Pursuant to Ind. Appellate Rule 65(D),

                                                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
                                                                   Aug 30 2012, 9:24 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                          CLERK
                                                                        of the supreme court,
                                                                        court of appeals and
                                                                               tax court




ATTORNEY FOR APPELLANT:

WILLIAM A. GOEBEL
Goebel Law Office
Crawfordsville, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

CHRIS B. DAVIS,                                      )
                                                     )
        Appellant,                                   )
                                                     )
            vs.                                      )      No. 54A01-1201-DR-00024
                                                     )
RHONDA S. DAVIS,                                     )
                                                     )
        Appellee.                                    )


                  APPEAL FROM THE MONTGOMERY SUPERIOR COURT
                       The Honorable Harry A. Siamas, Special Judge
                             Cause No. 54D02-0906-DR-118


                                          August 30, 2012

                  MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       During dissolution proceedings, Rhonda Davis (“Mother”) and Chris Davis

(“Father”) agreed to share joint legal custody with Mother having primary physical

custody of their minor children. Father subsequently filed a Petition to Modify Custody

alleging substantial changes in the statutory factors enumerated in Indiana Code section

31-17-2-21 and that modification was in the children’s best interests. The Montgomery

Superior Court denied Father’s petition, and Father appeals.

       We affirm.

                              Facts and Procedural History

       Mother and Father have two minor children: C.D., who was born in 2001, and

R.D., who was born in 2005. In 2010, the parties’ marriage was dissolved after the trial

court approved their settlement agreement and proposed dissolution decree. The parties

agreed that they would share joint legal custody of the children, but Mother would have

primary physical custody. The parties also agreed to a parenting time schedule that gave

Father more parenting time than that prescribed by the Indiana Parenting Time

Guidelines.

       Approximately six weeks after the parties’ marriage was dissolved, Mother filed a

notice of intent to relocate to Noblesville, Indiana. Father objected to the proposed

relocation and filed a petition to modify custody. The trial court denied Father’s petition

and appointed a parenting time coordinator. Both parties were ordered to report to the

coordinator for an assessment within fourteen days. Also, Mother was permitted to

relocate the children to Noblesville.



                                            2
      On July 21, 2011, Mother filed a petition to modify parenting time. In response,

Father filed a petition to modify custody. Pursuant to Father’s request, the court ordered

the parties to submit to a custody and psychological evaluation. Dr. Richard Lawlor

performed the evaluation on October 21, 2011. The parties stipulated to the admission of

his evaluation at the hearing held on December 21 and 22, 2011. At the hearing, Father

was represented by counsel, but Mother proceeded pro se.

      On December 29, 2011, the trial court issued its order denying Father’s petition to

modify custody and entered the following findings of fact:

              6. . . . The areas of major concern raised by the evidence are the
      effects of the children’s relocation to Noblesville, the constant conflict
      between the parents and the problems with parenting time that results from
      the conflict and the mental health of Mother. Father’s position distilled is
      that all issues between the parties that may impact the children are created
      by Mother’s emotional and character traits. This position is supported by
      Dr. Lawlor who found in his evaluation that Mother is passive aggressive in
      her behaviors toward Father and perhaps anyone that may have authority
      over her conduct. However, there is no indication that this is a newly
      developed trait or character flaw. In other words Mother’s character or
      emotional stability has not changed from April 6, 2010, or November 17,
      2010 to today. At least there is no evidence of a change in Mother’s
      character.
              The stress between the parties is in large part caused by the distance
      that Mother chose to move her and the children’s residence shortly after the
      dissolution decree was entered. In retrospect this move does not appear to
      have been advantageous to the children since it has resulted in endless
      litigation and arguments between the parties. However, the relocation was
      approved by the Court in its November 17, 2010 order and reaffirmed by
      the Court in its January 26, 2011 order. All of the issues that Father raises
      with the Court now: the effects of the relocation on the children, constant
      conflict between the parties, and Mother’s emotional stability and character
      were before the Court on Father’s petition to modify custody and heard in
      August and September 2010. While there have been additional events of
      parenting time problems and arguments between the parents this is nothing
      new. The parties were separated about nine months before they agreed on
      custody and parenting time. All of these issues were present and known to
                                            3
both parties before they entered into their final settlement. As has been
stated the Court in its previous order denying Father’s petition to modify
custody already reviewed and decided these issues against Father’s petition.
        The Court has considered the impact that all of this has on the
children. The evidence does not persuade the Court that the children are
having substantial difficulties in school. The evidence was not conclusive
regarding [C.D.’s] academics. Mother testified that he is on the honor roll
and Father testified that his grades have dropped. Whether [C.D] has a
long term or short term academic problem remains to be seen. The homes
of both parents are appropriate. Both parents provide the children with
appropriate care, supervision and the necessities of life. There is no
persuasive evidence that the children are suffering either emotional or
physical harm in either home. They appear to be normal children who
seem to have adjusted to their parent’s separation. The Court has
considered the incidences of [R.D.’s] flea bites and her fractured ankle and
the Court finds that the evidence does not persuade the Court that there was
any wrongdoing on the part of either parent for the cause or treatment of
these conditions.
        Dr. Lawlor observed the interaction of the children with both parents
and found that the children “seemed relaxed and comfortable with him
[Father], and the conversation was spontaneous and lighthearted.”
However, Dr. Lawlor reported that “there was less spontaneity and clearly
more tenseness as the children talked with their mother…” The Court has
considered this information along with the fact that Mother pushed Father’s
girlfriend and was not truthful about it at Dr. Lawlor’s office. This
evidence indicates that Mother is openly hostile to Father and that
sometimes she behaves inappropriately in front of the children. The
children are aware of her hostility. While the Court finds Mother’s hostility
is a primary source of the conflict between the parties, the Court does not
find that it has adversely impacted the children to a degree that a change of
custody is required at this time. However, a Court is not required to wait
until the children are harmed before a change of custody is made. The best
interest of the children is of paramount concern to a family court.
        7. This is a case where neither party is happy with the bargain that
they made in the marriage dissolution settlement. Both parties have
attempted to change the agreement commencing within days of its approval
by the Court in April 2010. For now both parties will have to live with the
agreement because the Court cannot find that since the last custody hearing
that there has been a substantial change in any of the statutory factors as
discussed supra. The Court further does not find at this point in time that it
is in the best interests of the children that the custody order is modified.



                                      4
Appellant’s App. pp. 15-17. Father now appeals. Additional facts will be provided as

necessary.

                                   Standard of Review

       As an initial matter, we note that Mother has not filed an appellee’s brief.

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

appellant establishes prima facie error. Aiken v. Stanley, 816 N.E.2d 427, 430 (Ind. Ct.

App. 2004). Prima facie means “‘at first sight, on first appearance, or on the face of it.’”

Id. (quoting Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App. 2003)).

However, this rule is not intended to benefit the appellant, but rather to relieve this court

of the burden of developing arguments on the appellee’s behalf. State v. Moriarty, 832

N.E.2d 555, 558 (Ind. Ct. App. 2005). The burden of demonstrating trial error remains

with the appellant. State v. Combs, 921 N.E.2d 846, 850 (Ind. Ct. App. 2010).

       Also, in this case, the trial court entered findings of fact sua sponte; therefore, the

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

standard applies to any issue upon which the court has not found.             Brinkmann v.

Brinkmann, 772 N.E.2d 441, 444 (Ind. Ct. App. 2002). The specific findings will not be

set aside unless they are clearly erroneous, and we will affirm the general judgment on

any legal theory supported by the evidence. Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind.

Ct. App. 1997), trans. denied. A finding is clearly erroneous when there are no facts or

inferences drawn therefrom that support it. Id. at 76–77. In reviewing the trial court’s

findings, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.



                                              5
at 77. Rather, we consider only the evidence and reasonable inferences drawn therefrom

that support the findings. Id.

                                 Discussion and Decision

       Father argues that the trial court abused its discretion when it concluded that there

was not a substantial change in one or more of the factors enumerated in Indiana Code

section 31-17-2-8, and that his proposed modification is not in the best interests of the

children. We review custody modifications for an abuse of discretion, with 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). In the initial custody determination, both parents are

presumed equally entitled to custody, but a petitioner seeking a subsequent modification

bears the burden of demonstrating that the existing custody should be altered. Id.

       When we review a trial court’s decision concerning a custody modification, we

will not reweigh the evidence or judge the credibility of the witnesses. Browell v. Bagby,

875 N.E.2d 410, 412 (Ind. Ct. App. 2007), trans. denied. Instead, we consider only the

evidence most favorable to the judgment and any reasonable inferences therefrom. Id.

Importantly, we observe that our court’s deference to the trial court’s decision to modify

custody is “a reflection, first and foremost, that the trial judge is in the best position to

judge the facts, to get a feel for the family dynamics, to get a sense of the parents and

their relationship with their children -the kind of qualities that appellate courts would be

in a difficult position to assess.” MacLafferty v. MacLafferty, 829 N.E.2d 938, 940–41

(Ind. 2005).



                                             6
       Appellate deference to the determinations of our trial court judges,
       especially in domestic relations matters, is warranted because of their
       unique, direct interactions with the parties face-to-face, often over an
       extended period of time. Thus enabled to assess credibility and character
       through both factual testimony and intuitive discernment, our trial judges
       are in a superior position to ascertain information and apply common sense,
       particularly in the determination of the best interests of the involved
       children.

Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)

       Indiana Code section 31-17-2-21 provides that a trial 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 or more of the factors that the court may consider under

Indiana Code section 31-17-2-8. Section 31-17-2-8 provides that the trial court is to

consider all relevant factors, including:

       (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.
       (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 . . .

       First, we address Father’s claim that the following finding is not supported by the

evidence:



                                             7
       Mother is passive aggressive in her behaviors toward Father and perhaps
       anyone that may have authority over her conduct. However, there is no
       indication that this is a newly developed trait or character flaw. In other
       words Mother’s character or emotional stability has not changed from April
       6, 2010, or November 17, 2010 to today. At least there is no evidence of a
       change in Mother’s character.

Appellant’s App. p. 16. Father argues that the trial court had no basis to conclude that

Mother’s mental health had not changed since his petition to modify custody was filed

because the court never analyzed “Mother’s mental health until the report prepared by Dr.

Lawlor of the instant hearing”      Appellant’s Br. at 14-15.     Although there was no

professional evaluation of Mother’s emotional stability prior to the instant hearing, the

record is replete with evidence of Mother’s character and behavior toward Father both

before and after he filed his petition for modification of custody. And the trial court’s

finding that Mother’s character has not changed is supported by the evidence.

       In his evaluation, Dr. Lawlor concluded that Mother is “attempting to undermine

the children’s relationship with their father” but has not succeeded in doing so. Ex. Vol.,

Dr. Lawlor’s Report, p. 36.      Due to Mother’s hostility toward Father, her passive

aggressive behavior, and the effect that Mother’s behavior has on the children, Dr. Lawlor

“strongly recommend[ed]“ that Father “be denominated the primary physical custodian of

the children” and sole legal custodian. Id. In reaching this conclusion, Dr. Lawlor

discussed specific examples of Mother’s hostility and misbehavior, which Father also

discusses in his brief in urging our court to reverse the trial court’s custody ruling. See

Appellant’s Br. at 16-19. However, “lack of cooperation or isolated acts of misconduct by

a custodial parent cannot serve as a basis for the modification of child custody.” Hanson v.


                                             8
Spolnik, 685 N.E.2d 71, 78 (Ind. Ct. App. 1997), trans. denied (citations omitted). And

contrary to Father’s claims in his brief, Mother’s hostility toward Father and evidence of

instances where her statements are less than credible does not lead to the conclusion (and

the trial court did not find) that Mother “has significant mental health problems that

cannot possibly fail to harm the children.” Appellant’s Br. at 16.

       Father also argues that the evidence presented establishes that the children are not

performing as well in school as they were prior to their move to Noblesville. There is

some evidence suggesting that C.D.’s grades have declined in the Noblesville school

system. But this decline could be attributed to many factors and the decline is not

significant enough to support a change of custody to Father. Moreover, the parties’

youngest child started her formal schooling in Noblesville.

       Finally, Father relies heavily on Dr. Lawlor’s custody evaluation to argue that the

trial court’s finding that modification of custody to Father is not in the children’s best

interests is not supported by the evidence. And we acknowledge Dr. Lawlor’s opinion

that the trial court should grant Father’s petition and name him primary physical

custodian of the children. But Father’s argument is simply a request to reweigh the

evidence, which we will not do.

       Mother has been the children’s primary caregiver since their birth.        And the

evidence supports the trial court’s finding that

       [t]he homes of both parents are appropriate. Both parents provide the
       children with appropriate care, supervision and the necessities of life.
       There is no persuasive evidence that the children are suffering either
       emotional or physical harm in either home. They appear to be normal
       children who seem to have adjusted to their parent’s separation.
                                              9
Appellant’s App. p. 16. In reaching this conclusion, the trial court had the benefit of not

only the testimony and evidence presented at the hearing, but also its in camera interview

with C.D., the parties’ ten-year old child.

        There is certainly evidence that the children have been the unfortunate witnesses

to Mother’s hostility toward Father, but as we noted above, isolated acts of misconduct

generally will not serve as a basis for the modification of child custody. It was within the

province of the trial court to weigh this evidence against the evidence presented that the

children have adjusted to their parents’ divorce and the children are well cared for by both

Mother and Father. Kirk, 770 N.E.2d at 307 (stating “on appeal it is not enough that the

evidence might support some other conclusion, but it must positively require the

conclusion contended for by the appellant before there is a basis for reversal”).

        There is certainly evidence in this case that would support Father’s petition for

modification of child custody, and if we were to stand in the shoes of the trial court, we

might reach the opposite result. But that is not our standard of review. Because there is

evidence to support the court’s findings, we defer to those factual findings and to its

judgment that modification of child custody is not in the children’s best interests.1


1
  We briefly address Father’s final argument the trial court’s order denying his petition to modify custody
should be reversed because the trial court assisted Mother who proceeded pro se. Specifically, Father
cites the court’s decision to order separation of witnesses even though neither party made such request
and the court’s overruling of Father’s hearsay objection to the admission of Mother’s exhibit 12. First,
we observe that Father does not argue, nor can we fathom how separation of the witnesses prejudiced him.
With regard to exhibit 12, the exhibit consisted of medical records from the children’s pediatrician and
prescriptions. The court admitted them over Father’s objection because Mother did not object to several
of Father’s exhibits that contained hearsay. Although the trial court should have held Mother to the same
standard as trained legal counsel, see Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans.
denied, we cannot conclude that Father was prejudiced by the court’s leniency to Mother.

                                                   10
      Affirmed.

BAILEY, J., concurs.

ROBB, C.J., dissents with separate opinion.




                                          11
                            IN THE
                  COURT OF APPEALS OF INDIANA

CHRIS B. DAVIS,                           )
                                          )
      Appellant-Petitioner,               )
                                          )
        vs.                               )        No. 54A01-1201-DR-00024
                                          )
RHONDA S. DAVIS,                          )
                                          )
      Appellee-Respondent.                )



ROBB, Chief Judge, dissenting



      I respectfully dissent from the majority’s decision affirming the trial court’s denial

of Father’s petition to modify custody.

      The trial court summarized Father’s reasons for requesting modification of

custody as issues relating to “Mother’s emotional and character traits.” Appellant’s

Appendix at 16. The trial court then found that “all of these issues were present and

known to both parties before they entered into their final settlement agreement” twenty

months previously and that “Mother’s character or emotional stability has not changed”

since that time. Id. Because the trial court “cannot find that since the last custody


                                              12
hearing that there has been a substantial change in any of the statutory factors[,]” the trial

court denied Father’s petition. Id. at 17. The majority affirms this decision, noting that

although “there is certainly evidence in this case that would support Father’s petition for

modification . . .,” there is evidence to support the trial court’s findings. Slip op. at 10.

       I note first that the majority cites our oft-repeated observation that we should defer

to trial court judges especially in domestic relations matters because they are in a superior

position to assess credibility and determine the best interest of the children due to their

“direct interactions with the parties face-to-face, often over an extended period of time.”

Id. at 7 (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)). I agree with this

statement as a general principle, but I note that the trial judge making this decision was a

special judge, appointed after the filing of Father’s petition. Thus, the trial judge, though

able to assess the parties face-to-face at this particular modification hearing, had not

previously observed the parties or their interactions and relied, as we do, on a paper

record of the proceedings to-date in making his decision. Under these circumstances, I

do not believe the trial court’s decision is entitled to any special deference.

       I accept as true the trial court’s determination that Mother’s behavior has not

changed since the initial custody agreement. But I do not believe that should preclude the

trial court from reconsidering Mother’s behavior and how it impacts the best interests of

the children. Mother’s failure to alter her behavior may in fact be the “substantial

change” that warrants modification.        In other words, that Mother’s “emotional and

character traits” were not exemplary when the custody order was put in place and have

not improved since that time may not be a “change” as we have traditionally considered
                                              13
that word, but it is certainly relevant to consider that Mother has been unwilling or unable

to improve her behavior in a way that would be beneficial to the children.

       The record is replete with instances of tension, conflict, failure to effectively

communicate, and lack of cooperation. A trained custody evaluator has for the first time

assessed the parties and their interactions with each other and with the children and

“strongly recommend[ed]” that primary physical custody of the children be given to

Father. Vol. of Ex., Report of Richard J. Lawlor, PhD, at page 36. Dr. Lawlor so

recommended because Mother presents a distorted and unreliable version of events, is

“highly passive-aggressive,” id. at page 35, and makes attempts to undermine the

children’s relationship with Father, albeit not yet successfully. In short, the evidence,

including Dr. Lawlor’s assessment, shows that parenting is a battleground for the parties,

largely because of Mother’s behavior, and that the children observe and are often drawn

into the battle.

       The trial court found that “[f]or now both parties will have to live with the

agreement because the Court cannot find that since the last custody hearing that there has

been a substantial change in any of the statutory factors . . . . The Court further does not

find at this point in time that it is in the best interests of the children that the custody

order is modified.” Appellant’s App. at 17 (emphasis in original). The trial court’s order

clearly evinces concern over the custody arrangement, and the denial of modification is

based at least in part on what I believe to be the trial court’s incorrect belief that the

issues caused by Mother’s behavior cannot be revisited because they have not gotten

worse since the parties were last in court. However, it is not necessary to wait to change
                                            14
custody until Mother’s behavior becomes more hostile or until she succeeds in

undermining the children’s relationship with Father. Given that Mother’s behavior has

not improved over the time since the dissolution and given Dr. Lawlor’s assessment, I

would hold that Father has shown a substantial change in circumstances justifying a

modification of custody.




                                         15
