                                                                                 FILED
                                                                             Feb 27 2019, 5:41 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Cody Cogswell                                              David P. Murphy
      Cogswell & Associates                                      David P. Murphy & Associates,
      Fishers, Indiana                                           P.C.
                                                                 Greenfield, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Micayla N. Smith,                                          February 27, 2019
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 18A-DR-297
              v.                                                 Appeal from the Madison Circuit
                                                                 Court
      Nathan W. McPheron,                                        The Honorable Angela Warner
      Appellee-Respondent.                                       Sims, Judge
                                                                 The Honorable Kevin M. Eads,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 48C01-1603-DR-205



      Najam, Judge.


                                        Statement of the Case
[1]   Micayla N. Smith (“Mother”) appeals the trial court’s modification of physical

      custody over her minor child, G.M. (“Child”), from Mother to Nathan



      Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019                           Page 1 of 12
McPheron (“Father”). Mother raises five issues for our review,1 which we

restate as the following four issues:


         1.        Whether the trial court’s modification order is clearly
                   erroneous.


         2.        Whether the trial court abused its discretion when it
                   declined to hold Father in contempt for his child-support
                   arrearage.


         3.        Whether trial court abused its discretion when it declined
                   to award Mother attorney’s fees based on Father’s child-
                   support arrearage.


         4.        Whether the trial court abused its discretion when it
                   denied Mother’s request to proceed in forma pauperis on
                   appeal.




1
  In his brief, Father asserts that Mother’s notice of appeal was not timely filed and, as such, she has forfeited
her appeal. See Ind. Appellate Rule 9(A)(5). We agree with Father that Mother’s notice of appeal was not
timely filed; the trial court’s final judgment was noted in the court’s chronological case summary on January
9, 2018, which made Mother’s notice of appeal due on Thursday, February 8, 2018. App. R. 9(A)(1).
However, Mother did not file her notice of appeal until February 12, 2018. Thus, she did not timely file her
notice of appeal.
         Father made this argument to our motions panel, and our motions panel initially agreed to dismiss
Mother’s appeal due to her untimely filing. However, on Mother’s petition for rehearing, our motions panel
agreed to vacate its dismissal order and reinstate her appeal notwithstanding her procedural default. As our
Supreme Court has emphasized, an untimely notice of appeal does not go to this Court’s jurisdiction to hear
the appeal, and, notwithstanding an untimely notice of appeal, we may in our discretion hear an appeal on
the merits. Gr. J. v. Ind. Dep’t of Child Servs. (In re D.J.), 68 N.E.3d 574, 578-80 (Ind. 2017).
          Although a writing panel of this Court has “inherent authority to reconsider any decision while an
appeal remains in fieri,” we are “reluctant to overrule orders decided by the motions panel.” John C. &
Maureen G. Osborne Revocable Family Trust v. Town of Long Beach, 78 N.E.3d 680, 692 (Ind. Ct. App. 2017),
trans. denied; see also Moriarity v. Ind. Dep’t of Nat. Res., 113 N.E.3d 614, 623 (Ind. 2019) (noting that Indiana’s
appellate courts prefer to resolve cases on their merits). Accordingly, we decline Father’s request to once
again consider this issue.

Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019                                    Page 2 of 12
[2]   We affirm the trial court’s judgment on the first three issues but reverse the trial

      court’s denial of Mother’s motion to proceed in forma pauperis.


                                   Facts and Procedural History2
[3]   In March of 2016, Mother filed a petition for the dissolution of her marriage to

      Father. Child was the only child of the marriage and was just shy of three years

      old at the time Mother filed the petition for dissolution. In June, the trial court

      entered its decree of dissolution. In the decree, the court awarded primary

      physical custody over Child to Mother and ordered Father to pay $85 per week

      in child support.


[4]   In May of 2016, Mother lived in a third-floor apartment with her boyfriend,

      Brandon George, and George’s minor child in Anderson. On May 22,3

      neighbors called police to report that Child had been left unattended on the

      apartment’s balcony. Officers arrived and, later, case managers with the

      Indiana Department of Child Services investigated. Mother admitted to family

      case manager William Griffin that she had left Child on the third-floor balcony

      unattended. While Child was on the balcony, Mother and George were




      2
        We note that, contrary to our appellate rules, Mother’s Statement of Facts in her brief on appeal is not
      “stated in accordance with the standard of review appropriate to the judgment or order being appealed.”
      App. R. 46(A)(6)(b). We also note that Father’s Statement of Facts in his brief does not include citations to
      the record on appeal or an appendix, which is contrary to Indiana Appellate Rule 46(A)(6)(a). The parties’
      failures to adhere to our appellate rules have impeded our review of this appeal.
      3
        Although the May 22, 2016, incident occurred prior to the decree of dissolution, there is no dispute in this
      appeal that Father did not have notice of the incident at the time of the decree as apparently case managers
      for the Indiana Department of Child Services were unable to locate him.

      Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019                               Page 3 of 12
      “sleeping” after they had both smoked marijuana. Tr. Vol. I at 247-48. George

      admitted that “he was a chronic . . . user” of marijuana. Id. at 248.


[5]   In March of 2017, Mother and George had moved into a rental house together

      with Child and George’s minor child. On March 27, Child was found

      unattended and wandering on streets about three or four blocks from Mother’s

      residence. When Child was returned to Mother, she admitted that she had been

      sleeping after having smoked marijuana and was unaware that Child had left

      the residence.


[6]   Father filed an emergency petition for modification of physical custody over

      Child following the March 2017 incident. The trial court held an initial fact-

      finding hearing shortly thereafter, after which the court concluded that no

      emergency existed but that the court would continue to hear Father’s request to

      modify custody on a nonemergency basis. After several subsequent fact-finding

      hearings, on September 22 the court granted Father’s request for modification

      of physical custody over Child.


[7]   In its modification order, the court found “Mother’s . . . testimony . . . that she

      could be around marijuana and/or people who use it without feeling any urge

      to use herself” to be inconsistent with “fundamental tenants of substance abuse

      therapy” and “disturbing.” Appellant’s App. Vol. 2 at 13-14. The court also

      disapproved of Father having “gone for extended periods without paying

      support . . . .” Id. at 14. And the court noted that “each parent has made

      conscious decisions which have clearly not been in [Child’s] best interest. Both


      Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019       Page 4 of 12
      parties have demonstrated a level of immaturity . . . .” Id. Nonetheless, the

      court concluded that, in light of the fact that “Mother has twice had [Child]

      escape unattended, both times after she and her boyfriend had used

      substances,” there had been “a substantial and continuing change in

      circumstances” to justify modification of physical custody over Child from

      Mother to Father. Id. at 15.


[8]   The court initially reserved judgment on the issue of Father’s outstanding child

      support arrearage, but, on January 8, 2018, the court found that Father owed

      $1,080 in back child support. Following the January 8 judgment, Mother

      moved the trial court to find her indigent for purposes of an appeal. The trial

      court declined and instead found that Mother was voluntarily unemployed as

      she had left paid employment to work as an unpaid intern in support of a new

      career path. This appeal ensued.


                                      Discussion and Decision
                         Issue One: Modification of Physical Custody

[9]   On appeal, Mother first asserts that the trial court erred when it modified

      physical custody over Child from Mother to Father. “A child custody

      determination is very fact-sensitive.” Steele-Giri v. Steele (In re Marriage of Steele-

      Giri), 51 N.E.3d 119, 125 (Ind. 2016). Where, as here, the trial court’s

      judgment is supported by findings of fact following an evidentiary hearing, we

      review the trial court’s judgment under our clearly erroneous standard of




      Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019           Page 5 of 12
       review. E.g., id. “Findings of fact are clearly erroneous when the record lacks

       any evidence or reasonable inferences from the evidence to support them.” Id.


[10]   “[I]n order for the trial court to modify custody, it must find both that: 1)

       modification is in the best interests of the child; and 2) there is a substantial

       change in one or more of the factors enumerated in [Indiana Code Section 31-

       17-2-8 (2018)].” Id. at 127. As relevant here, Indiana Code Section 31-17-2-

       8(6) directs the trial court to consider “[t]he mental and physical health of all

       individuals involved.”


[11]   Mother first argues that the trial court’s modification order is clearly erroneous

       because the court denied Father’s request for an emergency modification but

       continued to hear Father’s request on a nonemergency basis. Relatedly,

       Mother asserts that there was no change in circumstances in the interval

       between the court finding that no emergency existed and later determining that

       a modification was nonetheless justified. We conclude that Mother’s

       arguments are not supported by cogent reasoning, and, thus, we do not consider

       them. Ind. Appellate Rule 46(A)(8)(a).


[12]   Mother also asserts that Child did not “suffer any harm while in [Mother’s]

       care.” Appellant’s Br. at 12. Mother’s assertion is not supported by the record

       most favorable to the trial court’s judgment. Contrary to Mother’s assertion,

       Child was twice left unattended by Mother in areas that posed dangers to him,

       namely, a third-floor balcony and local streets several blocks from Mother’s




       Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019        Page 6 of 12
       residence. Mother’s argument, insofar as it is here supported by cogent

       reasoning, is contrary to our standard of review, and we reject it.


[13]   Mother next argues that the trial court’s modification order is clearly erroneous

       because, in some appeals from child-in-need-of-services and termination-of-

       parental-rights determinations, we have held that isolated uses of marijuana

       that do not endanger the child are insufficient to support those determinations.

       But Mother cites no authority for support of her apparent position that a trial

       court errs as a matter of law when, as here, the court modifies custody from one

       parent to another on the basis of the first parent’s repeated drug use, which use

       resulted in endangerment to the child. Accordingly, we conclude that Mother

       has also not preserved this issue for appellate review. App. R. 46(A)(8)(a).


[14]   Mother also argues that custody with Father is not in Child’s best interests. In

       support of this argument, Mother relies on the evidence before the trial court,

       much of which the court expressly acknowledged in its modification order, that

       Father is far from perfect and that Mother has played a positive role in Child’s

       life. But Mother’s argument on appeal is merely a request to have this Court

       reweigh evidence that the trial court has already weighed and considered,

       which we will not do. We cannot say that the trial court’s order modifying

       physical custody over Child from Mother to Father is clearly erroneous, and,

       thus, we affirm.




       Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019     Page 7 of 12
                                              Issue Two: Contempt

[15]   Mother next asserts that the trial court should have held Father in contempt for

       his failure to timely pay child support.4 As the Indiana Supreme Court has

       made clear: “Like with the custody determination, trial courts are given great

       deference in contempt actions. Crucial to the determination of contempt is the

       evaluation of a person’s state of mind, that is, whether the alleged

       contemptuous act was done willfully.” Steele-Giri, 51 N.E.3d at 129. We

       review the trial court’s judgment on whether to impose a sanction of contempt

       on a party for an abuse of discretion. E.g., id. We will consider the record only

       as it is most favorable to the trial court’s judgment, and we may not substitute

       our judgment for that of the trial court. Id.


[16]   Here, the trial court considered Mother’s request to hold Father in contempt for

       his child-support arrearage to be unjustifiably heavy-handed. As the court

       stated to the parties:


                I view [the] request for a show cause [order] would sort of be[,]
                the horse is already out of the corral on that. . . . We’ve got the
                submissions by each party as to the [amount of the arrearage,
                which had been in dispute, and] I’m not sure what it benefits us
                at this point to continue to beat that horse to death in light of
                that . . . .




       4
          Father’s response on appeal that Mother failed to preserve this issue for appellate review because she raised
       it to the trial court for the first time after the September 22, 2017, Order but before the January 8, 2018, Order
       is not supported by cogent reasoning. Likewise, we decline to consider Mother’s assertions that Father
       somehow violated the Internal Revenue Code.

       Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019                                 Page 8 of 12
       Tr. Vol. 3 at 190. As our Supreme Court has put it, “discretion means that, in

       many cases, trial judges have options.” Snow v. State, 77 N.E.3d 173, 177 (Ind.

       2017). Here, the trial court could have found Father in contempt or not in its

       discretion, and we cannot say that the trial court abused its discretion when it

       concluded to not do so.


                                      Issue Three: Attorney’s Fees

[17]   Mother next asserts that the trial court abused its discretion when it declined to

       award her attorney’s fees. The statute regarding attorney’s fees in child-support

       matters, Indiana Code Section 31-16-11-1, leaves such judgments to the trial

       court’s discretion. Martinez v. Deeter, 968 N.E.2d 799, 810 (Ind. Ct. App. 2012).

       In determining whether to award attorney’s fees, the trial court may consider,

       among other concerns, “any misconduct on the part of either of the

       parties . . . .” Id.


[18]   The matters before the trial court were originally before it on Father’s motion to

       modify custody based on Mother’s behavior, and, as explained above, the court

       agreed with Father that modification of physical custody over Child was

       justified. While the court also directed Father to pay his outstanding child-

       support arrearage, we cannot say that the court was obliged to order Father to

       pay Mother’s attorney’s fees when the court found that Mother was at least

       partly responsible for the ongoing proceedings. See, e.g., id. at 810-11; see also

       Snow, 77 N.E.3d at 177. We affirm the trial court on this issue.




       Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019        Page 9 of 12
                        Issue Four: Motion to Proceed In Forma Pauperis

[19]   Last, Mother asserts that the trial court abused its discretion when it denied her

       request to proceed in forma pauperis on appeal.5 Applications to proceed in forma

       pauperis on appeal require the applicants to “only convince the court of their

       indigency in order to have their application granted.” Campbell v. Criterion

       Group, 605 N.E.2d 150, 158-59 (Ind. 1992). “Indigency determinations present

       a subject for the sound discretion of the trial court, and a very clear case of

       abuse must be shown before this discretionary power can be interfered with” on

       appeal. Id. at 159 (citations omitted). However, “‘[a]rbitrary economic

       discrimination in the halls of justice is wrong,’” and parties should not be

       “denied, by reason of indigency, access to that appellate process which the law

       would otherwise afford.” Id. (quoting Campbell v. Criterion Group, 588 N.E.2d

       511, 518 (Ind. Ct. App. 1992), vacated).


[20]   The trial court here denied Mother’s motion to proceed in forma pauperis only on

       the ground that Mother was currently voluntarily unemployed. Father does not

       dispute that Mother is currently unpaid as an intern in the legitimate pursuit of

       a new career path, that she has no income, and that she has no assets to her

       name. Neither do the parties dispute that, prior to becoming an unpaid intern,

       Mother earned $13 per hour in her former occupation. In essence, the trial




       5
         We decline to consider Mother’s argument that the Magistrate who heard the modification and child-
       support issues, rather than the Judge, was obliged to also hear Mother’s request to proceed in forma pauperis.

       Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019                              Page 10 of 12
       court imputed Mother’s former income to her for purposes of denying Mother’s

       motion to proceed in forma pauperis.6


[21]   While the trial court has broad leeway in determining indigency, the effect of

       the trial court’s judgment here is to dissuade Mother from either pursuing a new

       career path or from pursuing her constitutional right to appeal. See Ind. Const.

       art. 7, § 6. In the child-support context, in order to impute income to a parent

       due to the parent’s voluntary unemployment the trial court must first determine

       that the parent’s voluntary unemployment is “without just cause.” Ind. Child

       Support Guideline 3(A)(3). We conclude that Mother’s voluntary

       unemployment, without a simultaneous finding that that voluntary

       unemployment is without just cause, is not a sufficient basis on which to

       support the denial of her motion to proceed in forma pauperis. Accordingly, the

       trial court abused its discretion when it denied Mother’s motion to proceed in

       forma pauperis. We reverse the trial court’s judgment on this issue and remand

       with instructions to have the costs of the preparation of the record of the

       proceedings, including the transcript, assessed as a public expense. See

       Campbell, 605 N.E.2d at 160-61.


[22]   Affirmed in part and reversed and remanded in part.




       6
         Father’s argument in support of the trial court’s judgment is only that Mother’s own actions are the
       ultimate cause for the litigation and appeal. However, our Supreme Court has expressly held that the merits
       of an appeal are not relevant to a decision on a motion to proceed in forma pauperis. Campbell, 605 N.E.2d at
       158-59.

       Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019                            Page 11 of 12
Pyle, J., and Altice, J., concur.




Court of Appeals of Indiana | Opinion 18A-DR-297 | February 27, 2019   Page 12 of 12
