      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                      FILED
      this Memorandum Decision shall not be                                  Mar 13 2020, 10:57 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
      Matthew R. Lemme
      Lemme Law Offices
      New Albany, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Paternity of                        March 13, 2020
      X.R.,                                                    Court of Appeals Case No.
                                                               19A-JP-1962
      Stephen Reid,
                                                               Appeal from the
      Appellant-Petitioner,                                    Floyd Circuit Court
              v.                                               The Honorable
                                                                J. Terrence Cody, Judge
                                                               The Honorable
      Julie Bodkin (Hodges),                                   Julie Fessel Flanigan, Magistrate
      Appellee-Respondent.                                     Trial Court Cause No.
                                                               22C01-1011-JP-116



      Kirsch, Judge.


[1]   In this paternity action, Stephen Reid (“Father”) and Julie Bodkin (Hodges)

      (“Mother”) are parents of a thirteen-year-old son (“Child”). Father and Mother


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020                  Page 1 of 12
      shared joint legal custody of Child, but upon Mother’s request, the trial court

      awarded sole legal custody of Child to Mother. Father appeals, raising three

      issues, which we consolidate and restate as:


               I.       Whether the trial court violated Father’s right to due
                        process; and


               II.      Whether there was sufficient evidence to support the trial
                        court’s decision to grant Mother sole legal custody of
                        Child.


[2]   We affirm.


                                   Facts and Procedural History1
[3]   Child was born on November 28, 2005, and on November 3, 2010, Father filed

      a petition to establish his paternity over Child. Appellant’s App. Vol. 2 at 2.

      Through mediation, Father and Mother agreed that they should share joint

      legal custody of Child. Subsequent orders in 2015 and 2016 made some minor

      changes, but the joint legal custody arrangement remained the same.


[4]   In 2014 or 2015, Father was diagnosed with Attention Deficit Disorder

      (“ADD”) and began taking both Adderall and Vyvanse for his condition. Tr.

      Vol. 2 at 78-79. He took the medications for two or three years but stopped in




      1
        We remind Father’s counsel that Indiana Appellate Rule 46(A)(6)(a) requires that facts set forth in a brief
      “shall be supported by page references to the Record on Appeal or Appendix in accordance with Rule
      22(C).” In Father’s twenty-seven-page brief, there are no citations to the Appendix and only five citations to
      the Transcript.

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020                    Page 2 of 12
      2017. Id. Father planned to see a doctor about getting back on medication

      because without the medication, he found it difficult to perform his job. Id. at

      46, 79.


[5]   Father and Mother were constantly at odds over how to parent Child,

      disagreeing on both serious and trivial issues. They could not agree on which

      school Child should attend. Id. at 11, 13. Mother did not approve of Father’s

      use of corporal punishment on Child. Father would sometimes spank Child

      with a belt, which left bruises and welts on Child’s buttocks. Id. at 17, 21-22,

      38-39. This worried Mother and made her believe that Child needed to be

      protected from Father. Id. at 21-22. Mother and Father also disagreed about

      how closely Child should be supervised. Mother was upset that when Child

      was at Father’s residence, Father would sometimes leave Child alone “for

      extended periods of time.” Id. at 18; see also id. at 17, 19, 37, 51. Mother also

      believed Father discussed topics with Child that were inappropriate, such as

      drinking, “sexual things,” and details about the legal proceedings between

      Mother and Father. Id. at 24-25. Mother and Father even disagreed about

      what kind of haircut Child should get. Father was angry that Mother allowed

      Child to get a haircut that was just a trim, so Father threatened to shave Child’s

      head. Id. at 20-21.


[6]   On August 8, 2018, Mother filed a Petition for Modification of Child Custody,

      or in the Alternative, Motion for School Selection (“Petition to Modify

      Custody”). Appellant’s App. Vol. 2 at 11. On May 15, 2019, about two weeks

      before the hearing on Mother’s Petition to Modify Custody, Father’s mother

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020   Page 3 of 12
      died. He had purchased his mother’s home about two years earlier, but he

      resided elsewhere even after he bought the home. Tr. Vol. 2 at 45, 74. Once his

      mother died, Father moved into the home, and his fiancé sometimes stayed

      with him. Id. at 72-74.


[7]   On May 31, 2019, the trial court conducted a hearing on Mother’s Petition to

      Modify Custody. Appellant’s App. Vol. 2 at 14; Tr. Vol. 2 at 2. As of the date of

      the hearing, Child was thirteen years old. Tr. Vol. 2 at 17. Also, as of the date

      of the hearing, Father had pending charges for Level 6 felony stalking,

      disorderly conduct, and driving while suspended.2 Id. at 21, 63, 76-77, 79-80.

      Both Father and Mother testified that they could not communicate with each

      other or make parenting decisions together. Id. at 10, 59.


[8]   On direct exam, Mother’s attorney asked her if she was seeking sole legal

      custody of Child. Mother said she was:


               Q. Okay. So, given your inability to make joint decisions, your
               inability to communicate, you believe it’s in [Child’s] best
               interest that the Court grant you sole legal custody. Is that your
               court request?


               A. That is my request.




      2
       The record is clear that Father had a pending charge for Level 6 felony stalking, but it is less clear about
      whether Father had pending charges for both disorderly conduct and driving while suspended or just had a
      pending charge for one of those two offenses. Tr. Vol. 2 at 75-79.

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020                     Page 4 of 12
       Id. at 30. Father did not lodge any objection to Mother’s statement, nor did he

       make any statement to contradict that Mother’s Petition to Modify Custody

       sought sole legal custody of Child. Later, during Father’s testimony, Father’s

       attorney noted that “[Mother] wants to change legal custody to herself . . . .”

       Id. at 56. Father’s lawyer asked Father, “Is there anything else that you think

       the judge needs to know about [that]?” Id. Father’s response merely gave

       reasons why Mother should not be granted sole legal custody and did not

       contradict that Mother’s Petition to Modify Custody had requested sole legal

       custody. Id. at 57. At no time did Father’s attorney argue that Mother’s request

       for sole legal custody was not properly before the trial court.


[9]    At the conclusion of testimony, the trial court asked each party whether they

       had been diagnosed with a mental illness and whether either of them was taking

       medication for such illnesses. Id. at 72, 78-79. Neither party had raised these

       issues during the hearing. Mother responded that she had no such diagnosis

       and that she was not taking medication. Id. at 72. Father admitted that, in

       2014 or 2015, he had been diagnosed with ADD and prescribed Adderall and

       Vyvanse. Id. at 78-79. He stated that he went off the medication in 2017, but

       he told the trial court that he wanted to see a doctor about getting back on the

       medication because he was having trouble performing his job when he was not

       taking medication. Id. at 79.


[10]   After a brief recess, the trial court awarded sole legal custody of Child to

       Mother, citing, among others, the following factors: 1) joint legal custody was

       no longer appropriate; 2) Father had pending criminal charges, one for Level 6

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020   Page 5 of 12
       felony stalking; 3) Father’s untreated ADD, which, Father admitted, made it

       difficult to perform his job; and 4) Father’s grief from the loss of his mother. Id.

       at 81-82, 84. As to Mother, the trial court found that she had a stable home and

       a stable relationship with her husband. Id. at 82. On June 5, 2019, the written

       order was issued and recited the same reasons as the ruling from the bench but

       also mentioned Father’s housing situation as a reason to award sole legal

       custody to Mother. Appellant’s App. Vol. 2 at 16.


[11]   On June 28, 2019, Father filed a motion to correct error. Id. at 14, 20. On July

       24, 2019, the motion to correct error was denied. Father now appeals.


                                      Discussion and Decision
[12]   We first observe that Mother has not filed an appellee’s brief, and, as a result,

       we have no duty to make arguments on her behalf. See Ind. Dep’t of Envtl. Mgmt.

       v. Constr. Mgmt. Assocs., L.L.C., 890 N.E.2d 107, 111 (Ind. Ct. App. 2008).

       Thus, if Father’s brief demonstrates prima facie error, we will reverse the

       trial court’s judgment. See id. Prima facie error is error “at first sight, on first

       appearance, or on the face of it.” Id. If Father fails to meet this burden, we will

       affirm the trial court. See id.


[13]   A party seeking modification of custody bears the burden of demonstrating that

       the existing arrangement is no longer in the best interests of the child and that

       there has been a substantial change in one or more of the enumerated statutory

       factors. Bailey v. Bailey, 7 N.E.3d 340, 343 (Ind. Ct. App. 2014). We review a

       custody ruling for an abuse of discretion. In re Paternity of Seifert, 605 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020   Page 6 of 12
       1202, 1205 (Ind. Ct. App. 1993), trans. denied. We neither reweigh the evidence

       nor judge the credibility of the witnesses. Id. We determine only whether the

       record reveals evidence or reasonable inferences that serve as a rational basis for

       the trial court’s ruling. Id.


                                               I. Due Process
[14]   Father argues that the trial court’s ruling violated his right to due process in two

       ways. First, he claims that in her Petition to Modify Custody, Mother did not

       ask for sole legal custody of Child. Thus, Father argues, by awarding sole legal

       custody to Mother, the trial court injected an issue into the proceedings that

       Father was not prepared to litigate. Second, Father claims the trial court

       interposed another issue into the proceedings that Father was not prepared to

       litigate when the trial court, sua sponte, asked Father if he had been diagnosed

       with a mental illness.


[15]   In support of his first due process argument, Father cites Bailey, 7 N.E.3d at

       344, where we held:


               Longstanding Indiana law has prohibited trial courts from sua
               sponte ordering a change of custody. Rather, when such an
               important issue as the custody of children is involved, a
               modification generally can be ordered only after a party has filed
               a petition requesting such a modification . . . . An opportunity to
               be heard is essential before a parent can be deprived of custody.


       Id. (internal citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020   Page 7 of 12
[16]   However, while Father’s recitation of the law is accurate – as far as it goes - we

       cannot confirm his allegation that Mother did not request sole legal custody of

       Child because Father has failed to include a copy of Mother’s Petition to

       Modify Custody in his Appendix. “In civil cases, an Appendix ‘shall contain ...

       pleadings and other documents from the Clerk’s Record . . . that are necessary

       for resolution of the issues raised on appeal.’” In re Marriage of Gertiser, 45

       N.E.3d 363, 366 n.2 (Ind. 2015) (quoting Ind. Appellate Rule 50(A)(2)(f)).

       “Appellants who fail to include the materials necessary for our review risk

       waiver of the affected issues or dismissal of the appeal.” Cavallo v. Allied

       Physicians of Michiana, LLC, 42 N.E.3d 995, 999 n.1 (Ind. Ct. App. 2015). Thus,

       we find that Father has waived the issue of whether Mother’s Petition to

       Modify Custody properly placed the issue of sole legal custody before the trial

       court.


[17]   Furthermore, we find Father’s due process argument unavailing. Even if

       Mother’s Petition to Modify Custody did not raise the issue of sole legal

       custody, Father consented to litigation of that issue. Issues raised by pleadings

       “can be altered by the evidence adduced at trial where the parties have

       impliedly or expressly consented to new issues being tried.” Bailey, 7 N.E.3d at

       344. Here, Father did not object during Mother’s testimony where she

       explicitly stated that she wanted sole legal custody of Child. Tr. Vol. 2 at 20.

       Later, during Father’s testimony, Father’s attorney observed that “[Mother]

       wants to change legal custody to herself . . . .” Id. at 56. Father’s lawyer asked

       Father, “Is there anything else that you think the judge needs to know about


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020   Page 8 of 12
       [that]?” Id. Father did not respond that Mother’s Petition to Modify Custody

       had not requested sole legal custody, but he instead gave reasons why Mother

       should not be granted sole legal custody. Id. at 57. Moreover, at no point did

       Father’s attorney argue that Mother’s request for sole legal custody was not

       properly before the trial court. Thus, Father consented to litigation of the issue

       of whether Mother should have sole legal custody of Child. Father’s right to

       due process was not violated.


[18]   Father’s second due process argument is also unavailing. He claims the trial

       court violated his right to due process by raising the issue of Father’s mental

       health because, in doing so, the trial court inserted an unexpected issue into the

       proceedings, which Father was not prepared to address. Father correctly

       observes that neither he nor Mother presented evidence at the hearing related to

       mental health. However, Father’s counsel did not object to the trial court’s

       questions about Father’s mental health, so the issue is waived. See Tesfamariam

       v. Woldenhaimanot, 956 N.E.2d 118, 122 (Ind. Ct. App. 2011). Waiver

       notwithstanding, Father should have anticipated this line of inquiry because

       Indiana Code section 31-17-2-8(6) requires a trial court to consider mental health

       of all persons involved in a custody matter: “The court shall consider all

       relevant factors, including the following: . . . The mental and physical health of

       all individuals involved.” Id. (emphasis added). We also observe that after

       eliciting testimony about Father’s mental health, the trial court invited Father to

       pursue additional questioning, asking him, “[do] the [c]ourt’s questions bring

       any questions that you want to follow-up on?” Tr. Vol. 2 at 79. Father’s

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020   Page 9 of 12
       counsel raised no issues regarding the trial court’s questions. Thus, by raising

       the issue of Father’s mental health sua sponte, the trial court did not violate

       Father’s right to due process.


                                     II. Sufficiency of Evidence
[19]   Father contends the evidence was insufficient to establish that: 1) he has

       untreated ADD; 2) his housing situation is unstable; and 3) he is experiencing

       more than ordinary grief from his mother’s death. Thus, he contends the

       evidence did not support the trial court’s decision to grant sole legal custody of

       Child to Mother. Even assuming Father is correct that the findings about his

       grief and his housing situation do not support the judgment, we find that the

       trial court’s decision to award sole legal custody of Child to Mother was

       supported by other facts.


[20]   Indiana Code section 31-14-13-6 provides that a trial court may not modify a

       custody order in a paternity action unless (1) modification is in the child’s best

       interests, and 2) there is a substantial change in one or more of the factors that

       the trial court may consider under Indiana Code section 31-14-13-2. The

       factors in Indiana Code section 31-14-13-2 include the child’s relationship with

       the child’s parents, the mental and physical health of all individuals involved,

       and evidence of a pattern of domestic or family violence by either parent. Id.


[21]   Here, the trial court cited the following as substantial changes in circumstances

       to justify awarding sole legal custody of Child to Mother: 1) Father’s untreated

       ADD, which, Father admitted, made it difficult for him to perform his job; and

       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020   Page 10 of 12
       2) Father’s pending criminal charges, one of which was for Level 6 felony

       stalking. Tr. Vol. 2 at 82. First, the evidence supported the trial court’s finding

       that Father suffered from a mental illness and that the mental illness made it

       difficult for Father to perform his job. Moreover, the trial court did not abuse

       its discretion in citing both factors as substantial changes in circumstances that

       justified a change of custody. Our Supreme Court has held that mental illness

       may constitute a substantial change in circumstances that justifies modification

       of custody. See Owen v. Owen, 563 N.E.2d 605, 608 (Ind. 1990) (former wife’s

       deteriorating mental condition provided substantial evidence of change in

       circumstances justifying change of custody to former husband). Likewise,

       pending criminal charges can constitute a substantial change in circumstances

       that justifies a change of custody. Cf. Walker v. Kelley, 819 N.E.2d 832, 838-39

       (Ind. Ct. App. 2004) (where default judgment was entered for Father on his

       motion for change of custody, Father’s pending criminal charges provided a

       meritorious defense to Mother on her motion to set aside the default judgment).


[22]   These changed circumstances also supported the trial court’s determination that

       awarding sole legal custody to Mother was in Child’s best interests. Moreover,

       other evidence also demonstrated that modifying custody was in Child’s best

       interest. Father would spank Child with a belt, using enough force to leave

       bruises and welts on Child’s buttocks, which worried Mother to the point that

       she believed Child needed to be protected from Father. Tr. Vol. 2 at 17, 21-22,

       38-39. By obtaining sole legal custody of Child, Mother alone will decide what

       kind of discipline is appropriate, which supports the trial court’s conclusion that


       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020   Page 11 of 12
       it was in Child’s best interest for Mother to have sole legal custody. Cf. Collyear-

       Bell v. Bell, 105 N.E.3d 176, 184-85 (Ind. Ct. App. 2018) (in divorce case, trial

       court did not abuse its discretion in modifying physical custody of child in favor

       of the ex-husband based on evidence of ex-wife’s violence directed toward the

       child; ex-wife had repeatedly beat child with a belt or a switch, and the most

       recent whipping resulted in injuries to child). Accordingly, Father has failed to

       show that the trial court abused its discretion in awarding sole legal custody of

       Child to Mother, and thus, he has failed to demonstrate prima facie error.


[23]   Affirmed.


       Bailey, J., and Mathias, J., concur.


       .




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-1962 | March 13, 2020   Page 12 of 12
