MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             May 22 2020, 8:31 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
Kevin J. Moser                                          Leanna K. Weissmann
Kevin Moser Law PLLC                                    Lawrenceburg, Indiana
Fort Mitchell, Kentucky


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jack Putnick,                                           May 22, 2020
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        18A-DC-2674
        v.                                              Appeal from the Switzerland
                                                        Circuit Court
Laura (Iles) Putnick,                                   The Honorable W. Gregory Coy,
Appellee-Respondent                                     Judge
                                                        Trial Court Cause No.
                                                        78C01-1709-DC-242



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020                   Page 1 of 13
                                               Case Summary
[1]   The trial court entered an order dissolving the marriage between Jack Putnick

      (Husband) and Laura (Iles) Putnick (Wife). Husband appeals the court’s

      decision to grant primary physical custody of the parties’ minor son, J.P., to

      Wife, and its order that he pay $750 of Wife’s attorney’s fees, arguing that those

      decisions were clearly erroneous and/or an abuse of discretion. We disagree

      and therefore affirm.


                                  Facts and Procedural History
[2]   Husband and Wife married in April 2004. One child, J.P., was born of the

      marriage in November 2012. The parties separated in July 2017 when Wife left

      the marital home and moved with J.P. to northern Kentucky. Husband filed a

      petition for dissolution of marriage in September 2017 that came before the trial

      court for final hearing on August 8, 2018. Thereafter, the trial court entered its

      dissolution decree with specific findings of fact that provided in relevant part as

      follows: 1


              8. Husband lives at the marital residence; the residence is located
              on property that had been in Husband’s family for some time.

              9. Husband and Wife lived at the marital residence for twelve
              years.




      1
       Where appropriate, we replace any reference to the parties’ and the minor child’s names with the
      aforementioned designations.

      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020                   Page 2 of 13
        10. Husband testified that Wife left [with J.P.] on July 3, 2017,
        and that it was several days before he found out where she was.


        11. He also testified that Wife has moved at least twice
        subsequently thereafter without notifying him of when and where
        she intended to move.

        ….

        13. Wife moved … to her current [northern Kentucky] residence
        on Banklick Street.

        14. Husband works at Autozone [making gross income of
        approximately $56,000 per year] and sets his own schedule; he
        has other store managers that can cover for him in the event he
        gains custody and would need to be away from the store.

        15. If Husband gains custody, J.P. will attend school at Rising
        Sun Elementary.

        16. Husband’s mother would also be available to care for J.P. in
        the event he needed coverage; his sister would as well.

        17. Husband does not intend to move from [the marital]
        residence in the near future and posits that J.P. would likely
        graduate from Rising Sun.

        18. As for J.P.’s best interests, Husband points to his stability,
        security, and to the fact that the home he is in now is where J.P.
        has lived since birth other than for the time of separation, and
        will continue to do so.

        19. Wife testified that where she lives now is her “forever home”
        and that it is a stable home environment for J.P.; she resides
        there with a Mr. Tomlinson who pays some of the costs of living.



Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020   Page 3 of 13
        20. Wife is disabled and receives $1245 per month due to a
        debilitating back injury.

        ….

        22. Wife has had custody of her grandson [A] since he was born;
        he and J.P. think of one another as brothers.

        23. The boys each have their own rooms and three acres to play
        on.

        ….

        26. Wife also testified that J.P. will be attending Florence
        Elementary and that it is within minutes of where she lives.

        ….

        28. As to the custody of the child, the court is required to
        consider the factors set forth in I.C. § 31-17-2-8.

        29. As to the age and sex of the child, the court finds that the
        child is five (5) years old and has resided primarily with his
        mother since the date of separation; and that she has been the
        primary caregiver for the child since birth; whereas Husband has
        been the primary wage earner for the family during that time.

        30. As to the wishes of the parents, each seeks joint legal custody
        with primary physical custody.

        31. The wishes of the child are not considered due to his tender
        age.

        32. The child’s interaction with his parents is unknown but
        based on the testimony, the court finds that each parent has an
        outstanding relationship with the child.


Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020   Page 4 of 13
              33. The child’s adjustment to the home is unknown; he is just
              starting kindergarten.

              34. All parties are in good mental health; the only physical issue
              is Wife’s disability but the court finds that to be a [nonfactor] in
              deciding custody.

              35. There has been no physical violence between the parents.


      Appealed Order at 2-3. Based on the foregoing, the trial court concluded that it

      was in J.P.’s best interests that the parties be granted joint legal custody with

      Wife having primary physical custody. Husband was granted parenting time in

      accordance with the Indiana Parenting Time Guidelines and was ordered to

      pay $129 per week in child support. Husband was further ordered to pay Wife’s

      attorney $750 in fees within sixty days of the court’s decree.


[3]   Husband filed a motion to correct error, which was deemed denied on October

      25, 2018. He filed a notice of appeal on November 9, 2018. However, the trial

      court clerk thereafter failed to timely file a notice of completion of clerk’s

      record. Because Husband never sought an order compelling such completion

      pursuant to Indiana Appellate Rule 10(F), this Court dismissed the appeal with

      prejudice on August 26, 2019. Husband filed an amended appellate motion to

      correct error on October 1, 2019, requesting that the appeal be reinstated. Our

      motions panel granted Husband’s motion and reinstated the appeal. Wife filed

      a motion to dismiss the reinstated appeal, which was subsequently denied by




      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020   Page 5 of 13
      the motions panel, and the parties proceeded to file their respective briefs

      herein. 2 We will provide additional facts as necessary.


                                         Discussion and Decision

        Section 1 – The trial court neither abused its discretion nor
      clearly erred in granting Wife primary physical custody of J.P.
[4]   Husband challenges the trial court’s physical custody determination. Our

      standard of review of initial child custody determinations is well settled.

      Determinations regarding child custody fall within the trial court’s sound

      discretion. Swadner v. Swadner, 897 N.E.2d 966, 973 (Ind. Ct. App. 2008). In

      an initial custody determination, both parents are presumed equally entitled to

      custody. Hamilton v. Hamilton, 103 N.E.3d 690, 694 (Ind. Ct. App. 2018), trans.



      2
        Wife urges us to reconsider the ruling of our motions panel and dismiss this appeal for Husband’s failure to
      timely file a motion to compel completion of the trial court clerk’s record pursuant to our appellate rules.
      Specifically, Indiana Appellate Rule 10(F) requires that, in the event the trial court clerk “fails to issue, file,
      and serve a timely Notice of Completion of Clerk’s Record,” an appellant shall seek an order from this Court
      compelling the clerk to complete the record and file such notice. Failure to do so subjects the appellant’s
      appeal to dismissal. Ind. Appellate Rule 10(F). As noted above, Husband’s appeal was originally dismissed
      due to his failure to timely file a motion to compel pursuant to Rule 10(F).
      In his amended motion to correct error, Husband provided detail regarding his communications with the trial
      court clerk, her purported backlog, and his belief that the record would be completed timely. He explained
      that his failure to seek a motion to compel when the record was not, in fact, completed, was simply due to
      inadvertence as opposed to a willful disregard of the appellate rules. Wife suggests that Husband’s claim of
      inadvertence is insufficient to justify reinstatement of his appeal. However, Wife made this argument to the
      motions panel, and the panel rejected it. See Order on Wife’s Motion to Dismiss, Cause No. 18A-DC–2674
      (Ind. Ct. App. Mar. 2, 2020). We acknowledge that the writing panel has the inherent authority to
      reconsider any decision of the motions panel while an appeal remains pending. Milbank Ins. Co. v. Indiana Ins.
      Co., 56 N.E.3d 1222, 1226 (Ind. Ct. App. 2016). But, we generally do so only where a more complete record
      reveals clear authority establishing that the motions panel ruling was in error. Id. That is not the case here.
      We do not minimize Husband’s neglect in failing to follow up with the trial court, and we agree with Wife
      that cases involving children ideally should be resolved swiftly and without delay. Still, given our long-
      standing preference for deciding cases on the merits, see id., and given that the motions panel reinstated the
      appeal and the parties have now fully briefed this case, we proceed to consider the merits of the parties’
      arguments.

      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020                          Page 6 of 13
denied. The trial court shall determine custody and enter a custody order in

accordance with the best interests of the child by considering 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, and if the evidence is sufficient, the court shall
        consider the factors described in section 8.5(b) of this chapter.


Ind. Code § 31-17-2-8. In deference to the trial court’s proximity to the issues,

we do not reweigh the evidence or determine the credibility of witnesses.

Hughes v. Rogusta, 830 N.E.2d 898, 902 (Ind. Ct. App. 2005). Instead, we

consider the evidence most favorable to the judgment, with all reasonable

inferences drawn in favor of the judgment. Id. We will affirm the trial court’s

custody determination absent an abuse of discretion. Swadner, 897 N.E.2d at

973.


Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020   Page 7 of 13
[5]   The trial court here entered specific findings of fact to support its custody

      determination. Therefore, upon review, first we determine whether the

      evidence supports the court’s findings, and second, we determine whether the

      findings support the judgment. Lechien v. Wren, 950 N.E.2d 838, 841 (Ind. Ct.

      App. 2011). We will set aside the trial court’s specific findings only if they are

      clearly erroneous, that is, when there are no facts or inferences drawn therefrom

      to support them. Id. A judgment is clearly erroneous when a review of the

      record leaves us with a firm conviction that a mistake has been made. Id.


[6]   Husband concedes that the trial court considered the required statutory factors

      in making its custody determination. Indeed, the trial court found that the

      evidence indicated that the parties each had an outstanding relationship with

      J.P. and that they were relatively equal with regard to each of the statutory

      factors. However, in determining that five-year-old J.P.’s interests would best

      be served in the primary physical custody of Wife, the court considered

      evidence that Wife had been J.P.’s primary caregiver since birth, and that Wife

      has custody of her grandson of similar age, with whom J.P. shares a sibling-like

      relationship.


[7]   Husband first complains that, in giving weight to this evidence, the court

      improperly presumed that Wife, as a mother, is better suited to have primary

      physical custody and that Husband is being punished for filling the traditional

      role of being the breadwinner during the marriage. We disagree with

      Husband’s contention that the trial court engaged in improper presumptions or

      punishment, and we remind him that, in considering child custody, trial courts

      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020   Page 8 of 13
      are “often called upon to make Solomon-like decisions in complex and sensitive

      matters.” Pawlik v. Pawlik, 823 N.E.2d 328, 329-30 (Ind. Ct. App. 2005)

      (citation omitted), trans. denied. Where, as in this case, each parent seeks sole

      primary physical custody of a child, the trial court must weigh the evidence and

      make a choice in the best interests of the child. The court did so here and

      determined that the evidence weighed in Wife’s favor. The value of the trial

      court’s close proximity to the parties and the issues in child custody cases

      cannot be overstated, see id., and we are mindful that the trial court was in a

      better position than we are to make a decision on the merits. Id. Husband

      effectively invites us to reweigh the evidence as to J.P.’s best interests, which we

      will not do. See id. (emphasizing that this Court will not reweigh evidence

      when reviewing trial court’s custody determination).


[8]   Husband further asserts that, in addition to unjustifiably favoring Wife in its

      best interests analysis, the trial court abused its discretion and clearly erred in

      failing to consider Wife’s “misconduct, interference with [Husband’s]

      relationship with [J.P.], and lack of communication” in making its custody

      determination. Appellant’s Br. at 11. However, Wife’s testimony

      unequivocally contradicted Husband’s version of events and characterization of

      her behavior (she testified Husband was fully aware that she was leaving him,

      that they communicate regularly, and that she does not interfere with the father-

      son relationship), and it was the trial court’s prerogative to weigh the evidence

      and assess credibility. Indeed, although insisting that Wife’s testimony was

      evasive and dishonest, Husband concedes that only the trial court, in observing


      Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020   Page 9 of 13
       live testimony, can capture the “nuance[s] of an exchange.” Id. at 12 n.2.

       Again, Husband effectively invites us to reweigh the evidence, and we will not.


[9]    Regarding the trial court’s findings of fact, Husband specifically challenges only

       finding number 33, that “the child’s adjustment to the home is unknown; he is

       just starting kindergarten.” Appealed Order at 3. Husband claims that this

       finding is clearly erroneous because “it is not possible to find that a child is not

       adjusted to [Husband’s] residence where he lived … for the first four or five

       years of life ….” Appellant’s Br. at 16. While perhaps not as detailed as it

       could have been, we understand this finding to simply be an acknowledgement

       by the trial court that, due to J.P.’s young age and adaptability, his adjustment

       to his former primary residence when compared to his new primary residence

       was not a factor that weighed in favor of either party. This finding is not clearly

       erroneous. Moreover, as Husband does not specifically challenge the

       remaining findings of fact, we accept them as true. McMaster v. McMaster, 681

       N.E.2d 744, 747 (Ind. Ct. App. 1997).


[10]   In sum, the evidence and reasonable inferences support the trial court’s findings

       and its ultimate conclusion that it is in J.P.’s best interests that Wife be granted

       primary physical custody, and our review of the record does not leaves us with




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020   Page 10 of 13
       a firm conviction that a mistake has been made. The trial court’s custody order

       is neither clearly erroneous nor an abuse of discretion. 3


             Section 2 – The trial court did not abuse its discretion in
                      awarding Wife $750 in attorney’s fees.
[11]   Husband also challenges the trial court’s order that he pay $750 of Wife’s

       attorney’s fees. A court may order a party to pay “a reasonable amount ... to

       the other party” for attorney’s fees associated with a dissolution action. Ind.

       Code § 31-15-10-1(a). The court has broad discretion in deciding whether to

       award attorney’s fees, and we will reverse its decision only upon a showing of

       an abuse of discretion. Whited v. Whited, 859 N.E.2d 657, 665 (Ind. 2007).

       That is to say, we will reverse such an award only if it “is clearly against the

       logic and effect of the facts and circumstances before the court.” Mason v.

       Mason, 775 N.E.2d 706, 711 (Ind. Ct. App. 2002), trans. denied (2003).


[12]   Here, Wife requested $1000 in fees and the trial court awarded $750. Husband

       suggests that the trial court did so “without justification or reasoning.”

       Appellant’s Br. at 18. First, “the trial court need not give its reasons for its

       decision to award attorney’s fees.” Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind.



       3
         Husband briefly suggests that, aside from the physical custody issue, an order of joint legal custody is not in
       J.P.’s best interests due to Wife’s alleged failures to effectively communicate with Husband. We note that the
       parties specifically requested joint legal custody, and it is well settled that a trial court shall consider it a
       matter of primary importance that the persons awarded joint custody have agreed to an award of joint legal
       custody. Julie C. v. Andrew C., 924 N.E.2d 1249, 1259 (Ind. Ct. App. 2010). Besides, we will reverse an
       award of joint legal custody only when the evidence indicates “a clear abuse of trial court discretion in that
       the joint custody award constitutes an imposition of an intolerable situation upon two persons who have
       made child rearing a battleground.” Swadner, 897 N.E.2d at 974 (citation omitted). The evidence reflects no
       such imposition here.

       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020                       Page 11 of 13
       Ct. App. 2012), trans. denied. “In determining whether to award attorney’s fees

       in a dissolution proceeding, trial courts should consider the parties’ resources,

       their economic condition, their ability to engage in gainful employment and

       earn income, and other factors bearing on the reasonableness of the award.”

       Eads v. Eads, 114 N.E.3d 868, 879 (Ind. Ct. App. 2018). The trial court here

       specifically considered the parties’ respective abilities to engage in gainful

       employment and earn income and found that Husband earns more than

       $50,000 per year in income, while Wife is unable to work and collects only

       $1245 per month in disability. This evidence of the parties’ economic condition

       and their respective abilities to engage in gainful employment more than

       justifies the trial court’s decision to award Wife a portion of her attorney’s fees.


[13]   Husband maintains that the trial court abused its discretion in again failing to

       consider Wife’s alleged misconduct (“abscond[ing]” with J.P., “concealing” his

       whereabouts, and now “ransoming” him) in awarding fees. Appellant’s Br. at

       19-20. Husband is correct that any misconduct on the part of a party that

       directly results in the other party incurring additional fees may be taken into

       consideration. See Bessolo, 966 N.E.2d at 733. However, as discussed above, the

       trial court clearly did not agree with Husband’s characterization of Wife’s

       behavior, and we will not reweigh the evidence or reassess witness credibility

       on this issue. We find no abuse of discretion. The judgment of the trial court is

       affirmed in all respects.




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020   Page 12 of 13
[14]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DC-2674 | May 22, 2020   Page 13 of 13
