MEMORANDUM DECISION
                                                                  Mar 09 2016, 8:45 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Kimberly A. Jackson                                      Julie A. Camden
Indianapolis, Indiana                                    Camden & Meridew, P.C.
                                                         Fishers, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Marriage of:                                  March 9, 2016
                                                         Court of Appeals Cause No.
Christine Toney,                                         06A05-1503-DR-121
Appellant-Petitioner,                                    Appeal from the Boone Superior
                                                         Court
        v.
                                                         The Honorable Matthew C. Kincaid,
                                                         Judge
Edward Thomas,                                           Cause No. 06D01-0910-DR-724
Appellee-Respondent.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016      Page 1 of 36
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, C.T. (Mother), appeals the trial court’s Order modifying

      physical custody of her minor child, G.T., (Child), in favor of Appellee-

      Respondent, E.T. (Father).


[2]   We affirm.


                                                   ISSUES

[3]   Mother raises four issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion in denying Mother’s motion for

      continuance;

      (2) Whether the trial court abused its discretion in admitting certain evidence;

      (3) Whether the trial court abused its discretion in admitting hearsay evidence;

      and

      (4) Whether the trial court abused its discretion by modifying Mother’s physical

      custody of the Child.


                           FACTS AND PROCEDURAL HISTORY

[4]   Mother and Father were married on September 29, 2006. On September 24,

      2007, the couple welcomed the Child. Subsequently, the parties divorced in

      January 2010, and on January 19, 2010, pursuant to a property and child

      settlement agreement (Agreement), the parties agreed that Father and Mother

      would share joint legal custody of the Child, with Mother having primary

      physical custody. Father would exercise parenting time from 6:00 p.m.

      Wednesday until 6:00 p.m. Thursday, and every other Saturday from 6:00 p.m.

      Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 2 of 36
      until 6:00 p.m. Sunday. Holiday parenting time was governed by the Indiana

      Parenting Time Guidelines (Guidelines). Additionally, parties were required to

      comply with the provisions of Indiana Code section 31-1.7-2.2-1 requiring

      notice prior to any intended move.


[5]   Both parties remarried - in September 2010, Mother married M.T., and in April

      2014, Father married E.T. In July 2011, M.T. was arrested and charged with

      domestic battery, a Class A misdemeanor, for hitting Mother. The probable

      cause affidavit indicated that the domestic violence was not an isolated incident

      and that M.T. had battered Mother on at least five prior occasions. On January

      4, 2012, M.T.’s case was dismissed but was reopened on January 27, 2012,

      under a different cause number. On October 3, 2012, the trial court conducted

      M.T.’s bench trial, finding M.T. guilty as charged. M.T. was sentenced to 180

      days in Boone County Jail, with 176 days suspended to probation. On April

      11, 2014, Mother and M.T. divorced.


[6]   On July 31, 2014, Father filed a Verified Petition to Modify Custody and Child

      Support. On February 12, 2015, the trial court held the modification hearing.

      Father introduced evidence that after the divorce was finalized, Mother moved

      five times causing the Child to be enrolled in six different schools in a span of

      five years. Father also stated that Mother had failed to consult him in the

      school changes. Additionally, each time Mother moved, Father relocated to be

      closer to the Child. Father noted that he incurred great expense with Mother’s

      relocations. With regard to parenting time, Father stated that Mother had

      significantly increased his parenting time in 2013 and 2014; however, following

      Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 3 of 36
      a disagreement in May 2014 regarding the Child’s summertime activities,

      Father voluntarily reduced his parenting time to that set forth in the Agreement.

      During the course of the hearing, Father requested primary physical and sole

      legal custody of the Child or, in the alternative, to re-affirmed joint physical and

      legal custody with the exception that the Child be enrolled in the Avon School

      District where he resided. In turn, Mother requested re-affirmance of the

      current custody arrangement with the Child remaining in the Zionsville School

      District.


[7]   Father stated that he and wife, E.T., were expecting a child and that the Child

      was excited about having a younger sister. Father indicated that unpleasant

      interactions between Mother and E.T. occurred in front of the Child, thus,

      causing distress to the Child and E.T. Additionally, Father claimed that

      Mother often sent profanity-filled texts and emails to E.T. Additionally, Father

      claimed that he was troubled by the Child wetting the bed, and expressing fear

      at night while visiting with them. The Child was not exhibiting such behavior

      at Mother’s home. Father claimed that he had approached Mother multiple

      times about enrolling the Child in counseling, but Mother was not in favor of it.

      Despite Mother’s delays, Father placed the Child in counseling sessions.

      Father stated that the counselor treated the Child for anxiety as a result of

      numerous changes occurring in Father’s life, including his marriage to E.T. and

      the birth of his second child due in May 2015.


[8]   Father also claimed that Mother abused alcohol. Specifically, Father stated

      that on one occasion, he had to make an unplanned trip to the airport to pick

      Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 4 of 36
       up the Child since Mother was too intoxicated to drive. In addition, Father

       sought to impeach Mother’s credibility by introducing testimony of M.W.,

       Mother’s college friend, to testify that Mother had confided in her about the

       domestic violence that Mother suffered during her marriage to M.T. According

       to M.W., Mother had indicated that domestic violence included M.T. hitting

       her, throwing her up against walls like a ragdoll, and sodomizing her with a sex

       toy. M.W. testified that on at least two occasions, Mother had fled to her house

       after being battered by M.T. M.W. also claimed that M.T. called the Child,

       who is biracial, derogatory racial names.


[9]    In response to Father’s allegations, Mother denied that there were multiple

       incidents of abuse by M.T. Mother admitted that she had sent foul messages to

       E.T.; however, she had apologized to E.T. for her behavior. With regard to the

       Child’s counseling, Mother indicated that she had not participated in any of the

       sessions, but had discussed the sessions with the Child. With regard to being

       intoxicated on her flight back to Indianapolis, Mother stated that she only

       drank a glass of wine on her flight, and the reason she called Father to pick up

       the Child from the airport was because she was headed home to argue with

       M.T. about getting a divorce. Mother asked the court to maintain the current

       custody arrangement with the Child remaining in the Zionsville School District.


[10]   At the close of the evidence, the trial court took the matter under advisement.

       On February 18, 2015, the trial court issued its findings of fact and conclusions

       thereon granting Father sole legal and physical custody of the Child with



       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 5 of 36
       Mother to have parenting time according to the Indiana Parenting Time

       Guidelines.


[11]   Mother now appeals. Additional information will be provided as necessary.


                                   DISCUSSION AND DECISION

                                            I. Motion to Continue

[12]   Mother first argues that the trial court abused its discretion in denying her

       motion to continue. Specifically, Mother contends that the trial court’s denial

       of her continuance request was based on Father’s non-compliance with the

       discovery of Exhibits on which he relied at the modification hearing. As such,

       Mother claims that she was subjected to unfair surprises at trial.


[13]   In resolving this issue, we initially note that the decision to grant or deny a

       motion for a continuance is within the sound discretion of the trial court.

       Litherland v. McDonnell, 796 N.E.2d 1237, 1240 (Ind. Ct. App. 2003), trans.

       denied. We will reverse the trial court only for an abuse of that discretion. Id.

       “An abuse of discretion may be found on the denial of a motion for a

       continuance when the moving party has shown good cause for granting the

       motion.” Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d

       615, 619 (Ind. Ct. App. 2006), trans. denied; see Trial Rule 53.5. A trial court

       abuses its discretion when it reaches a conclusion which is clearly against the

       logic and effect of the facts or the reasonable and probable deductions which

       may be drawn therefrom. Hess v. Hess, 679 N.E.2d 153, 154 (Ind. Ct. App.

       1997). If good cause is shown for granting the motion, denial of a continuance

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 6 of 36
       will be deemed to be an abuse of discretion. Id. No abuse of discretion will be

       found when the moving party has not shown that he was prejudiced by the

       denial. Litherland, 796 N.E.2d at 1240.


[14]   “There are no mechanical tests for deciding when a denial of a continuance is

       so arbitrary as to violate due process. The answer must be found in the

       circumstances present in every case, particularly in the reasons presented to the

       trial judge at the time the request was denied.” J.P. v. G. M., 14 N.E.3d 786,

       790 (Ind. Ct. App. 2014).


[15]   The record shows that on January 2, 2015, Mother submitted her first set of

       interrogatories and requests for production. On January 21, 2015, Father

       served his first interrogatories and requests for production on Mother. On

       February 3, 2015, Father made some responses to Mother’s requests, but failed

       to submit any exhibits that he would present at trial. On the same day, Father

       filed a motion to reduce the time Mother had to respond to his discovery

       requests. On February 6, 2015, the trial court denied Father’s motion. Because

       Father had failed to submit any exhibits, on February 10, 2015, Mother filed a

       motion to continue the modification hearing set for February 12, 2015.

       Mother’s request was denied and the matter proceeded to trial. At the




       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 7 of 36
       modification hearing, Father introduced eight Exhibits, A through H 1 (A-H).

       Mother maintains that she “endured one unfair surprise after another when

       Father introduced eight trial exhibits which he never bothered to show Mother

       prior to trial . . . .” (Appellant’s Br. p. 17). Mother argues that Father’s

       submission of Exhibits A-H was in bad faith, and “in retaliation for learning

       that he would not receive Mother’s discovery responses before the

       [modification] hearing . . . .” (Appellant’s Br. p. 18).


[16]   Mother relies on Stamper v. Hyundai Motor Co., 699 N.E.2d 678, 683, (Ind. Ct.

       App. 1998), trans. denied, holding that “[w]here there has been a failure to

       comply with discovery procedures, the trial judge is usually in the best position

       to determine the dictates of fundamental fairness and whether any resulting

       harm can be eliminated or satisfactorily alleviated. Where remedial measures

       are warranted, a continuance is usually the proper remedy, but exclusion of

       evidence may be appropriate.” While the exclusion of Father’s exhibits at trial

       may have been an appropriate remedy for Father’s discovery violation, we find

       Mother’s assertions that she was unprepared to rebut the evidence submitted by

       Father unpersuasive.




       1
        We note that Mother does not specifically challenge the admission of Exhibits E through H which were the
       Child support worksheets.

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016          Page 8 of 36
[17]   An issue at the modification hearing was the argument that Mother had moved

       constantly therefore not providing the Child with a stable home environment.

       Father introduced Exhibit A—Mother’s and M.T.’s divorce decree—stating

       that “if [Mother] doesn’t refinance the house by May [1, 2015], then the house

       is sold.” (Tr. p. 16). Father stated that he had seen a for sale sign outside

       Mother’s home, and Mother had expressed to him that she could not afford to

       refinance her home and was moving to Westfield, Indiana. Father indicated

       that move would be Mother’s sixth move in a span of five years. Mother argues

       that “had she known that Father would focus on the property division of [her]

       divorce from her second husband in this child custody matter involving her

       child from her first marriage, Mother would have collected evidence in

       response.” (Appellant’s Br. p. 19). Before admitting Exhibit A, the trial court

       stated, “I am having a hard time conceiving prejudice here. It’s her cases [sic]

       decree. She is aware of what’s in it [] I’m going to admit it over a timeliness

       objection.” (Tr. p. 15).


[18]   In her appellate brief, Mother now argues that “[f]or instance, she could have

       provided documents showing her ability to refinance her home or her uncle’s

       purchase of 1/3 of the equity of her home and payment of 1/3 of the

       mortgage.” (Appellant’s Br. p. 19). On direct examination at trial, Mother

       acknowledged that in 2014, she had articulated to Father that she could not

       afford to refinance her house and she intended to move. Mother indicated that

       she had put an offer on a house in Westfield, but the offer fell through.

       Nonetheless, Mother stated that she had no plans on moving out of her home


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 9 of 36
       since she had “a new job and so now I can afford my home.” (Tr. p. 83).

       Mother also testified that her uncle had purchased 1/3 equity of her home and

       was making mortgage payments. Here, Mother made adequate responses by

       disproving Father’s assertion that she was relocating. Accordingly, we find no

       prejudice in the trial court’s admission of Exhibit A.


[19]   With regards to Exhibit B, Father stated in his petition that Mother had

       exposed the Child to domestic violence. In summary, Exhibit B included

       M.T.’s arrest record - probable cause affidavit, charging Information, a

       subpoena ordering Mother to appear for M.T.’s trial, an order finding Mother

       in contempt for failing to appear for M.T.’s trial, a letter by Mother addressed

       to the trial court explaining her reasons for failing to appear for M.T.’s trial, and

       M.T.’s sentencing order. Exhibits C and D were Chronological Case

       Summaries (CCS) relating to M.T.’s domestic violence case against Mother.

       The trial court overruled Mother’s objections on the basis of relevance.


[20]   Mother does not dispute the domestic violence incident; however, she argues

       that she had no knowledge as to the contents of Exhibits B, C, and D, nor did

       she have an opportunity to “verify if the documents were accurate.”

       (Appellant’s Br. p. 19). As such, Mother claims that she was unable to

       adequately defend herself at the hearing. Notwithstanding her claim, Father’s

       petition requesting modification of custody put her on notice that the domestic

       violence she endured in her second marriage would arise at the modification

       hearing. Moreover, Mother was the victim of the domestic violence and was

       subpoenaed as a witness.

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 10 of 36
[21]   In addition, Mother claims that the probable cause affidavit in Exhibit B

       contained prejudicial statements. Specifically, Mother complains that the

       statement indicating that M.T. “had placed a gun in his mouth and threatened

       to shoot himself to get his way” was untrue. (Appellant’s Br. p. 20). As such,

       Mother argues that she “could have subpoena[d] witnesses in advance” to

       contradict that statement. (Appellant’s Br. p. 20). The record shows that on the

       day M.T. abused Mother, Mother’s mother, (Grandmother), was present.

       Grandmother was Mother’s witness at the modification hearing, yet Mother did

       not question her about the prejudicial statements.


[22]   Overall, we conclude that none of the reasons offered by Mother were such that

       a continuance was appropriate two days prior to trial. More significant is that

       Mother fails to specify how additional time would have enabled her to gather

       information that could not have been assembled during her general trial

       preparation. Because Mother has the burden of showing that the trial court

       abused its discretion by denying her request for a continuance, we will not

       presume prejudice where she has provided no particularized information from

       which we could conclude that she was indeed prejudiced.


                                               II. Impeachment

[23]   Next, Mother contends that Father called her to the stand for the sole purpose

       of impeaching her. Procedurally, Ind. Trial Rule 43(B) provides in relevant part

       that a party “may call an adverse party . . . and interrogate him by leading

       questions and contradict and impeach him in all respects as if he had been

       called by the adverse party.” This precept is complemented by Ind. Evidence
       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 11 of 36
       Rule 607, which states that “[t]he credibility of a witness may be attacked by

       any party, including the party calling the witness.” However, a party is not

       permitted to call a witness for the sole purpose of introducing otherwise

       inadmissible evidence under the guise of impeachment. Herron v. State, 10

       N.E.3d 552, 556 (Ind. Ct. App. 2014) (citing Appleton v. State, 740 N.E.2d 122,

       124 (Ind. 2001)).


[24]   As stated previously, Father made several claims against Mother in his petition

       to modify custody. Father called Mother to the stand to question her about her

       housing situation, the domestic violence she endured, the Child’s schooling,

       and parenting time. Prior to Mother’s objection regarding the reading into the

       record of certain text messages and emails that Mother and Father had

       exchanged, Father asked Mother if she remembered texting Father that she was

       moving out of her home in 2014, and Mother answered in the affirmative.

       Father then questioned Mother if she had deprived Father of contact with the

       Child while she was in her custody. Mother stated that she could not recall

       ever doing so. Father sought to impeach Mother by introducing text messages

       to impeach Mother’s testimony. At that point, Mother’s counsel objected by

       stating that the text messages were not part of discovery. In response, Father’s

       counsel stated “I am just asking to impeach your client. She is [in] . . .

       possession of the same texts and emails that my client is.” (Tr. p. 102). The

       trial court then overruled Mother’s objection. Mother relies on this exchange to

       support the argument that she was called merely to be impeached. We

       disagree.


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 12 of 36
[25]   Mother indicated that she could not recall denying Father parenting time, and

       Father sought to refresh her memory by showing her the text messages. Mother

       then acknowledged that she had on more than one occasion denied Father

       contact with the Child. Accordingly, Mother’s assertion that Father called her

       to the stand for the sole purpose of impeaching her is inaccurate and not

       supported by the record. We therefore conclude that the trial court did not

       abuse its discretion by allowing Father to impeach Mother with the text

       messages.


                                                  III. Hearsay


[26]   Also, Mother asserts that the trial court abused its discretion by admitting

       certain hearsay statements. Hearsay is a statement, other than one made by the

       declarant while testifying at the trial or hearing, offered in evidence to prove the

       truth of the matter asserted. Ind. Evidence Rule 801(c). Generally, hearsay is

       not admissible. Evid. R. 802. “Whether a statement is hearsay . . . will most

       often hinge on the purpose for which it is offered.” Blount v. State, 22 N.E.3d

       559, 565 (Ind. 2014). In this regard, “[o]ut-of court statements that are offered

       for a purpose other than to prove the truth of the matter stated are not hearsay.”

       Patton v. State, 725 N.E.2d 462, 464 (Ind. Ct. App. 2000).


[27]   Even when hearsay evidence is improperly admitted, reversal may not be

       predicated upon this erroneous admission of evidence unless the admission is

       inconsistent with substantial justice. See Weinberger v. Boyer, 956 N.E.2d 1095,

       1104 (Ind. Ct. App. 2011), trans. denied. Therefore, the improper admission of


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 13 of 36
       evidence is harmless error when the judgment is supported by substantial

       independent evidence to satisfy the reviewing court that there is no substantial

       likelihood that the questioned evidence contributed to the judgement. D.W.S. v.

       L.D.S., 654 N.E.2d 1170, 1173 (Ind. Ct. App. 1995). When a case is tried to the

       bench, we presume that the court ignored inadmissible evidence in reaching its

       judgment. Estate of Fowler v. Perry, 681 N.E.2d 739, 744 n.2 (Ind. Ct. App.

       1997), trans. denied.


[28]   Mother directs us to three instances of alleged hearsay: M.W.’s testimony

       where she repeated Mother’s statements that M.T. called the Child disparaging

       names; the counselor’s testimony stating that the Child had expressed to him

       that she was anxious; and Father’s wife’s testimony as to the Child’s statements

       during an exchange. Mother maintains that the trial court abused its discretion

       in overruling her objections as these statements amounted to inadmissible

       hearsay.


[29]   During Father’s direct examination of M.W., Father questioned M.W. about

       M.T.’s abuse of Mother. At a certain point in the questioning, Father asked

       M.W. if she believed the Child “was around the abuse?” (Tr. p. 136). The

       contested exchange continues as:


               [Father]: Um, what sorts of--can you describe the abuse further
               what--what [Mother] said to you?


               [M.W.]: Um, it was a lot of verbal abuse. Um, calling her
               names, uh, using derogatory terms towards [the Child], uh –


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 14 of 36
               [Father]: Can you describe what those--what--what did [M.T.]
               call [the Child]?


               [M.W.] Racially, he called her racially derogatory terms.


               [Mother]: Objection calls for hearsay.


       (Tr. pp. 136-37). We fail to discern how the above exchange amounts to

       hearsay. Although Father invited M.W. to specifically elaborate on the abuse,

       M.W. only responded by giving descriptions about the abuse, she did not

       respond by giving a statement that could even remotely be characterized as

       hearsay.


[30]   However, after the questioning continued, Father’s counsel clearly and

       explicitly asked M.W. to elaborate as to “what names did [Mother] tell [her], if

       any, that [the Child] was called by [M.T.]” (Tr. p. 138). Even though M.W.

       responded with explicit statements, Mother’s counsel failed to lodge an

       objection. Accordingly, in so far Mother now contests the admissibility of this

       statement, her argument is waived. See M.S. v. C.S., 938 N.E.2d 278, 285 (Ind.

       Ct. App. 2010) (a party waives appellate review of an issue or argument unless

       the party raised that issue or argument before the trial court).


[31]   Next, Mother disputes the trial court’s ruling during the counselor’s testimony.

       During the testimony, Father asked the counselor “what have you been seeing

       [the Child] for?” The counselor responded “Um, for, um, adjusting to her

       parent’s being divorced and she’s expressed that being anxious and sometimes--

       ” (Tr. pp. 145-46). Mother objected on hearsay grounds. The trial court
       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 15 of 36
       overruled, noting “[h]e hasn’t offered any out of court statements. Overruled.

       Go Ahead. You are seeing her because she is anxious is what you said, right.”

       (Tr. p. 146).


[32]   Even if we agree that the counselor made a possible hearsay statement by

       recounting the Child’s answers to him, we are mindful that this case was tried

       to the trial judge and not to a jury. As we noted, when a case is tried to the

       bench, we presume that the court ignored inadmissible evidence in reaching its

       judgment. Estate of Fowler, 681 N.E.2d at 743 n.2. This is exactly what the trial

       court did in the instant cause. Instead of going through a lengthy questioning to

       reach the same result that the Child was treated for anxiety, after sustaining the

       objection the trial court rephrased the counselor’s answer without the presumed

       hearsay statement.


[33]   Lastly, Mother argues that the trial court abused its discretion in admitting

       E.T.’s testimony recalling an incident from December of 2014. Specifically,

       E.T. and Father dropped off the Child at a local Starbucks so the Child could

       visit with Mother. E.T. stated that she and Father walked the Child over to

       Mother’s car, and in the presence of the Child, Mother told Father, “tell your

       fat cow of a wife to stay in the car[,] she is not welcome by my car. . . . [the

       Child] heard that and [the Child] got into the car and [] I walked back to my

       car.” (Tr. p. 157). E.T. further testified that the Child “would bring it up the

       next time she saw me and ask if [] I was okay. . . .” (Tr. p. 157). At that point,

       Mother’s counsel made a hearsay objection. Before Father’s counsel could

       respond, the trial court overruled that objection on the ground that E.T.’s

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 16 of 36
       testimony was “not offered for the truth of the matter asserted.” (Tr. p. 158).

       Mother now posits that the “evidence was highly prejudicial to Mother because

       it was the only evidence showing [that the Child] actually heard disagreements

       between Mother, Father and [E.T.] during exchanges.” (Appellant’s Br. p. 24).

       We disagree. The question triggering the objectionable statement focused on

       how many times E.T. had met Mother and what her experience was. In her

       response, E.T. described the pick-up and how Mother behaved. We agree with

       the trial court that the statement was not being offered to prove that the Child

       heard the argument between Mother, Father and E.T., but rather to establish

       the nature of E.T.’s interactions with Mother. Accordingly, we find no error

       and affirm the trial court.


                                        IV. Modification of Custody

                                            A. Standard of Review


[34]   In this case, the trial court entered findings of fact and conclusions thereon in its

       Order granting Father primary physical and legal custody of the Child.

       Pursuant to Indiana Trial Rule 52(A), our court will “not set aside the findings

       or judgment unless clearly erroneous, and due regard shall be given to the

       opportunity of the trial court to judge the credibility of witnesses.” D.C. v.

       J.A.C., 977 N.E.2d 951, 953 (Ind. 2012). Where, as here, the trial court entered

       such findings and conclusions sua sponte, the specific findings control only as to

       the issues they cover, and while a general judgment standard applies to any

       issue upon which the trial court has not found, we may affirm a general


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 17 of 36
       judgment on any theory supported by the evidence adduced at trial. Sexton v.

       Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.


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

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

       Swadner, 897 N.E.2d 966, 971 (Ind. Ct. App. 2008) (quoting In re Marriage of

       Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). “[A]ppellate courts ‘are in a poor

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

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

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

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

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

       concern that there be finality in matters concerning child custody. Baxendale v.

       Raich, 878 N.E.2d 1252, 1258 (Ind. 2008). “Modification of custody is an area

       committed to the sound discretion of the trial court, and we are constrained to

       neither reweigh evidence nor judge the credibility of witnesses.” Jarrell v. Jarrell,

       5 N.E.3d 1186, 1190 (Ind. Ct. App. 2014), trans. denied.


                                              B. Findings of Fact

[36]   Prior to turning to the main issue - whether the trial court abused its discretion

       by awarding Father primary physical and legal custody of the Child - we

       address Mother’s contention that several of the trial court’s sua sponte findings

       are not supported by the evidence and therefore are clearly erroneous and

       should be set aside.


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 18 of 36
                       1. Findings relating to M.T. and the Domestic Violence

[37]   Mother contests the following findings relating to M.T.:

               12. Notwithstanding the divorce, Father has been to Mother’s
               residence and observed [M.T.] present after the divorce. Mother told
               the Court that [M.T.] is better and that he does in fact visit the home.
               That [M.T.] “is better” is supported by nothing other than Mother’s
               self-serving testimony which the Court discounts. That [M.T.]
               continues to visit the home even after a criminal case, a conviction and
               a divorce is a true fact.

               ****
               15. Mother testified that M.T. committed a single incident of domestic
               violence upon her. The Court does not believe her.

               16. Additionally, it appears to the Court more likely than not that
               Mother’s now ex-husband has made racial slurs about [the Child] and
               her father. Father and Mother appear to the court to be of mixed
               racial background.

               17. Mother did not call M.T. as a witness.

               ****
               25. A friend of Mother’s from college, a person she had kept in close
               contact during periods of her relationship with [M.T.] was called to
               testify and she testified that Mother confessed to her several instances
               of abuse inflicted upon her by [M.T.]. The court found this witness to
               be credible. She appeared to be truthful and the court discerns no bias
               or interest which would tend to cause her to be untruthful. Her
               testimony of what Mother told her that [M.T.] did to her and the
               things he said—party opponent admission—were sad and disturbing.

               ****
               46. The impact of domestic violence in this question is difficult.
               Mother was the victim. She is not the party who inflicted the domestic
               violence. She should not be punished for having an abusive husband
               and that is not what the Court is doing.



       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 19 of 36
               47. But Mother keeps him around even now after the divorce and had
               be forced under the criminal court’s powers of contempt to testify.
               Even now she minimizes the significance of this criminal behavior.
               This relationship which she had the right to start, to stay in and pursue
               even now is harmful to [the Child]. The court cannot make her leave
               her abuser and the Court declines to judge her personal character. It is
               troublesome that [M]other would stay with a man who would express
               and presumptively think negative things about her daughter’s racial
               background.

               48. The judgment the Court will make is that the circumstances of
               abuse and abusiveness have not been in [the Child’s] best interest . . . .

               ****

               56. Returning to the unpleasant subject of [M.T.] Mother loves her
               daughter very much, but contact with [M.T.] is not in [the Child’s]
               best interest. It would, the Court finds and concludes, harm [the
               Child] emotionally to be in [M.T.’s] presence where he is at risk to
               make bigoted statements about her or her father where he is at risk to
               abuse her [M]other. If [the Child] witnesses domestic violence or
               expressions of cruelty towards her [M]other or hears her Mother’s
               erstwhile romantic partner express derogatory racial comments[,] that
               will harm [the Child]. Mother in the exercise of her parenting time,
               liberal as it is to be, shall not permit [M.T.] to be present during
               parenting time.


       (Appellant’s App. p. 6, 7, 8, 11, 13). Mother argues that the above findings

       “misstate the evidence of domestic violence and are contrary to the trial court’s

       declaration” not to punish her for being a victim of domestic violence.

       (Appellant’s Br. p. 29).


[38]   Turning to the record, although M.W. had lost contact with Mother prior to the

       custody modification hearing, M.W. recalled Mother’s narrations of “four to

       six” domestic violence incidents while Mother was married to M.T. (Tr. p.

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 20 of 36
135). M.W. refuted any contention of there being an isolated event of domestic

violence. Specifically, M.W. testified that in “two to three incidents” Mother

fled her home. (Tr. p. 136). M.W. stated that on one of those occasions,

Mother stayed in a hotel, and in the other two, Mother stayed at M.W.’s

residence. M.W. testified that all three times that Mother had fled her home,

Mother was accompanied by the Child. M.W. also recounted that on one

instance, Mother had informed her that M.T. had raped Mother. Specifically,

M.W. testified that Mother had reported to her that M.T. threw her against the

wall “like a ragdoll” and when Mother fell to floor, she pretended to be

unconscious. (Tr. p. 138). M.W. further stated that, thinking Mother was

unconscious, M.T. used a sex toy to sodomize Mother. M.W. testified that

shortly after the rape incident, Mother lied to M.W. that she was staying with a

friend, but M.W. found out that Mother and M.T. were still living together. In

addition, M.W. testified that she had observed several bruises on Mother. Also,

the trial court heard M.W.’s testimony that M.T. called the Child derogatory

racial names. Furthermore, the trial court believed Father’s testimony that

Mother continued to have M.T. around even after being convicted of domestic

violence.




Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 21 of 36
[39]   Here, the trial court found Father’s and M.W.’s testimony regarding the

       domestic violence credible and truthful. 2 We are mindful that the trial court has

       the sole discretion to determine the credibility of the witnesses. See Tompa v.

       Tompa, 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). Mother’s arguments in this

       case consist of her directing our attention to evidence that supports her position

       and attempting to discredit the evidence and witnesses relied upon by the trial

       court. This amounts to a repeated request that we reweigh the evidence and

       assess witness credibility, which we will not do. See Kirk, 770 N.E.2d at 307

       (cautioning that with respect to custody modifications, appellate courts “are in

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

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

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

       the significance of the evidence”). In the instant case, the trial court chose to

       accept M.W.’s and Father’s testimony as true. As such, we conclude that the

       above findings relating to the domestic violence were not erroneous.




       2
         Mother notes in her reply brief that Father fails to address each and every finding she challenges. She
       correctly notes that failure to respond to an issue raised by an appellant is akin to failure to file a brief, and to
       win reversal on such issue, an appellant need only establish prima facie error. Frentz v. State, 875 N.E.2d 453,
       463 n. 9 (Ind. Ct. App. 2007), trans. denied. Notwithstanding her claim, we find Father’s responses, however
       brief, sufficient to address Mother’s contentions.

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016                   Page 22 of 36
                            2. Findings Relating to Mother’s Alcohol Abuse

[40]   The trial court found that Mother had an alcohol problem. Specifically, it

       found:

               20. The reason Father had to make an unscheduled trip to the airport
               was that Mother had consumed too much alcohol to safely drive and
               there was not another driver to transport [the Child].

               21. At the hearing, Mother and Grandmother minimized the drinking
               during this instance. The Court does not believe them. It was
               Mother’s responsibility not to be in a condition which would endanger
               [the Child’s] safety as a passenger on the roads. She failed.

               ****

               24. The Court finds more likely than not, Mother has had a problem
               with alcohol over the past few years and has contributed to a
               destabilized environment at home.


       (Appellant’s App. p. 7). Mother argues that the record contains no evidence

       that she ever abused alcohol. During the custody modification hearing, Father

       testified that in 2014, he smelled alcohol on Mother’s breath during drop-off.

       On another occasion, when Father was picking up the Child from Mother’s

       house, Grandmother informed him that Mother was “passed out” in bed. (Tr.

       p. 59). Lastly, Father testified that in January of 2014, Mother, Grandmother,

       and the Child were coming back from vacation. Father indicated that he had to

       make an unscheduled trip to the airport to pick up the Child. Father testified

       that Mother and Grandmother had been drinking on the flight. Father added

       that he expressed his misgivings to Mother about drinking on the flight and

       driving home. Father stated that Mother disregarded his concerns by cussing at

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 23 of 36
       him. Also, Father indicated that Mother had disclosed to him that she was

       attending alcoholic anonymous meetings to deal with her alcohol problems.


[41]   As noted in the foregoing, appellate courts neither reweigh the evidence nor

       reassesses witness credibility, and it views evidence most favorably to the

       judgment. See D.C., 977 N.E.2d at 956-57. Here, there was ample evidence

       that Mother, at the very least, used alcohol. Accordingly, we conclude that the

       above findings are supported by the record, and Mother’s argument to the

       contrary is an impermissible invitation for us to reweigh the evidence.


                                                   3. Other Findings

[42]   Mother also challenges the following findings:

                 26. [] In general, Mother appears in her demeanor to the [C]ourt to be
                 temperamental. She appears to the [C]ourt to be prone to vitriol and
                 stridency.

                 27. Father appears to the Court to be the more balanced of the two.

                 28. That is not to say that Mother does not love [the Child]. She does.
                 Father admits freely that [the Child] loves her Mother. Father’s
                 concern to the Court and it appears well-taken is that he does not want
                 [the Child] to model her [M]other’s volatility and manner of dealing
                 with an abuser—e.g., stay with him and attempt to help him avoid a
                 conviction when he battered her. 3




       3
           Mother fails to present any argument why this finding is erroneous. Accordingly, she waives it.


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016              Page 24 of 36
         ****
         30. Stepmother appears from all the information presented to the
         [C]ourt to relate kindly to [the Child]. Stepmother also demonstrates
         good judgement when she decided to no longer travel with Father to
         pick up or drop off [the Child]. 4

         31. Father has been a very involved parent. He appears to the [C]ourt
         to be deeply concerned about [the Child’s] welfare.

         32. Mother has moved several times since the divorce. She has never
         complied with the relocation statute. Father has moved as well each
         time to be closer to [the Child] to minimize travel time to exert his
         parenting time. He also has not complied with the relocation statute.
         His failure is mitigated somewhat by the reactive nature of his moves
         and that he has attempted to locate himself closer to [the Child].
         Going forward, each party must strictly comply with the relocation
         statute.

         33. Mother’s moves have resulted in a lot of jumbling of [the Child’s]
         preschool. These moves have occurred without any consultation with
         Father or input on pre-schooling. But for two years, she attended
         Eagle Elementary in Zionsville. Whether she would be able [to]
         continue to do so after May of this year is in doubt given the situation
         with Mother’s current residence discussed infra.


(Appellant’s App. p. 8, 9, 10, 11).




4
  This finding relates to E.T. and how she dialed back her involvement during the exchanges. In her
appellate brief, Mother states, “the statement by the trial court that Father shows wisdom and good
parenting” of the Child is unsupported by the evidence. (Appellant’s Br. p. 39). We note that there is no
such statement in Finding #30, nor can Finding #30 be interpreted as Mother suggests.

Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016             Page 25 of 36
[43]   Starting with Finding #26, Mother argues that the trial court’s observation that

       Mother is prone to vitriol and stridency is not consistent with Mother’s conduct

       in the court room. Mother further argues that the only evidence that was

       presented to display her as being spiteful was through Father’s and E.T.’s

       testimony. At the modification hearing, Mother admitted that her relationship

       with E.T. for the most part was acrimonious. Mother admitted that she disliked

       E.T. even before meeting her. On the day Mother met E.T., Mother

       approached E.T., introducing herself as Father’s “bitchy ex-wife” and

       apologizing for “judging her prior to ever meeting her.” (Tr. p. 163). Also,

       Mother admitted that she sent unpleasant text messages to E.T. Lastly,

       evidence was presented that Mother acted violently during a drop-off.

       Specifically, in December of 2014, Father and E.T. were dropping off the Child

       to Mother at a Starbucks. E.T. testified that she walked the Child over to

       Mother’s car, but Mother was not pleased at seeing E.T., and in front of the

       Child, Mother informed Father to “tell your fat cow of a wife to stay in the car

       she is not welcome by my car.” (Tr. p. 157). Based on the evidence presented

       at trial, we do not consider Finding #26 to be erroneous.


[44]   Finding #27 stated that Father appeared “to be the more balanced of the two.”

       (Appellant’s App. p. 8). Mother makes an incoherent argument in relation to

       this finding. First, she interprets this finding to mean that the trial court found

       that Father was more financially stable than her. Next, Mother argues that

       E.T. disliked her and that she convinced Father to file a custody modification.

       None of her arguments make sense. Notwithstanding Mother’s arguments, we


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 26 of 36
       note that there is a correlation between Finding #26 and Finding #27. Finding

       #26 talks of Mother’s erratic behavior during exchanges. No evidence was

       offered to show that Father was hostile during exchanges, or that he was

       unfriendly toward Mother. Finding #27 states that between Mother and

       Father, Father appears to be the more balanced of the two. Similarly, we find

       no error with this finding.


[45]   As for Finding #31, Mother argues that the record contains little information

       about Father’s involvement in the Child’s life. Mother further argues that while

       Father certainly expressed concern for the Child’s welfare in the courtroom, it

       did not coincide with his “inability to meet his child support obligation for [the

       Child], his marriage to a woman who immediately became overinvolved in

       Mother’s and Father’s parenting issues, and the impending arrival of another

       child at the time when his salary was modest and he has $115,000 in student

       debt.” (Appellant’s Br. p. 40). Again, Mother fails to make a sound argument.

       The record reveals that Father was involved in the Child’s life, and this is

       established by him keeping up with his parenting time and enrolling the Child

       for counseling. Also, Father moved each time Mother moved in order to

       remain close to the Child. Based on the record, we find no error with this

       finding.


[46]   With Finding #32, the trial court found that both Father and Mother had not

       complied with the relocation statute; however, it regarded Father’s failure to

       comply with the relocation statute mitigated by the fact that Father only moved

       when Mother moved so as to be closer to the Child. Mother’s argument starts

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 27 of 36
       and ends with, “both parties are equally culpable for their non-compliance with

       the statute.” (Appellant’s Br. p. 40). She offers no further discussion how this

       finding is erroneous, and she therefore waives her argument.


[47]   Finding #33 provided that Mother’s moves resulted in the Child changing

       schools, and that Mother failed to consult Father in the school changes.

       Mother argues that she was not required to seek Father’s permission in the

       school changes. We disagree. We note that the trial court awarded Father and

       Mother joint legal custody in 2010. According to Indiana Code section 31-9-2-

       67, “joint legal custody” means that the persons awarded joint custody will

       share authority and responsibility for the major decisions concerning the child’s

       upbringing, including the child’s education, health care, and religious training.

       Therefore, Mother’s claim that she was not required to consult Father in the

       Child’s schooling is incorrect. Equally, we find no error with this finding.


                                           C. Custody Modification


[48]   Turning to Mother’s main contention, we note that we review custody

       modifications for an abuse of discretion, with a “preference for granting latitude

       and deference to our trial [courts].” Kirk, 770 N.E.2d at 307. We will find an

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

       effect of the facts and circumstances before it. Haley v. Haley, 771 N.E.2d 743,

       747 (Ind. Ct. App. 2002). We do not reweigh evidence or assess the credibility

       of witnesses, and we consider only the evidence most favorable to the trial

       court’s decision. Id. The party seeking modification bears the burden of


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 28 of 36
       proving that the existing custody order should be altered. Id. To warrant

       reversal on appeal, the evidence “must positively require the conclusion

       contended for by [the] appellant.” Bettencourt v. Ford, 822 N.E.2d 989, 997 (Ind.

       Ct. App. 2005).


[49]   In order to modify a custody order, the trial court must find that modification

       would be in the child’s best interest and that there has been a substantial change

       in circumstances since the initial custody order. Ind. Code § 31-17-2-21(a). In

       this case, the trial court concluded that it was in the Child’s best interest to

       modify custody. In determining a child’s best interest, the trial court must

       “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.

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 29 of 36
               (6) The mental and physical health of all individuals involved.

               (7) Evidence of a pattern of domestic or family violence by either
               parent.

               (8) Evidence that the child has been cared for by a [de facto]
               custodian . . .

       I. C. § 31-17-2-8.

[50]   In determining that the custody order of 2010 should be modified, the trial

       court focused on the Child having a stable environment. In this case, when

       Mother’s and Father’s marriage dissolved, they agreed that they would share

       joint legal custody, with Mother having primary custody of the Child. At the

       modification hearing, Mother testified that she wanted to continue the current

       arrangement. Father’s argument was that it was in the best interest of the Child

       that he be awarded sole legal and primary custody.


[51]   In a joint custody arrangement, the parents share the authority and

       responsibility for the major decisions concerning the child’s upbringing,

       including the child’s education, health care, and religious training. Ind. Code §

       31-9-2-67. Under such an arrangement, it is critically important that the parents

       demonstrate the ability to work together for a common purpose, i.e., the child’s

       best interests. At the modification hearing, Father presented evidence that

       Mother acted alone on matters affecting the Child. Specifically, Mother

       believed that she was not under any obligation to consult Father in their

       daughter’s change of schools. The trial court noted that Mother’s actions of

       proceeding unilaterally was disrespectful of Father’s role as a legal custodian of

       the Child. Unlike Mother, Father had displayed the ability to effectively

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 30 of 36
       communicate with Mother. Specifically, the trial court found that Father

       placed the Child’s interests first. When Father noticed behavioral changes in

       the Child when she visited with them, he consulted Mother about enrolling the

       Child for counseling. Father proceeded alone only after Mother failed to act on

       his concern.


[52]   Father testified that Mother’s many moves made the Child switch schools

       regularly, and that the Child had no linkage to any home. Father presented

       evidence that he owned a home in Avon and will not move from that home.

       Based on Mother’s track record, the trial court found that Father would more

       likely provide a stable home for the Child. Father also presented evidence that

       he was devoted to the Child’s education and wanted the Child to have some

       consistency. Although Father wanted the Child to be enrolled in the Avon

       School District, where he lived, at the hearing, Father requested the trial court

       to have the Child remain in the Zionsville School District for the remainder of

       the 2014-2015 school year, thus giving the Child some form of consistency and

       regularity.


[53]   On the issue of domestic violence, the trial court indicated that it did not wish

       to punish Mother for having an abusive husband; however, the trial court noted

       that Mother, even after divorcing M.T. in 2014, continued to have him visit her

       home. Furthermore, the trial court found it rather disturbing that Mother tried

       to diminish the significance of M.T.’s criminal behavior. At trial, Mother

       claimed that the domestic violence was an isolated incident, yet evidence was

       presented to show that M.T. had battered Mother several times. In addition,

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 31 of 36
       Mother claimed that the Child did not witness the domestic violence, but M.W.

       testified that on at least two occasions, Mother had fled her home while

       accompanied by the Child. Evidence was also presented that M.T. had called

       the Child derogatory racial names.


[54]   In addition, the record shows that there was increased vitriol and stridency

       since the last custody order. Mother testified that after the custody order in

       2010, the parties had effectively co-parented the Child. However, after Father

       remarried in 2014, her relationship with Father deteriorated rapidly. Mother

       showed animosity toward Father and E.T. by sending foul text messages.

       Mother was also hostile toward Father and E.T. at a parenting-time exchange,

       during which she abused E.T. in front of the Child. The record further shows

       that when Father filed a petition to modify custody, Mother dialed back contact

       with Father.


[55]   Mother claims that there was no evidence to indicate that the Child’s needs

       were not met under her care, and that Father’s accusations regarding her

       frequent “moves, and her alleged alcohol abuse are, at best, exaggerations and,

       at worst, falsehoods which show his inappropriate need to criticize Mother

       about her parenting.” (Appellant’s Br. p. 47). Mother’s argument, however, is

       an invitation to reweigh the evidence and judge the credibility of the witnesses,

       which we cannot do. See Haley, 771 N.E.2d at 747. The trial court saw Mother

       and Father as witnesses, observed their demeanor, and scrutinized their

       testimony as it came from the witness stand. As in Kirk, we are “in a poor

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

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 32 of 36
       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 have found its preponderance or

       the inferences therefrom to be different from what he did.” Kirk, 770 N.E.2d at

       307. Based upon all of the evidence, we cannot say that the trial court abused

       its discretion by finding that a modification was in the Child’s best interests.

       Accordingly, we conclude that the trial court did not abuse its discretion by

       granting Father’s motion to modify custody.


                                              CONCLUSION

[56]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion (1) in denying Mother’s motion for continuance, (2) in admitting

       Father’s exhibits, (3) in admitting certain evidence, and (4) in awarding Father

       sole legal and primary custody of the Child.


[57]   Affirmed.


[58]   Altice, J. concurs


[59]   Brown, J. concurs in result with separate opinion




       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 33 of 36
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       In Re: The Marriage of:                                  Court of Appeals Cause No.
                                                                06A05-1503-DR-121
       Christine Toney,
       Appellant-Petitioner,

               v.

       Edward Thomas,
       Appellee-Respondent.




       Brown, Judge, concurs in result with separate opinion.


[60]   I agree with the majority that the trial court did not abuse its discretion in

       granting Father’s motion to modify custody. I write separately regarding

       certain testimony of M.W. and E.T.


[61]   With respect to M.W.’s testimony, M.W. testified that M.T. called the Child

       racially derogatory terms, Father’s counsel asked M.W. what names Mother

       had told her the Child was called by M.T., and M.W. answered “[h]e called her

       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 34 of 36
       a mutt and used the N word also.” Transcript at 138. The majority finds that

       Mother’s counsel failed to lodge an objection and thus that Mother has waived

       her argument regarding this testimony by M.W. Waiver notwithstanding, a

       statement is not hearsay if it is a statement by a party-opponent. Ind. Evidence

       Rule 801(d)(2) (providing “a statement is not hearsay if . . . [t]he statement is

       offered against an opposing party and . . . was made by the party in an

       individual . . . capacity . . .”). The statements here attributable to Mother

       constitute statements of a party opponent. See Hughes v. State, 508 N.E.2d 1289,

       1298 (Ind. Ct. App. 1987) (noting that the alleged hearsay was offered by

       Patricia Taylor, who testified that Hughes told her that Hughes’s doctor had

       threatened to file child abuse charges against Hughes, and holding that Taylor’s

       statement, attributed to Hughes, was not inadmissible as hearsay), reh’g denied,

       trans. denied; see also Irmscher Suppliers, Inc. v. Schuler, 909 N.E.2d 1040, 1046

       (Ind. Ct. App. 2009) (finding that statements in letters reporting a company

       employee’s conclusion that windows were defective were admissible against the

       company under Ind. Evidence Rule 801(d)(2)).


[62]   With respect to the testimony of E.T. regarding the incident at Starbucks, E.T.

       testified that Mother referred to her as a “fat cow” and said she was not

       welcome in her car and then specifically testified that the Child “heard that”

       and that “any time we had a situation like that, [the Child] would bring it up

       the next time she saw me and ask if [] I was okay and be very concerned about,

       um, the situation.” Transcript at 157. In response to Mother’s argument that

       this evidence is highly prejudicial as it shows the Child heard disagreements


       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 35 of 36
       between Mother, Father, and E.T., the majority finds that “the statement was

       not being offered to prove that the Child heard the argument between Mother,

       Father and E.T., but rather to establish the nature of E.T.’s interactions with

       Mother.” Slip. op. at 17. My reading of E.T.’s testimony about the Child’s

       statements to her is that it was offered to show that the Child heard and was

       affected by Mother’s comment about E.T. Moreover, the testimony was

       elicited by Father at a custody modification hearing, and the court would

       consider the impact on the Child of placement with either parent. E.T.’s

       testimony about the Child’s statements were offered to show the effect on the

       Child and not to show the relationship or interaction between E.T. and Mother.

       Nevertheless, even if E.T.’s testimony regarding the Child’s out-of-court

       statements were prejudicial to an extent and were admitted in error, any such

       error was harmless because substantial independent evidence admitted at the

       hearing supports the court’s determination on Father’s motion to modify

       custody.


[63]   I thus concur in the result that the trial court did not abuse its discretion in

       granting Father’s motion to modify custody.




       Court of Appeals of Indiana | Memorandum Decision 06A05-1503-DR-121 | March 9, 2016   Page 36 of 36
