MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Mar 13 2020, 11:36 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Allison L. Martinez Wheeler                              Ryan M. Spahr
Wheeler Law Firm, LLC                                    Spahr Law Office, LLC
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of                        March 13, 2020
A.G. (Minor Child):                                      Court of Appeals Case No.
                                                         19A-JP-2304
                                                         Appeal from the Hendricks Circuit
A.H. (Mother),                                           Court
Appellant,                                               The Honorable Daniel F. Zielinski,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         32C01-1106-JP-62
J.G. (Father),
Appellee.



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020                Page 1 of 14
                                             Case Summary
[1]   A.H. (“Mother”) challenges the modification of physical custody of her

      youngest child, A.G. (“Child”), to Child’s father, J.G. (“Father”).1 We affirm.



                                                      Issues
[2]   Mother presents two issues for review:


               I.       Whether an interim order denied her due process; and


               II.      Whether the custody modification order is an abuse of the
                        trial court’s discretion.


                              Facts and Procedural History
[3]   Child was born in 2011, and Mother and Father executed a paternity agreement

      providing that they would share legal custody and Mother would have primary

      physical custody of Child. Father regularly exercised parenting time,

      commencing overnight visits after Child’s infancy. Father and Mother also

      began cohabitating in 2017, at a residence owned by Father, but they separated

      in 2018.




      1
       Child has three older half-siblings. Mother has her two older children in her physical and legal custody.
      Father’s elder child lives with Father and Father’s mother, without a court order for that custodial
      arrangement.

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020                    Page 2 of 14
[4]   On June 1, 2018, Father filed an Emergency Verified Petition for Modification

      of Custody. Additionally, he filed an objection to Mother’s relocation with

      Child to Martinsville, Indiana, a distance of twenty-five miles from Father’s

      residence. A Guardian Ad Litem (“GAL”) was appointed to represent Child.

      On July 30, 2018, the trial court conducted a telephonic status conference and

      the parents agreed that Child would continue to attend Mill Creek School, in

      Father’s residential district.


[5]   On August 14, 2018, the GAL filed her first report. The GAL opined that the

      parents were able to cooperatively co-parent (despite some conflict and room

      for improvement), and the GAL would have been inclined to recommend equal

      parenting time, had there not been a relocation concern. She observed that the

      parents had recently ended their cohabitation, and Mother had experienced

      “recent residential instability and current financial instability.” (App. Vol. II,

      pg. 34.) The GAL concluded,


              Ultimately, this case is very difficult to determine whether or not
              [Child] should be in Mother or Father’s primary physical custody
              given the distance between their homes. If pressed, GAL has
              enough hesitation regarding Mother’s residential and financial
              stability and moving [Child] to yet another school that GAL
              would likely recommend [Child] be in Father’s primary physical
              custody and attend school in Mill Creek, where he is already
              familiar with the school from past attendance. However, the
              Court may see this matter otherwise once the facts are presented
              at hearing, and therefore, GAL has provided recommendations
              for parenting time in both scenarios.




      Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 3 of 14
      Id. at 34-35. Shortly thereafter, Mother married, and she and her spouse

      purchased a residence in the Martinsville school district.


[6]   On February 8, 2019, the GAL filed an updated report. She noted that Child

      had experienced behavioral problems at Mill Creek, as he had done in his prior

      school. She reiterated her opinion that Child needed a psychological evaluation

      and counseling, and again expressed difficulty with making a firm

      recommendation as to custody. She concluded with the language: “GAL

      believes the Court should adopt the parenting time schedule recommended

      under Paragraph #3 of the August 2018 recommendations to close the 2018-

      2019 school year so that [Child] can hopefully feel less ‘stuck’ in the middle for

      the remainder of this school year.” Id. at 39. A custody modification hearing

      was scheduled for February 13, 2019.


[7]   On February 11, 2019, Mother filed a motion for a continuance of the hearing.

      In support of the motion, she stated that: (1) Mother and Father had agreed

      with the GAL recommendation that Child complete his school year at Mill

      Creek; (2) they had agreed with the recommendation that Child complete

      school-based counseling through the Hamilton Center; and (3) “holding a

      modification hearing seems unnecessary at this time since the parties have

      agreed to keep the minor child in the recommended school for the remainder of

      the 2018-2019 school year, and that the minor child should be evaluated

      through the school; and therefore, [Mother] requests that the modification

      hearing be reset at the end of the 2018-2019 school year.” Id. at 45-46. On the



      Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 4 of 14
       following day, the trial court granted Mother’s motion and set the matter for a

       hearing to be held on May 29, 2019.


[8]    Having not yet received notice of the trial court’s action, Father filed his

       objection to the motion for a continuance. According to Father, the parenting

       time schedule designating Father as the noncustodial parent was not sustainable

       until the end of the school year, given the distance between the parties. He

       asked that, if the court granted Mother’s motion for a continuance, it also adopt

       Paragraph 3 of the GAL’s report.


[9]    After reviewing Father’s objection, the trial court issued a February 12, 2019

       order that was entered into the Chronological Case Summary (“CCS”),

       directing the parents to comply with Paragraph 3 of the GAL report. The

       practical effect of this action was that, during the school year, Mother had

       parenting time with Child one overnight per week and alternate weekends.


[10]   On March 22, 2019, Mother filed a pro-se Motion for an Emergency Hearing.

       She advised the trial court that Child was suffering emotional harm in his

       current school placement and that her former attorney had requested the

       continuance against Mother’s wishes. The trial court ordered the parties to

       mediation but maintained the hearing setting. Subsequently, the trial court

       vacated the order for mediation, the parties engaged in and filed various

       motions related to discovery, and the trial court ordered the parties to use a co-

       parenting messaging application.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 5 of 14
[11]   On May 29, 2019, the trial court conducted the custody modification hearing,

       at which Mother, Father, and the GAL testified. On June 12, 2019, the trial

       court entered an order granting primary physical custody of Child to Father.

       Mother filed a motion to correct error, which was denied by the trial court on

       September 3, 2019.2 Mother now appeals.



                                    Discussion and Decision
                                                   Due Process
[12]   Mother contends that the order entered into the CCS on February 12, 2019

       effectively granted Father temporary physical custody of Child and did so in a

       manner that violated Mother’s right to due process. She asserts that she was

       summarily deprived of parenting time without an opportunity to be heard in a

       timely hearing.


[13]   Father concedes that the trial court’s adoption of the GAL recommendation

       allocated time with Child in a manner akin to awarding Father temporary

       physical custody, but he asserts that maintaining the status quo until the end of

       the school year was untenable. He describes the background for the GAL

       recommendation as follows:




       2
         Mother also filed an Amended Motion to Correct Error. However, an amended motion to correct error is a
       repetitive motion that does not extend the time for filing a notice of appeal. See Walters v. Austin, 968 N.E.2d
       233, 235 (Ind. Ct. App. 2012).

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020                     Page 6 of 14
               Despite attending school at Mill Creek, until February 12, 2019
               Child was still living primarily 37-45 minutes away with Mother.
               The onerous drive time was exacerbated by the fact that on
               Father’s mid-week parenting time nights, Mother would often
               insist on picking Child up from school in Clayton and taking him
               with her back to her home in Martinsville, and then require
               Father to pick Child up from Martinsville to begin his parenting
               time, only to drive Child back again to Father’s home in Clayton,
               and back yet-again to Martinsville at the conclusion of parenting
               time – all for Child to have to be driven back to Clayton for
               school in the morning.


       Appellee’s Brief at 17. According to Father, once the parties agreed that Mill

       Creek was to be Child’s school for the entire school year, they had – as a

       practical matter – agreed that Father would provide Child’s primary residence

       and Mother’s time with Child was necessarily diminished.


[14]   Due process, although not defined, embodies a concept of “fundamental

       fairness.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). Because child custody

       proceedings implicate the fundamental parent-child relationship, Indiana courts

       have recognized that procedural due process must be provided to protect the

       substantive rights of the parties. Brown v. Brown, 463 N.E.2d 310, 313 (Ind. Ct.

       App. 1984). In Brown, the mother had been granted custody in an ex parte

       temporary emergency order, but the cumulative effect of three procedural

       irregularities, including statutory non-compliance, required reversal of the

       custody order. See id. In Wilcox v. Wilcox, 635 N.E.2d 1131, 1136 (Ind. Ct.

       App. 1994), a panel of this Court reversed a custody order where Mother

       (exercising supervised visitation) had been “effectively removed from [her]


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 7 of 14
       children’s lives” and the children had been “firmly entrenched in Father’s life,”

       as Mother waited “for almost two years” before she had an opportunity to be

       heard.


[15]   The conduct of the proceedings here was not akin to that in Brown or Wilcox.

       The trial court did not act based solely upon information from one party, as in

       an emergency ex parte order. The trial court had the benefit of the GAL report

       which addressed, among other things, the matter of Mother’s relocation.

       Mother and Father had advised the trial court that they agreed with the GAL

       recommendations for Child’s school placement and counseling. A hearing had

       been set to coincide with the end of the school year. The order addressed the

       commuting burden upon Child inherent in one parent’s relocation from a

       particular school district. Mother was not effectively removed from Child’s life,

       and she was not denied the opportunity to be heard for an extended period of

       time.


[16]   And even if we consider the February 12, 2019 order to be equivalent to a

       temporary change of custody absent agreement, we can provide Mother no

       relief at this juncture, apart from our review of the merits of the final custody

       decision. In Stratton v. Stratton, 834 N.E.2d 1146, 1149 (Ind. Ct. App. 2005),

       this court held that once a final custody determination has been made, issues

       regarding a determination of temporary custody are moot. As we observed in

       Stratton, because the period of temporary custody has passed and a final

       determination has been made, we cannot render effective relief when a parent is



       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 8 of 14
       “attacking the validity of the trial court’s temporary custody determination.”

       Id.


                                               Modification
[17]   A parent seeking modification of child custody bears the burden of proving that

       the existing custody order should be altered. Steele-Giri v. Steele, 51 N.E.3d 119,

       124 (Ind. 2016). Indiana Code Section 31-17-2-21 provides that a court may

       not modify a child custody order unless the modification is in the best interests

       of the child and there is a substantial change in one or more of the pertinent

       statutory factors for an initial award of custody. The factors of Indiana Code

       Section 31-17-2-8 include the following relevant here:


               (1) The age and sex of the child;


               (2) The wishes of the child’s parent or parents;


               (3) The wishes of the child, with more consideration given to the
                   child’s wishes if the child is at least fourteen (14) years of age:


               (4) The interaction and interrelationship of the child with:


                   (A) the child’s parent or parents;


                   (B) the child’s sibling; and


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



       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 9 of 14
               (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 …[.]


[18]   Mother contends that the custody modification order is contrary to Child’s best

       interests and that the evidence did not show a substantial change in

       circumstances. We review a child custody determination for an abuse of

       discretion. Gonzalez v. Gonzalez, 893 N.E.2d 333, 335 (Ind. Ct. App. 2008). In

       considering the facts and circumstances before it, and exercising its discretion,

       the trial court is not free to disregard statutory guidance. See id. Here, the trial

       court sua sponte entered findings and conclusions thereon. We will set aside a

       finding or the judgment only if it is clearly erroneous, that is, if there are no

       facts or inferences drawn therefrom to support it. Montgomery v. Montgomery, 59

       N.E.3d 343, 349 (Ind. Ct. App. 2016). However, sua sponte findings control

       only with respect to the issues covered, and a general judgment standard applies

       to issues outside the findings, meaning that the reviewing court should affirm

       based on any legal theory supported by the evidence. Steele-Giri, 51 N.E.3d at

       123-24.

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 10 of 14
[19]   The order on appeal contains factual findings with respect to the parties’

       employment and income, together with very limited findings regarding the

       interaction of the parents and their interaction with Child. Specifically, the trial

       court found that Mother had been non-compliant with a parenting time order,

       had physically assaulted Father in the presence of Child, and had reported

       Father to Child Protective Services (“CPS”). The trial court stated, generically,

       that it had considered Child’s age and sex, and Mother’s “mental and

       emotional issues.” Appealed Order at 1.


[20]   Mother challenges the factual finding as to her non-compliance. She observes

       that the parties’ agreement, adopted by the court in paternity proceedings, did

       not provide for overnight visits because Child was an infant. As such, Mother

       was not specifically obligated by a court order to permit Father overnight

       parenting time at all. The evidence of record indicates that Father and Mother

       had traditionally agreed upon the division of parenting time. Father testified

       that, after he and Mother ended their cohabitation, Mother was less

       cooperative. According to Father, Mother sometimes “offered more [parenting

       time]” to Father, sometimes offered less if he had “irritated her,” and

       sometimes was “uncooperative with transportation.” (Tr. Vol. II, pgs. 30-31.)

       He described his parenting time as ranging from one overnight per week to two

       overnights. He testified that he sometimes enjoyed less parenting time than that

       prescribed by the Indiana Parenting Time Guidelines. We acknowledge that

       the trial court found Mother non-compliant, but “it is well-settled that in order

       to support a modification of custody, such interference must be continuing and


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 11 of 14
       substantial.” Montgomery, 59 N.E.3d at 351. The testimony did not establish a

       continuing and substantial interference on Mother’s part.


[21]   As for the physical assault, the trial court was in the best position to make a

       credibility determination in the face of conflicting evidence. See Kirk v. Kirk,

       770 N.E.2d 304, 307 (Ind. 2002) (recognizing that trial courts, unlike appellate

       courts, have the ability to observe witness demeanor and scrutinize their

       testimony as it is presented). A police report indicated that Father accused

       Mother of striking him in the face, while Mother and her then-boyfriend

       reported that the encounter had involved only mutual nudging with elbows.

       Nonetheless, Father testified at the custody hearing that Mother “hit him in the

       face” with Child seated nearby in Father’s truck. (Tr. Vol. II, pg. 39.) The trial

       court credited this testimony, and we do not interfere with the credibility

       determination. See In re the Marriage of Sutton, 16 N.E.3d 481, 484 (Ind. Ct.

       App. 2014) (observing that we do not reweigh evidence nor judge credibility of

       witnesses in a child custody matter). Finally, Mother challenges the finding

       that ascribed fault to her for making unsubstantiated CPS reports. She

       complains that the trial court did not consider a report Father made to CPS

       regarding Mother’s care or supervision of Child. Again, we cannot reweigh the

       evidence before the trial court. Id.


[22]   The limited findings do not specifically address Child’s familial interactions and

       his adjustment to his home, school, and community. We therefore look to the

       evidence favorable to the judgment to determine if the modification is

       supported by the evidence. Id. There was evidence that Child was bonded to

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 12 of 14
       each of his parents and to his siblings in both households. He participated in

       sports and spent time with both paternal and maternal grandparents. His

       behavioral problems were significant. Child had persistently exhibited lack of

       control in school settings by kicking, hitting, threatening, cursing, and

       punching. He had once stabbed a school employee with a pencil. He

       threatened to bring a gun to school and kill people.


[23]   Child was awaiting an evaluation to obtain an individualized education plan at

       Mill Creek. He was receiving psychological counseling services at Hamilton

       Center and behavioral coaching at his school. Father testified that the

       behavioral coach offered private sessions during the summer break, and Father

       intended that Child participate in the private sessions. The GAL testified that

       Child was receiving “heavy duty” services in his current school system; she

       didn’t like the idea of Child moving from school to school; she acknowledged

       that she had made a “nebulous” custody modification recommendation, but, if

       she were “pressed,” she would recommend custody be placed with Father. Id.

       at 63, 72.


[24]   Mother argues that Father demonstrated no change in circumstances that was

       of substantial significance, and that Child’s placement with Mother, who now

       works in a special education classroom, is in Child’s best interests. Mother

       observes that Child has had behavioral problems in more than one school and

       that he could receive psychological services in her school district. We are

       mindful that “the effect on the child is what renders a change substantial or

       inconsequential.” In re Sutton, 16 N.E.3d at 485. The GAL was appointed to

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 13 of 14
       represent Child’s best interests, and she expressed concern that moving Child

       from his current school would reward him for his acting out. She opined that

       either parent was fit to have physical custody of Child. However, it is not

       enough that the evidence might have supported a different conclusion. Kirk,

       770 N.E.2d at 307. Rather, we will reverse only when the evidence positively

       requires the conclusion contended for by the appellant. Id. That is not the case

       here.



                                               Conclusion
[25]   Mother has not shown a deprivation of her due process rights, nor has she

       demonstrated an abuse of the trial court’s discretion.


[26]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-2304 | March 13, 2020   Page 14 of 14
