MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be
                                                               May 25 2017, 10:04 am
regarded as precedent or cited before any
court except for the purpose of establishing                        CLERK
                                                                Indiana Supreme Court
the defense of res judicata, collateral                            Court of Appeals
                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Timothy J. Lemon                                        Lizbeth W. Pease
Knox, Indiana                                           Nichols & Wallsmith
                                                        Knox, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

S. S.,                                                  May 25, 2017
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        75A03-1612-DR-2887
         v.                                             Appeal from the Starke Circuit
                                                        Court
C. D.,                                                  The Honorable Kim Hall, Judge
Appellee-Petitioner.                                    Trial Court Cause No.
                                                        75C01-1210-DR-109



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017     Page 1 of 7
                                               Case Summary
[1]   S.S. (“Mother”) appeals an order granting the custody modification petition of

      C.D. (“Father”) as to two of their three children. She presents the sole issue of

      whether the custody modification order lacks sufficient evidentiary support.

      We affirm.



                                Facts and Procedural History
[2]   The parties were married on August 9, 1999, and separated on March 20, 2012.

      They had three children, M.D. (born in 1999), A.D. (born in 2001), and L.D.

      (born in 2009). The marriage was dissolved on November 19, 2013. The

      parents shared legal custody of all three children. Father was awarded the

      physical custody of M.D. and Mother was awarded the physical custody of the

      two younger children. After Father experienced a house fire and housing

      insecurity, M.D.’s custody was changed to Mother.


[3]   In 2016, when Mother had physical custody of all the children, M.D. wrote a

      letter to the trial court expressing her desire to return to Father’s custody.

      Around the same time, A.D. contacted Father via text to report that L.D. had

      been struck in the face by his maternal grandfather.1 Both M.D. and A.D. sent

      Father photo images showing L.D.’s black eye and swollen lip.




      1
          The Department of Child Services investigated and concluded that L.D.’s injuries were self-inflicted.


      Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017                  Page 2 of 7
[4]   On September 20, 2016, Father filed a petition to modify custody of M.D. and

      L.D.2 In the petition, Father stated that circumstances had changed

      substantially. He averred that M.D. wished to return to his custody. He also

      averred that L.D. had been hit in the face by an “unknown” person, resulting in

      a black eye. (App. at 10.) Father alleged that L.D. had appeared for parenting

      time with bruises “on a number of occasions.” (App. at 10.) Finally, Father

      asserted that L.D. is a child with behavioral issues but Mother refused testing by

      a specialist. Father requested, alternatively, physical custody of L.D. or an

      order that Mother be required to obtain further evaluation for L.D.


[5]   Hearings were conducted on November 1 and November 9, 2016. The trial

      court also conducted an in-camera interview with M.D. On November 30,

      2016, the trial court granted Father’s petition to modify physical custody of

      M.D. and L.D. to him. Mother now appeals.



                                    Discussion and Decision
[6]   Indiana Code Section 31-17-2-21 provides that a trial court “may not modify a

      child custody order unless: (1) the modification is in the best interests of the

      child; and (2) there is a substantial change in one (1) or more of the factors that

      the court may consider under [Ind. Code Section 31-17-2-8] …” Indiana Code

      Section 31-17-2-8 sets forth relevant factors that must be considered, including:




      2
          By all indications, A.D. wished to remain with Mother and Father did not oppose this.


      Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017         Page 3 of 7
        (1) The age and sex of the child.


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


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


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


            (A) the child’s parent or parents;


            (B) the child’s sibling; and


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


        (5) The child’s adjustment to the child’s:


            (A) home;


            (B) school; and


            (C) community.


        (6) The mental and physical health of all individuals involved.


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


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


Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017   Page 4 of 7
      The party seeking to modify custody bears the burden of demonstrating that the

      existing custody order should be altered. Steele-Giri v. Steele, 51 N.E.3d 119, 124

      (Ind. 2016).


[7]   On appeal from a family law decision, we accord great deference to the trial

      court judge, who was in the position to see witnesses, observe their demeanor,

      and scrutinize their testimony. Id. We do not reverse a decision because the

      evidence might support some other conclusion; rather, the evidence must

      positively require the conclusion contended for by the appellant before there is a

      basis for reversal. Id. Appellate judges will not reweigh the evidence nor

      reassess witness credibility, and we will view the evidence most favorably to the

      judgment. Id.


[8]   The evidence most favorable to the judgment is that M.D.’s and Mother’s

      relationship had deteriorated to the point of a physical altercation. When

      police temporarily removed M.D. from Mother’s home, she was taken to an

      aunt’s home because Mother advised the police that Father did not possess

      parental rights. M.D. was permitted to call Father only after police were

      summoned to the aunt’s home.


[9]   Father and the paternal grandmother each testified that L.D. had often

      appeared for parenting time with bruises. The grandmother testified that she

      had seen a handprint bruise. Father recalled seeing bruising on one arm from

      the wrist to the elbow and other bruises on L.D.’s hips and thigh. He described

      one bruise as a “baseball size.” (Tr. Vol. II at 19.) Father testified that he


      Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017   Page 5 of 7
       confronted Mother about corporal punishment and she replied that a paddle

       was “the only thing that works.” (Tr. Vol. II at 22.) Per Father’s testimony, he

       had encouraged Mother to obtain testing of L.D. “for behavioral issues,” but

       Mother had not agreed. (Tr. Vol. II at 25.) She had obtained prescriptions for

       L.D., but stopped and started his medication.


[10]   After L.D. was barred from riding the school bus,3 Father had urged Mother to

       investigate special education options for L.D. Mother initially disagreed with

       that plan. However, after school personnel urged the use of an Individualized

       Educational Plan, Mother agreed but did not inform Father of the meeting. On

       at least two occasions, Mother removed Father’s information from the school

       records. She did not consult Father as to medical appointments and did not

       inform him when M.D. was involved in a vehicle accident.


[11]   Mother concedes that there had been a change in the relationship between

       herself and M.D. However, she argues that M.D.’s expressed wishes provide

       an inadequate basis for a change of custody. She also notes that there was

       evidence of a lack of parental communication and cooperation, but insists that

       her shortcomings in this regard did not amount to egregious behavior. Mother

       requests a reweighing of the evidence, something we will not do. Steele-Giri, 51

       N.E.3d at 124.




       3
           This was apparently due to L.D. banging his head on the bus windows when he was upset.


       Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017          Page 6 of 7
[12]   The evidentiary record discloses evidence of a change in one or more statutory

       circumstances that a trial court is to consider in a custody modification

       proceeding. Also, there is evidence to support the trial court’s determination

       that a change of custody is in the best interests of M.D. and L.D.


[13]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 75A03-1612-DR-2887 | May 25, 2017   Page 7 of 7
