MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Aug 16 2018, 7:36 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE
Kristopher G. Richter
South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kristopher G. Richter,                                   August 16, 2018
Appellant,                                               Court of Appeals Case No.
                                                         71A03-1710-JP-2394
        v.                                               Appeal from the St. Joseph Probate
                                                         Court
Kaylie E. Sexton,                                        The Honorable James C. Stewart-
Appellee.                                                Brown, Magistrate
                                                         Trial Court Cause Nos.
                                                         71J01-1601-JP-46
                                                         71J01-1601-JP-47



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018         Page 1 of 28
[1]   Kristopher G. Richter (“Father”) appeals the trial court’s Order Confirming

      Paternity. Father raises six issues which we revise and restate as:


            I.     Whether the trial court abused its discretion in ordering Father to
                   pay attorney fees;

           II.     Whether the court erred in ordering Father to undergo a
                   psychological examination;

          III.     Whether the court erred in its determination of Father’s child
                   support obligation;

          IV.      Whether the court erred in not granting Father’s motion to change
                   judge;

           V.      Whether the court erred in granting Mother primary physical and
                   legal custody; and

          VI.      Whether the court abused its discretion in denying Father’s
                   motion for a continuance.

      We affirm.


                                       Facts and Procedural History

[2]   Kaylie E. Sexton (“Mother”) and Father had two children: G.R., born in June

      2012, and E.R., born in June 2013. On January 20, 2016, Mother filed a

      Petition to Establish Rights Incident to Paternity Pursuant to Ind. Code § 16-37-

      2-2.1.1 On January 27, 2016, Mother filed a “Verified Emergency Petition to

      Establish Parenting Time, for Supervised Parenting Time and for Appointment



      1
        The petition included in the record lists only G.R. and cause number 71J01-1601-JP-46 (“Cause No. 46”).
      The record does not include a copy of the chronological case summary for cause number 71J01-1601-JP-47
      (“Cause No. 47”). In his statement of the case, Father cites to Mother’s petition and asserts that she was
      seeking full custody of G.R. and E.R. On March 7, 2017, the trial court consolidated Cause Nos. 46 and 47.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018         Page 2 of 28
      of GAL.” Appellant’s Appendix Volume II at 32. That same day, the court

      entered an order denying Mother’s petition “as no emergency [was] alleged,”

      stating that it reviewed both Paternity Affidavits, and noting that parents may

      have an agreement to share joint legal custody, that a provision clearly

      indicated that Mother would have primary physical custody, and Mother

      therefore had the sole right to determine the physical location and day-to-day

      care of her children subject to the terms of the Paternity Affidavit.


[3]   On March 3, 2016, Father filed a motion for continuance stating that the parties

      had agreed to a continuance “in order to hold a possible 4-way meeting.” Id. at

      39. That same day, the court granted the continuance and scheduled a hearing

      for April 14, 2016.


[4]   In April 2016, Mother’s counsel filed a Notice of Agreed Guardian ad Litem

      asserting the parties agreed that Brian Gates shall be appointed guardian ad

      litem, and Gates was appointed.


[5]   On May 4, 2016, Father’s attorney withdrew his appearance and Father then

      proceeded pro se. On May 20, 2016, Father filed a Motion to Request Hearing,

      a Motion to Establish Paternity, a motion to vacate the court’s April 22, 2016

      order appointing the guardian ad litem, and a motion for stay. On May 27,

      2016, Father filed a Verified Emergency Petition for Physical Custody. On

      June 6, 2016, the court entered an order stating that it did not believe an

      emergency existed and interpreting Father’s pleadings as an objection to

      Mother’s relocation.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 3 of 28
[6]   On June 29, 2016, the court held a status hearing and entered an order which

      vacated the appointment of Gates, indicated it would appoint another attorney

      to serve as guardian ad litem, and ordered parents to fully cooperate with the

      guardian ad litem investigation and completion of the report. On July 5, 2016,

      the court appointed Nicholas Artusi (“GAL Artusi”) as the guardian ad litem.


[7]   On July 15, 2016, Father filed a verified motion for contempt alleging Mother

      denied his right to visitation on Memorial Day weekend, intended on taking the

      children out of town without his permission, and interfered with child custody.

      On July 20, 2016, the court entered an order finding that Father based his

      motion for contempt on the assumption that he and Mother share joint legal

      custody, and noting that the Paternity Affidavit executed by the parties

      indicates that Father and Mother wished to share joint legal custody and that

      this provision “to be considered valid, must be accompanied with genetic test

      results obtained within 60 days of the execution of the affidavit and same to be

      submitted to the Health Department also within 60 days of execution,” and

      “[f]or this reason, until Father can show otherwise, Mother has sole legal and

      physical custody and any parenting time is at her sole discretion.” Appellant’s

      Appendix Volume III at 2.


[8]   On August 9, 2016, Father filed notices of subpoenas duces tecum requesting

      the medical or mental health records of G.R. and E.R. and requests for

      production of documents. It also filed a “Motion to Vacate Order and Compel

      an Order to Show Cause” alleging in part that he submitted to a DNA test and



      Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 4 of 28
       moving the court to enter the test “as further authentication of the paternity of

       his ‘Children’.” Id. at 31, 34.


[9]    On September 19, 2016, Father filed subpoenas duces tecum for Mother’s cell

       phone records and the children’s daycare records. Mother followed with an

       objection to Father’s non-party discovery requests and request for attorney fees.

       On September 23, 2016, Father filed an “OPPOSITION” to Mother’s

       objection. Appellant’s Appendix Volume IV at 2-7.


[10]   On December 8, 2016, the court held a hearing and entered an order stating

       that Mother, GAL Artusi, and Mother’s attorney appeared for the hearing and

       Father did not appear, and dismissed Father’s August 9, 2016 motion with

       prejudice.


[11]   On December 29, 2016, Father filed a Verified Motion for Modification of

       Visitation, and on December 30, 2016, he filed a motion to change judge and a

       motion for stay. On January 3, 2017, he filed an “Amended Motion to Vacate

       Order,” asserting in part that he sought “relief from the Order Dismissing Motion

       to Vacate Order and Compel an Order to Show Cause.” Id. at 94-95. That same day,

       GAL Artusi filed a Motion in Opposition to Father’s Motion to Vacate Order.

       On January 4, 2017, the court denied Father’s motion to change judge.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 5 of 28
[12]   In a letter dated January 6, 2017, and titled Supplemental Guardian Ad Litem

       Report to the Court,2 GAL Artusi recommended in part that Mother be granted

       physical custody of the children, the parties be granted legal custody of the

       children, and Father be granted parenting time in accordance with the Indiana

       Parenting Time Guidelines. The report also recommended:


                  5) Father is required to undergo an initial intake with Oaklawn
                  or another facility equivalent to Oaklawn. If Father is
                  recommended to undergo additional services he is to follow the
                  recommendation of the health care provider. Father is instructed
                  to sign all necessary release forms to allow me access to his files
                  and if medication is prescribed that information is made available
                  to all parties in the case including what the medication is, how
                  often it is taken, side effects and the length in which the
                  medication will be taken.


       Appellant’s Appendix Volume V at 81.


[13]   On February 1, 2017, Father filed subpoenas duces tecum for Mother’s salary

       stubs or wage statements and income tax returns and Mother’s witness list or

       witness affidavits for hearing. On February 3, 2017, Father filed a motion for

       enlargement of time to respond to the Supplemental Guardian ad Litem Report

       to the Court and a Motion to Certify Interlocutory Order and for Stay

       requesting that the court certify for appeal its January 4, 2017 order denying his

       motion for change of judge. On February 7, 2017, he filed an Amended




       2
           The report stated: “This is the first report issued on this matter.” Appellant’s Appendix Volume V at 72.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018              Page 6 of 28
       Motion to Strike asserting in part that the court should strike GAL Artusi’s

       supplemental report and “specifically recommendation number five (5), as

       scandalous matter that has no merit.” Appellant’s Appendix Volume IV at 126.

       On February 15, 2017, he filed a Motion for Relief from Order pursuant to Ind.

       Trial Rule 60(B).


[14]   On March 2, 2017, the court held a hearing. The court acknowledged that the

       parties had discovery to exchange and, when asked by the court what Father

       had for Mother’s attorney, he answered in part that he had “the TPD actual

       contract and copy of the check from the workmans comp payment, and then I

       also have proof of income from unemployment.” Transcript Volume II at 36.

       In discussing discovery Father sought, Mother testified that the children had

       been covered by insurance through her employer up until three months earlier

       and had been on Medicaid or the Healthy Indiana plan since then. Id. at 42.

       She indicated she could provide Father the insurance cards in a couple of days.

       After further discussion, the court stated: “[W]e’re not at trial, we’re just, I’m

       just trying to do a little case management while we’re all here anyway.” Id. at

       70. Upon questioning by the court, Father stated that he was not working, was

       “off unemployment, but that will be resolved in the next week,” and that he

       was looking for work. Id. at 102. Mother stated that she was working at a

       hospital earning $13.50 per hour, worked thirty hours per week, and paid $40

       per week to a childcare provider. The court then passed out a Child Support

       Obligation Worksheet “based on the information that was just provided under




       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 7 of 28
       oath to the Court.” Id. at 105. The following exchange occurred between the

       court and Father:


               THE COURT: . . . Sir, I did impute you at full time minimum
               wage income as you are able bodied and capable of work. Uh, I
               did not compute any other income. Now, this is temporary in
               the truest sense of the word, okay, meaning it will be effective
               today. The matter of retroactivity and what support should be on
               a longer term basis going forward or retroactive will be still be
               decided by the Court at a future date. This is simply to, uh,
               provide support between now and the time the Court enters a
               more permanent order. I will also enter a temporary order
               regarding parenting time. Father will have parenting time for
               two nights every other weekend – thank you – as is the current
               schedule, as well as one midweek parenting time. I am not
               ordering standard Indiana Parenting Time Guidelines right now,
               but this is going to be, again, just like the child support order
               temporary in the truest sense of the word, meaning we will
               basically ignore what the Court just did when we decide this in
               the future. I believe this will not prejudice [Father] as the
               extended parenting time would not even necessarily come into
               play because the Court anticipates holding a hearing and entering
               a permanent order in the immediate future. Does that make
               sense to you, sir?

               [Father]: That makes sense.


       Id. at 105-106.


[15]   On March 7, 2017, the court entered an order scheduling an evidentiary hearing

       on all pending issues for May 9, 2017, sustaining Mother’s objection to Father’s

       request for production of documents for her attendance records at work as well

       as cellular phone services providers’ records, denying Father’s request for an


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 8 of 28
       interlocutory appeal, noting that GAL Artusi reported that he will have a

       supplemental report completed within thirty days, and ordering Father to meet

       with GAL Artusi on March 7, 2017. The order also stated that Father was to

       pay the temporary amount of $79 per week child support effective March 2,

       2017, and that, on a temporary basis, he would have parenting time two

       overnights every other weekend and one midweek non-overnight.


[16]   Father subsequently filed a subpoena duces tecum for Mother’s college and

       clinical schedule, a Motion to Compel Discovery, and a motion requesting the

       court to vacate its March 7, 2017 order pursuant to Trial Rule 60(B).


[17]   On April 20, 2017, the court held a status hearing, the parties discussed

       discovery, Father indicated he was still waiting for a more specific work

       schedule from Mother, and the court ordered Mother to turn over a work

       schedule within seven days. Father noted his request for a continuance, and the

       court stated that it did not think it would be in the children’s best interests to

       delay trial any further, that Father could have “brought a lot of those matters to

       the Court long before and . . . chose not to,” and that the court had mentioned

       at the last hearing that Father proceeding without counsel was a bad idea. Id. at

       145. The court asked Father if he was working, and he replied: “I will be

       working in the next couple weeks temporary . . . .” Id. at 146. That same day,

       the court entered an order denying Father’s request to continue the trial and

       confirming the evidentiary hearing scheduled for May 9, 2017.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 9 of 28
[18]   On April 24, 2017, Father filed a motion for continuance alleging in part that a

       medical care provider informed him that “once the medical record

       authorization form is complete, there will be a three (3) to six (6) week

       turnaround time for Father to receive copies of the medical records.”

       Appellant’s Appendix Volume V at 26. In a supplemental report dated April

       25, 2017, GAL Artusi indicated he interviewed Father’s brother, David Richter

       (“David”), and Mother’s sister, Gabby Sexton (“Gabby”), and again

       recommended that Father undergo an initial intake with Oaklawn or another

       equivalent facility.


[19]   On May 8, 2017, Father filed a motion to compel discovery referencing his

       subpoena duces tecum for Mother’s college and clinical schedule and another

       motion for a continuance in which he alleged that he requested a copy of the

       investigation file pursuant to Ind. Code § 31-17-2-12(c)(1)(2)(3) on March 23,

       2017, and that he finally received the information requested on May 5, 2017.


[20]   On May 9, 2017, the court held a hearing, denied Father’s motion to compel,

       and denied Father’s motion for continuance. GAL Artusi testified regarding

       his concerns with Father. Mother testified that she lived with Father until

       December 2015 and removed herself and the children from that situation

       because there were episodes of paranoia and delusions and a history of

       domestic violence. She testified that she was employed as a phlebotomist and a

       server and was in the nursing program at Bethel College, that she was always

       the primary caregiver, that she found a tape recorder in their apartment when

       she lived with Father, the electrical outlets were taken apart, the smoke

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 10 of 28
       detectors were taken down, Father was looking for cameras, and he would be

       searching the carport all hours of the night. She stated that he dismantled one

       of the air fresheners and an alarm clock and that his accusations scare her.


[21]   Mother’s counsel referred to the allegations in Father’s May 27, 2016 Verified

       Emergency Petition for Physical Custody, and Mother indicated that Father

       was alleging she stole the children’s television he had bought them and that he

       had awoken to find Mother standing in his living room dressed in scrubs

       looking into his eyes before running out the back door. Mother testified that

       she did not break into Father’s house or stand over him while he was asleep and

       that such allegations show that Father has a delusional state of mind.


[22]   Father presented testimony from three of his neighbors who stated that the

       children seemed happy around him and he had not displayed any paranoia.

       Father called Mother as a witness and, when asked why she filed her petition to

       establish supervised parenting time and appointment of guardian ad litem, she

       responded that Father took the children from daycare for four days, did not

       return them, and was making accusations of “planting tape recorders, looking

       for tape recorders, looking for cameras . . . .” Transcript Volume III at 95.


[23]   Father testified, as an explanation for one of the photographs Mother

       introduced, that he “lost about forty grand cash and quarter of a million out on

       a contract” in 2014 and punched a hole in the wall when no one was home. Id.

       at 105. He also testified that he injured his hand in May 2014 and was placed

       on restricted duty work, and that he had surgery and eight months of physical


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 11 of 28
       therapy and quit working on “January 1st of 2015.” Id. at 128. He stated that

       he “worked there until the 1st of January, 2016” and “since then I’ve been going

       through . . . a workmans comp battle . . . .” Id. at 129. He testified that his

       hand was “getting better,” he was starting a seasonal job the next week, and

       “they’re working around my school schedule.” Id. at 130.


[24]   Father addressed his financial stability and stated: “My bills are paid, I’ll take

       care of myself, I’ll be back to work in a week and I’ll be able to provide

       whatever I have to for my children.” Id. at 131. He testified that he was a full-

       time student and that Bethel College was more than $14,000 a semester and he

       had attended Bethel since the previous fall. He stated he had been an

       electrician in three or four factories and denied taking apart the alarm clock or

       air freshener. He also stated that the statements attributed to his mother and

       brother in GAL Artusi’s report were fabricated because his mother owes him

       over $100,000 and he and his brother “don’t get along.” Id. at 172. On

       redirect, Father testified that his financial aid covers his tuition “100 percent out

       of one semester for half of a class. . . . [I]t costs me between two and five

       hundred dollars a year, it’s like three something a year to go to school at

       Bethel.” Id. at 174. Father stated that he signed a settlement agreement for his

       worker’s compensation, and the court admitted a letter from an attorney for

       Father’s employer which stated that he had agreed to settle for $5,500.


[25]   On September 12, 2017, the court entered an order that: confirmed Father as

       the father of G.R. and E.R.; granted Mother primary physical custody; ordered

       Father to undergo a psychological assessment and follow-up with any treatment

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 12 of 28
       recommendations; found Mother’s testimony to be more compelling than

       Father’s; found that Father’s filings had been repetitive, frivolous, and invasive;

       granted a temporary award of joint legal custody to Mother and Father to

       become permanent following Father’s compliance with the psychological

       assessment; ordered Father to pay $79 per week in child support plus $21 per

       week on the arrearage and $1,000 out of the proceeds he receives from his

       worker’s compensation settlement; ordered Father to notify Mother’s counsel

       when he receives the settlement, the total amount he receives, and to disclose

       where the rest of the money is spent; and ordered Father to pay Mother’s

       counsel $6,778.75 based on the volume and nature of Father’s filings.


                                                    Discussion

[26]   Before addressing Father’s arguments, we note that Mother did not file an

       appellee’s brief. When an appellee fails to submit a brief, we do not undertake

       the burden of developing arguments, and we apply a less stringent standard of

       review, that is, we may reverse if the appellant establishes prima facie error.

       Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was

       established so that we might be relieved of the burden of controverting the

       arguments advanced in favor of reversal where that burden properly rests with

       the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002).

       Questions of law are still reviewed de novo. McClure v. Cooper, 893 N.E.2d 337,

       339 (Ind. Ct. App. 2008).


                                                          I.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 13 of 28
[27]   The first issue is whether the trial court abused its discretion in ordering Father

       to pay attorney fees. Father argues that he was unemployed for a period of time

       but has since gained employment which is less than the income Mother earns,

       he suffered a work-related injury in May of 2014 making it difficult for him to

       obtain stable high-paying work without a college degree, he has incurred severe

       financial hardships due to Mother’s initiation of this action, and Mother has

       refused to provide him with certain requested information resulting in him filing

       subpoenas duces tecum.


[28]   Generally, Indiana has consistently followed the American Rule in which both

       parties pay their own fees. Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d

       806, 815-816 (Ind. 2012). In the absence of statutory authority or an agreement

       between the parties to the contrary—or an equitable exception—a prevailing

       party has no right to recover attorney fees from the opposition. 3 Id. at 816.


[29]   Father cites Ind. Code § 34-52-1-1, which provides:


               (a) In all civil actions, the party recovering judgment shall
               recover costs, except in those cases in which a different provision
               is made by law.

               (b) In any civil action, the court may award attorney’s fees as part
               of the cost to the prevailing party, if the court finds that either
               party:




       3
         There are three well-established common-law exceptions to the American Rule: the “obdurate behavior”
       exception, the “common fund” exception, and the “private attorney general” exception. Indiana embraces
       the first two of these and not the third. Loparex, LLC, 964 N.E.2d at 816 n.5.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018     Page 14 of 28
                        (1) brought the action or defense on a claim or defense that
                        is frivolous, unreasonable, or groundless;

                        (2) continued to litigate the action or defense after the
                        party’s claim or defense clearly became frivolous,
                        unreasonable, or groundless; or

                        (3) litigated the action in bad faith.

[30]   Pursuant to Ind. Code § 31-14-18-2(a)(2), the trial court in a paternity action

       may order a party to pay a reasonable amount for attorney fees incurred by the

       other party. In making such an award, the court should consider the parties’

       resources, their economic conditions, their respective earning abilities, and

       other factors that bear on the reasonableness of the award. In re Paternity of

       S.A.M., 85 N.E.3d 879, 890 (Ind. Ct. App. 2017). The court may also consider

       any misconduct by one party that causes the other party to directly incur fees.

       Id. See also Ind. Code § 31-16-11-1 (providing that a trial court may periodically

       order a party to a child support proceeding to pay a reasonable amount for

       attorney fees); Ind. Code § 31-17-7-1 (same for proceedings for modification of

       custody and parenting time).


[31]   The trial court ordered Father to pay Mother’s attorney fees accrued following

       the withdrawal of his counsel “[b]ased on the volume and nature of Father’s

       filings.” Appellant’s Appendix Volume V at 69. The record reveals that Father

       filed numerous pro se motions and petitions following the withdrawal of his

       attorney which required Mother to incur attorney fees. We note that Father

       failed to appear for the December 8, 2016 hearing, at which the court dismissed

       Father’s August 9, 2016 motion with prejudice. During the May 9, 2017

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 15 of 28
       hearing, the court referenced the significant amount of time Father had to serve

       discovery requests and stated that it did not believe the information Father

       sought would help the court make a decision. In light of Father’s numerous

       motions and petitions and under the circumstances, we cannot say the trial

       court abused its discretion by ordering Father to pay Mother’s attorney fees

       following the withdrawal of his counsel.


                                                         II.


[32]   The next issue is whether the trial court erred in ordering Father to undergo a

       psychological examination. Father asserts that no good cause was ever

       established and that Ind. Trial Rule 35 limits an examination to a physician and

       the court erroneously ordered him to undergo a psychological assessment at

       Oaklawn or another community health service provider. He also asserts that

       the order to release any potential medical records or treatments to the guardian

       ad litem and Mother is a direct violation of his physician-patient privilege and

       Ind. Code §§ 16-39-3-3, -4, -5, and -7.


[33]   Ind. Trial Rule 35(A) provides:


               When the mental or physical condition (including the blood
               group) of a party, or of a person in the custody or under the legal
               control of a party, is in controversy, the court in which the action
               is pending may order the party to submit to a physical or mental
               examination by a suitably licensed or certified examiner or to
               produce for examination the person in his custody or legal
               control. The order may be made only on motion for good cause
               shown and upon notice to the person to be examined and to all
               parties and shall specify the time, place, manner, conditions, and

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 16 of 28
               scope of the examination and the person or persons by whom it is
               to be made.


[34]   In his letter dated January 6, 2017, GAL Artusi wrote that he interviewed

       Mother who noted some major concerns about Father and his mental stability.

       His letter stated that “[a]s [the children] are very young, both under the age of

       5, if Father is experiencing issues with paranoia, bi-polar, depression or fits of

       anger then this directly impacts the children and their mental and physical

       health moving forward.” Appellant’s Appendix Volume V at 75. GAL Artusi

       also stated that he found it hard to believe the truthfulness and veracity of a

       number of statements made to him by Father, that he shared many concerns

       with Mother relating to Father’s current mental stability, and that “[a]t the end

       of the day I believe that my analysis is spot on that Father is suffering from

       some type of mental deficiency or illness.” Id. at 80.


[35]   In his April 25, 2017 report, GAL Artusi indicated that he spoke to Father’s

       brother, David, who “talked about the fact that [Father] has always had a sense

       of paranoia in his life,” and told him that a court had previously ordered a

       psychological evaluation, and that Father did not follow through. Id. at 86.

       GAL Artusi reported that he spoke with Father’s mother who was very

       reluctant to speak about the case but confirmed that there was a court

       proceeding in Illinois approximately ten years ago and that Father “twisted her

       actions to be evil and that this was not her intent at all.” Id. at 87. GAL Artusi

       also reported that he spoke with Mother’s sister, Gabby, who reiterated a



       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 17 of 28
       number of things he heard from Mother and David and said that Father was

       paranoid and “thinks someone is out to get him.” Id. at 88.


[36]   At the May 9, 2017 hearing, GAL Artusi was questioned about his interviews

       with David, Gabby, and Mother, and stated his concern for the children when

       they are around Father.


[37]   We observe that the court ordered that the psychological assessment be marked

       and filed as confidential. Based upon the record, including GAL Artusi’s

       testimony and reports as well as Mother’s testimony, which the court found

       more credible than Father’s testimony, and considering the best interests of the

       children, we cannot say that reversal is warranted.


                                                         III.


[38]   The next issue is whether the court abused its discretion in determining Father’s

       support obligation. Father argues that he is a full-time student and was

       unemployed for six months in 2016 due to work restrictions from an injury, and

       that his support obligation should be calculated on his actual gross income. He

       also argues that the trial court abused its discretion in ordering him to disclose

       to Mother’s counsel where the remainder of his worker’s compensation

       settlement is spent. He asserts that Ind. Trial Rule 26(C) protects him from a

       fishing expedition, that this information is irrelevant, and that Mother’s counsel

       never requested the disclosure of this information.


[39]   Ind. Code § 31-16-6-1 provides:


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 18 of 28
               (a) In an action for . . . child support under IC 31-16-2, or
               establishment of paternity under IC 31-14, the court may order
               either parent or both parents to pay any amount reasonable for
               support of a child, without regard to marital misconduct, after
               considering all relevant factors, including:

                        (1) the financial resources of the custodial parent;

                        (2) the standard of living the child would have enjoyed if:

                                (A) the marriage had not been dissolved;

                                (B) the separation had not been ordered; or

                                (C) in the case of a paternity action, the parents had
                                been married and remained married to each other;

                        (3) the physical or mental condition of the child and the
                        child’s educational needs; and

                        (4) the financial resources and needs of the noncustodial
                        parent.

[40]   Decisions concerning the payment of child support rest within the sound

       discretion of the trial court. Douglas v. Spicer, 8 N.E.3d 712, 714-715 (Ind. Ct.

       App. 2014), reh’g denied. On review, we will reverse a trial court’s decision in

       child support matters where we find that there was an abuse of discretion or if

       the trial court’s determination on the issue is contrary to law. Id.


[41]   Child Support Guideline 3A addresses the definition of weekly gross income for

       purposes of determining child support. Paragraph 1 of Child Support Guideline

       3A provides that “‘weekly gross income’ is defined as actual weekly gross

       income of the parent if employed to full capacity, potential income if

       unemployed or underemployed, and imputed income based upon ‘in-kind’

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       benefits” and “includes, but is not limited to, income from salaries, wages, . . .

       social security benefits, workmen’s compensation benefits, unemployment

       insurance benefits, disability insurance benefits, gifts, inheritance, . . . .”


[42]   Paragraph 3 of Child Support Guideline 3A provides:


               Unemployed, Underemployed and Potential Income. If a court finds a
               parent is voluntarily unemployed or underemployed without just
               cause, child support shall be calculated based on a determination
               of potential income. A determination of potential income shall
               be made by determining employment potential and probable
               earnings level based on the obligor’s work history, occupational
               qualifications, prevailing job opportunities, and earnings levels in
               the community. If there is no work history and no higher
               education or vocational training, the facts of the case may
               indicate that Weekly Gross Income be set at least at the federal
               minimum wage level.


[43]   Paragraph 2 of the Commentary to Child Support Guideline 3A provides in

       part: “Potential income may be determined if a parent has no income, or only

       means-tested income, and is capable of earning income or capable of earning

       more. Obviously, a great deal of discretion will have to be used in this

       determination.”


[44]   The record does not contain a copy of the worksheet referred to by the court.

       Transcript Volume III at 130. Father addressed his financial stability and

       stated: “My bills are paid, I’ll take care of myself, I’ll be back to work in a week

       and I’ll be able to provide whatever I have to for my children.” Id. at 131. He

       indicated that he was going to start working at a lawn care company earning ten


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 20 of 28
       dollars per hour and Jake’s Fireworks earning nine dollars per hour and would

       work between thirty and forty hours between both jobs. He stated that he was

       paying rent on his house and that “There was money that I had . . . and my

       dad’s been loaning me some money as well until my injury got to the point

       where I could work again.” Id. at 159. On redirect, Father stated:


               I’m not objecting to paying support. You order me to pay
               support, I’ll pay support. I – I addressed with him that – And
               anything that from the order on is owed will be paid the minute I
               get it this check and when it comes to arrearage I don’t know
               how that works. So if it’s coming out per week I can do it that
               way and, and then make another large sum payment towards it
               so she, she can get some of it back right away. I don’t know, but
               I can guarantee from the court order on is paid and I’ll be paying
               going forward and then whatever arrearage is tacked on to that
               but I will make an additional payment. The tuition at Bethel that
               you brought up. Yes, Bethel is expensive, but my financial aid
               covers my Bethel tuition 100 percent out of one semester for half
               of a class. So to put it in the Court’s perspective it costs me
               between two and five hundred dollars a year, it’s like three
               something a year to go to school at Bethel.


       Id. at 174.


       We cannot say that the trial court abused its discretion in ordering that Father

       pay child support in an amount calculated based upon the federal minimum

       wage.


[45]   To the extent Father challenges the court’s order that he produce an accounting

       related to his worker’s compensation settlement, we cannot say that such an

       accounting order is not a legitimate exercise of the trial court’s authority to

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       make inquiry regarding the financial resources available to the parties for

       support. See Ind. Code § 31-16-6-1 (providing that “the financial resources and

       needs of the noncustodial parent” is a relevant factor in determining a

       reasonable amount for child support”). Under the circumstances, the court did

       not abuse its discretion in entering the accounting order.


                                                         IV.


[46]   The next issue is whether the trial court erred by denying Father’s motion for

       change of judge. Ind. Trial Rule 76 provides in part:


               (B) In civil actions, where a change may be taken from the judge,
               such change shall be granted upon the filing of an unverified
               application or motion without specifically stating the ground
               therefor by a party or his attorney. Provided, however, a party
               shall be entitled to only one [1] change from the judge. After a
               final decree is entered in a dissolution of marriage case or
               paternity case, a party may take only one change of judge in
               connection with petitions to modify that decree, regardless of the
               number of times new petitions are filed. The Rules of Criminal
               Procedure shall govern proceedings to enforce a statute defining
               an infraction.

               (C) In any action except criminal no change of judge or change
               of venue from the county shall be granted except within the time
               herein provided. Any such application for change of judge (or
               change of venue) shall be filed not later than ten [10] days after
               the issues are first closed on the merits. Except:

                        (1) in those cases where no pleading or answer may be
                        required to be filed by the defending party to close issues
                        (or no responsive pleading is required under a statute),
                        each party shall have thirty [30] days from the date the


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                        case is placed and entered on the chronological case
                        summary of the court as having been filed . . . .


[47]   On January 20, 2016, Mother filed a Petition to Establish Rights Incident to

       Paternity Pursuant to Ind. Code § 16-37-2-2.1. Father did not file his motion

       for change of judge until December 30, 2016.4 Father had only thirty days in

       which to file his request pursuant to Ind. Trial Rule 76(C) from the date the

       case was entered on the chronological case summary in January 2016.

       Accordingly, we cannot say that reversal is warranted on this basis.


                                                           V.


[48]   The next issue is whether the trial court erred in determining the custody of

       children. The court’s findings control as to the issues they cover and a general

       judgment will control as to the issues upon which there are no findings. Yanoff

       v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made

       findings of fact, we apply the following two-tier standard of review: whether the

       evidence supports the findings of fact, and whether the findings of fact support

       the conclusions thereon. Id. Findings will be set aside if they are clearly

       erroneous. Id. Findings are clearly erroneous only when the record contains no

       facts to support them either directly or by inference. Id. A judgment is clearly

       erroneous if it applies the wrong legal standard to properly found facts. Id. To




       4
         The motion is titled “MOTION TO CHANGE JUDGE” with the handwritten word “Amended” prior to
       the title. Appellant’s Appendix Volume IV at 89. In his brief, Father does not assert that any motion for
       change of judge was filed earlier.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018       Page 23 of 28
       determine that a finding or conclusion is clearly erroneous, our review of the

       evidence must leave us with the firm conviction that a mistake has been made.

       Id. A general judgment entered with findings will be affirmed if it can be

       sustained on any legal theory supported by the evidence. Id.


[49]   A trial court’s custody determination is afforded considerable deference as it is

       the trial court that sees the parties, observes their conduct and demeanor, and

       hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945-946 (Ind.

       Ct. App. 2006). Thus, on review, we will not reweigh the evidence, judge the

       credibility of witnesses, or substitute our judgment for that of the trial court. Id.

       at 946. We will reverse the trial court’s custody determination only if it is

       clearly against the logic and effect of the facts and circumstances or the

       reasonable inferences drawn therefrom. Id.


[50]   The standard for an initial custody determination is set forth in Ind. Code § 31-

       14-13-2, which provides:


               The court shall determine custody in accordance with the best
               interests of the child. In determining the child’s best interests,
               there is not a presumption favoring either parent. The court shall
               consider all relevant factors, including the following:

                        (1) The age and sex of the child.

                        (2) The wishes of the child’s 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:

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                                (A) the child’s parents;

                                (B) the child’s siblings; and

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

               (5) The child’s adjustment to home, school, and community.

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

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

               (8) Evidence that the child has been cared for by a de facto
               custodian, and if the evidence is sufficient, the court shall
               consider the factors described in section 2.5(b) of this chapter.


[51]   At the May 9, 2017 hearing, GAL Artusi testified that he continued to believe

       that granting Mother physical custody of the children was in their best interests.

       When asked by Father if he thought it would be appropriate to have joint legal

       and physical custody, GAL Artusi answered: “Currently, no.” Transcript

       Volume II at 203. Based upon the record, we conclude that the trial court did

       not err in granting Mother primary physical custody of the children and a

       temporary award of joint legal custody to Mother and Father with the grant

       becoming permanent following Father’s compliance with the order.


                                                         VI.


[52]   The next issue is whether the court abused its discretion in denying Father a

       continuance. Father points to his subpoena duces tecum for Mother’s college

       and clinical schedule and argues that these requested records “were material to


       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 25 of 28
       prove or disprove a specific fact and/or a particular element in issue, pertaining

       to the wellbeing of the children while in the care of a third party without the

       presence of Mother and/or Father.” Appellant’s Brief at 42. He contends that

       he was seeking to prove or disprove his “right of first refusal and possible

       endangerment of children in the care of a third party.” Id. at 43. He also argues

       that he did not receive GAL Artusi’s case file until May 5, 2017, he was

       required to receive the file at least ten days prior to trial which occurred on May

       9, 2017, and that GAL Artusi’s actions did not give him adequate time to

       prepare a defense or serve subpoenas to any persons interviewed by GAL

       Artusi.


[53]   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 Cty. 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 will be deemed to be an abuse of discretion. Id. No abuse of




       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 26 of 28
       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.


[54]   The record reveals that delays were attributable to Father, who failed to appear

       at the December 8, 2016 hearing, and GAL Artusi testified regarding his

       difficulties in receiving responses from Father. Indeed, in March 2017, the

       court ordered Father to meet with GAL Artusi. As pointed out by the trial

       court, Mother filed her initial petition on January 20, 2016, and Father did not

       file his subpoena duces tecum for her college and clinical schedule until March

       24, 2017. At the April 20, 2017 hearing, the court stated that Father could have

       “brought a lot of those matters to the Court long before and . . . chose not to.”

       Transcript Volume II at 145.


[55]   To the extent Father asserted in his May 8, 2017 motion for continuance, filed a

       day before the hearing, that he requested a copy of the “investigation file and

       pertaining information” pursuant to Ind. Code § 31-17-2-12(c)(1)(2)(3) on

       March 23, 2017, and that he finally received the information requested on May

       5, 2017, Appellant’s Appendix Volume V at 50, we observe that Ind. Code § 31-

       17-2-12(c) provides:


               The court shall mail the investigator’s report to counsel and to
               any party not represented by counsel at least ten (10) days before
               the hearing. The investigator shall make the following available
               to counsel and to any party not represented by counsel:

                        (1) The investigator’s file of underlying data and reports.

                        (2) Complete texts of diagnostic reports made to the
                        investigator under subsection (b).
       Court of Appeals of Indiana | Memorandum Decision 71A03-1710-JP-2394 | August 16, 2018   Page 27 of 28
                        (3) The names and addresses of all persons whom the
                        investigator has consulted.


[56]   GAL Artusi’s report dated January 6, 2017, includes a certificate of service

       indicating that a copy of the report was served by mail on Father. Father does

       not allege that he did not receive this report. Indeed, he filed a motion for

       enlargement of time to respond to the report. GAL Artusi’s supplemental

       report dated April 25, 2017, contained a certificate of service asserting that a

       copy of the report was served by mail on Father. Again, father does not allege

       he did not receive this report. To the extent he did not receive the

       “investigation file and pertaining information” until May 5, 2017, Father does

       not develop a cogent argument that any information from the “investigation file

       and pertaining information” was not already in GAL Artusi’s reports or explain

       how he was prejudiced. Under the circumstances, we conclude that the trial

       court did not abuse its discretion in denying Father’s motion for a continuance.


                                                   Conclusion

[57]   For the foregoing reasons, we affirm the trial court’s order.


[58]   Affirmed.


       Bailey, J., and Crone, J., concur.




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