that visitation. He testified that his attorney advised him at some point




       1
        Judge Baker dissented and stated that our standard of review compels us to affirm because sufficient
       evidence and inferences supported the trial court’s order. Searing, slip op. at 35-37.
       2
        The record does not reveal that the trial court ever entered an order granting physical custody of C.S. to
       Father.
       3
           The record does not contain a copy of this petition.


       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017              Page 9 of 21
       that he had primary physical custody going back to March 8th when this Court

       issued its opinion.


[14]   Mother testified that she lived in a one-bedroom condo in California, was

       looking for a larger home, but did not have a move-out date yet. She also

       testified that she married Joe Thomas the previous Sunday, that she had been in

       a relationship with him for fourteen months, and that she could now provide

       insurance for C.S. She also testified that C.S. did not go to Indiana for winter

       parenting time because she could not afford the plane ticket to send him. She

       stated that she was supposed to pick C.S. up on April 5, 2016, following

       parenting time in Indiana, but C.S. did not return until the end of May. Father

       testified that his attorneys informed Mother’s attorneys that he was keeping

       C.S. based upon this Court’s decision, and that he deducted $500 from the

       amount Mother owed him based upon the nonrefundable airline ticket Mother

       had purchased for April 5, 2016.


[15]   On September 2, 2016, the court entered an order awarding physical custody of

       C.S. to Mother. The order states in part:

               After the May, 2015 Trial Court Order, [Father] properly
               appealed the decision, and on March 8, 2016, the Court of
               Appeals issued its decision, reversing the Trial Court’s decision.
               Mother immediately filed for a change of judge and a petition for
               modification of custody – even before the Appellate Court’s time




       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 10 of 21
        for certification had run.[ 4] Thereafter, [Father] has custody of
        the child for a short period of time (early April – late May, 2016),
        and then [Mother] exercised extended parenting time over the
        summer. All this is gleamed [sic] from the Trial Court’s Order,
        the Chronological Case Summary, and the Court of Appeal’s
        [sic] decision and this judge’s temporary summer order.


        There were some motions and argument filed regarding at what
        point in time this Court could hear evidence from – was it the
        original Trial Court’s Order date forward, or the Court of
        Appeal’s [sic] Order date forward. It appears to this Special
        Judge that it must consider evidence since the original Trial
        Court’s decision. Otherwise, a full (almost) year of what was
        going on in the child’s life would be “lost”. Logically, if
        something significant happened after the Trial Court’s decision,
        but before the Appellate Court’s decision (jail, molestation, new
        job, re-marriage, mental health commitment, etc.) then the full
        facts and the full “picture” would not be available. As such,
        Court is going to consider all the evidence since the Trial Court’s
        May, 2015 decision.


        Facts:


        Since that time, both parents and their lives have changed.


        1. Residence:


        a) Father has moved within the Terre Haute area. Father’s
        home is now near a railroad track and the reason for moving is




4
 The chronological case summary indicates that Father’s counsel filed a Motion for Change of Venue from
Judge on March 14, 2016.

Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017       Page 11 of 21
           for a larger house to accommodate their growing family.


           b) Mother has moved within the Huntington Beach, Southern
           California area. Mother and her new husband live in his one
           bedroom condo, but are looking for a larger space.


           2. Job:


           a) Father now works for the Post Office.


           b) Mother has a new job.


           3. Family:


           a) Father’s family consists of himself, his wife, his wife’s 9 year
           old son,[ 5] their 2 year old son, their to-be-born[-]anytime child,
           and [C.S.].


           b) Mother’s family consists of herself, her new husband Joe, and
           [C.S.].


           4. Schooling:


           a) Father has not had the child enrolled in schooling since he
           assumed custody. He has the child enrolled in daycare, with a
           family friend – who does not hold a daycare license.


           b) Mother had the child in a pre-school, what California calls a
           “preppy school”. His teacher, Tara Holmes, testified that [C.S.]



5
    Father testified that C.S. has a nine-year-old stepsister.


Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 12 of 21
        was well behaved, well liked, and happy at school.


        5. Spouses:


        a) Father’s wife was unable to testify as she was on bed rest with
        her impending birth of their child.


        b) Mother and her spouse, Joe Thomas, were married shortly
        before this trial. They have known each other since July 4, 2015.
        He is a branch manager at a bank in California. He has health
        insurance available for [Mother] and [C.S.] via his employer. His
        family is from the Huntington Beach area, and many still remain
        in that area. Joe has played a significant role with [C.S.]’s needs.


        6. Spring Break, 2016:


        Father had parenting time of the child for this event in Terre
        Haute. At the conclusion of this, [Mother] was to fly out and
        pick up the child, and was actually at the airport about to leave
        when she learned from her attorney that she would not be getting
        the child – due to the Court of Appeals’ decision. Father did not
        call or notify [Mother] of this. Father admits, in retrospect, that
        he handled this poorly. Mother was “out” approximately
        $500.00 for the plane ticket due to this.


        There were a series of text messages around March 21, 2016 in
        which [Father] was not completely forthcoming about his intent
        with the return of the child.


        7. Telephone Calls:


        Mother is from the Philippines, and English is her second
        language. Her spoken English was, at times, difficult to
        understand. Mother and [Father] had a telephone conversation
Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 13 of 21
        which was played for the Court (see Exhibit 16). Clearly,
        [Mother] was quite distraught about the whole custodial
        situation.


        8. Text Messages:


        Approximately 100 pages of text messages were introduced by
        [Father] at trial. In [Mother’s] text messages, one can observe
        that her text is similar to listening to a person who has English as
        a second language. The text in Exhibit 14, for instance, shows
        the difficult relationship between [Mother] and step-mother. It
        was suppose [sic] to be about the child’s medical insurance
        coverage, but turned into a discussion of [Mother] calling step-
        mother names, to step-mother bringing [Mother’s] nationality
        into the discussion, and [Mother’s] discontent that
        Grace/[Father’s] relationship was the cause of
        [Mother]/[Father’s] marriage break-up.


        Other text messages (Exhibit 10) (Exhibit 13) involve disputes
        about payment/non-payment of child support, and other related
        disagreements (car loan).


        Exhibit 28 details that [Mother] is getting married to Joe and that
        she didn’t tell [Father] that the wedding is interfering with
        [Father’s] skype time with [C.S.]. In another text, [Father] taunts
        [Mother] about [Mother] not being able to move the case to
        California.


                                              *****


        Conclusion:


        There has been a substantial change for the child, and [Father’s]
        family, and [Mother’s] family. Mother has stabilized after

Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 14 of 21
        moving to the United States, moving to California (getting stable
        housing and a job) getting married to a man who she dated for
        approximately one year (who was significantly involved in the
        child’s life), steady income, obtained schooling for the child, got
        him to his doctor/dentist appointments – in short did what she
        should do.


        Father’s life, too, has changed. He is going to have a newborn, a
        new job, a new house. Father’s focus was more on what
        [Mother] has done wrong then [sic] what he actually does with,
        and for, the child.


        Here, both parents want custody of the child (obviously) and as
        [Father] put it, the child would like to be with both [Mother] and
        [Father] – which just can’t happen. Joe is quite involved with the
        child, as is Joe’s family – even before the marriage to [Mother].
        The child has obviously adjusted well to his school/school
        friends in California. Mother appears to be much more stable
        than before. She was basically homeless, jobless, and on her
        own. Father wasn’t paying support regularly, which is significant
        for [Mother] at that time. Mother has secured housing, a new
        husband, and a new job – in short, a new life. She has always
        provided for the child, getting him enrolled in school, going to
        doctors’ appointments, and taking him for play[.]


        Court concludes that it is in the best interest of the child for
        physical custody of the child to be with [Mother] when
        considering the factors in I.C. 31-17-2-8 and 31-17-2-21. Father
        should have extended parenting time with the child. Parties are
        to share equally for [C.S.]’s cost of flying. Father should have
        Skye [sic] opportunities with the child each Wednesday and
        Sunday – 6:00 p.m. California time, if the parties can not agree to
        a time.


        Parties are to submit a Child Support Obligation Worksheet

Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 15 of 21
               based on their current incomes, and any child support arrearage
               calculations (and how to cure said arrearage if there is some)
               within 30 days of this Order.


               Mother shall not take the child out of the country. Passports are
               to be held by [Father].


               Transfer of the child to [Mother] should occur in approximately
               three (3) weeks from the date of this Order, to get the best flight
               rate – the weekend of September 23rd.


       Appellant’s Appendix II at 15-22.


                                                    Discussion

[16]   The issue is whether the trial court abused its discretion in granting Mother’s

       petition to modify custody. Father points out that C.S. was with him for only

       seven weeks as primary physical custodian and there was no meaningful basis

       upon which to determine whether the existing arrangement was in C.S.’s best

       interest or should be modified. He asserts that while changes in circumstances

       in Mother’s household may be considered in a best interest analysis, they

       cannot, standing alone, form the basis of a finding of a substantial change in

       circumstances necessary to warrant modification of a custody order.


[17]   Father further argues that the changes the trial court identified in his household

       do not justify a modification of custody, and that the trial court failed to

       consider evidence of Mother’s continuation of conduct that this Court discussed

       and disapproved just five months previously. He asserts that the court

       erroneously stated that his wife brought Mother’s nationality into the discussion

       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 16 of 21
       and that he taunted Mother about not being able to transfer the case to

       California, and that it erred in finding that Mother appeared to be more stable

       than before. Father also argues that the standard the court erroneously applied

       was one for initial custody.


[18]   Mother contends that Father is asking this Court to reweigh the evidence and

       judge the credibility of witnesses. She argues that the trial court considered the

       fact that C.S. spent the majority of his life in Mother’s care and custody, that

       C.S. was intertwined in the Huntington Beach community via his participation

       in the Preppie K school, and that C.S. has strong ties to his stepfather’s

       extended family.


[19]   We review custody modifications for an abuse of discretion and have a

       “preference for granting latitude and deference to our trial judges in family law

       matters.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). “We set aside

       judgments only when they are clearly erroneous, and will not substitute our

       own judgment if any evidence or legitimate inferences support the trial court’s

       judgment.” Id. The Indiana Supreme Court explained the reason for this

       deference in Kirk:


               While we are not able to say the trial judge could not have found
               otherwise than he did upon the evidence introduced below, this
               Court as a court of review has heretofore held by a long line of
               decisions that we 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, or that he should

       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 17 of 21
               have found its preponderance or the inferences therefrom to be
               different from what he did.


       Id. (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)).

       See also Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). Therefore, “[o]n

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

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

       there is a basis for reversal.” Steele-Giri, 51 N.E.3d at 129 (quoting Kirk, 770

       N.E.2d at 307). 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,

       770 N.E.2d at 307. We may neither reweigh the evidence nor judge the

       credibility of the witnesses. Fields v. Fields, 749 N.E.2d 100, 108 (Ind. Ct. App.

       2001), trans. denied.


[20]   The trial court’s findings were entered pursuant to Ind. Trial Rule 52(A) which

       prohibits a reviewing court on appeal from setting aside the trial court’s

       judgment “unless clearly erroneous.” Dunson v. Dunson, 769 N.E.2d 1120, 1123

       (Ind. 2002). When reviewing the trial court’s findings of fact and conclusions

       thereon, we consider whether the evidence supports the findings and whether

       the findings support the judgment. Yanoff v. Muncy, 688 N.E.2d 1259, 1262

       (Ind. 1997). Findings are clearly erroneous only when the record contains no

       facts to support them either directly or by inference. Id. A judgment is clearly

       erroneous if it applies the wrong legal standard to properly found facts. Id. In

       order to determine that a finding or conclusion is clearly erroneous, our review

       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 18 of 21
       of the evidence must leave us with the firm conviction that a mistake has been

       made. Id.


[21]   The child custody modification statute provides that “[t]he 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 [Ind. Code § 31-17-2-8] . . . .” Ind.

       Code § 31-17-2-21. Ind. Code § 31-17-2-21(c) provides: “The court shall not

       hear evidence on a matter occurring before the last custody proceeding between

       the parties unless the matter relates to a change in the factors relating to the best

       interests of the child as described by section 8 . . . .” Ind. Code § 31-17-2-8 lists

       the following factors:

               (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


                        (C) any other person who may significantly affect the
                        child’s best interests.


       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 19 of 21
               (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.


[22]   A remarriage by itself does not constitute a change in circumstances sufficient

       to support a change in custody. Julie C. v. Andrew C., 924 N.E.2d 1249, 1257

       (Ind. Ct. App. 2010). However, when a subsequent marriage occurs in

       conjunction with other substantial changes in the factors under Ind. Code § 31-

       17-2-8, they may constitute a substantial change in circumstances. Id. (citing

       Bryant v. Bryant, 693 N.E.2d 976, 979 (Ind. Ct. App. 1998), reh’g denied, trans.

       denied).


[23]   As noted, we give substantial deference to trial court judges in family law

       matters. While the evidence might have supported denying Mother’s petition,

       such denial was not required. Based upon the court’s findings and conclusions,

       including that Mother had stabilized, married, achieved a steady income,

       acquired stable housing, obtained schooling for C.S., and taken him to his

       doctor/dentist appointments; the significant involvement of Mother’s new


       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017   Page 20 of 21
       husband in C.S.’s life; and C.S.’s adjustment to his friends and school in

       California, we cannot say, that the court abused its discretion in determining

       that Mother demonstrated that a custody modification is in the best interests of

       C.S. and that there was a substantial change in one of the necessary factors. See

       Walker v. Nelson, 911 N.E.2d 124, 129 (Ind. Ct. App. 2009) (holding that the

       trial court did not abuse its discretion when it modified custody and noting that,

       although any one factor may not necessarily warrant a change of custody,

       consideration of all the factors is sufficient to establish that modification is in

       the best interests of the child and a substantial change had taken place in the

       interaction and interrelationship of the child with the child’s parents,

       adjustment to his home and community, and the health of all of the individuals

       involved); Barnett v. Barnett, 447 N.E.2d 1172, 1175 (Ind. Ct. App. 1983)

       (holding that the trial court did not abuse its discretion in modifying custody

       considering a number of factors including the relative stability of the parents). 6


                                                      Conclusion

[24]   For the foregoing reasons, we affirm the trial court’s order.


[25]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       6
         We note that, while we reversed the prior award of custody to Mother, the trial court judge entering the
       second order granting Mother custody was a different trial court judge.

       Court of Appeals of Indiana | Memorandum Decision 84A05-1609-DR-2144 | April 27, 2017            Page 21 of 21
