MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Jul 15 2019, 6:04 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Luisa M. White                                           Richard D. Martin
Lafayette, Indiana                                       Frankfort, Indiana

Lesley A. Meade
Lafayette, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Bousum,                                          July 15, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-DR-2786
        v.                                               Appeal from the
                                                         Clinton Superior Court
Amber Bousum,                                            The Honorable Justin H. Hunter,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         12D01-1109-DR-372



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019                  Page 1 of 33
                                             Case Summary
[1]   As part of their dissolution of marriage in 2012, Michael Bousum (Father) and

      Amber Bousum (Mother) agreed to joint legal and physical custody of their

      minor son, X.B. After Father learned of inappropriate sexual conduct

      occurring in 2017 between X.B. and Mother’s then-boyfriend’s two minor

      children, Father sought sole physical custody of X.B. Father now appeals the

      trial court’s order that denied his request to modify custody, ordered him to pay

      weekly child support, and ordered him to pay a portion of Mother’s attorney

      fees. Mother requests that this court assess appellate fees against Father for

      substantive and procedural bad faith.


[2]   We affirm.


                                   Facts & Procedural History
[3]   Mother and Father were married in 2007 and are the parents of one child, X.B.,

      born in April 2008. Mother also has three older daughters, K.K. and twins,

      K.B. and F.B. In September 2011, Father filed a petition for dissolution of

      marriage. Due to contested custody, a guardian ad litem (GAL) was

      appointed, Judy Afflerbach, and she filed a report (Prior GAL Report) with the

      trial court. Thereafter, the parties entered into a Settlement Agreement that

      provided that the parties would share joint physical and legal custody of X.B.

      Because parenting time was equal and Father was paying certain expenses

      associated with X.B., the parties agreed that a deviation from the Indiana Child

      Support Guidelines was appropriate and “neither party shall pay any direct


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 2 of 33
      support obligation to the other at this time.” Appellee’s Appendix Vol. II at 5.

      The Settlement Agreement provided that when X.B. reached school age, he

      would be enrolled in the Clinton Prairie school district. The trial court

      incorporated the parties’ Settlement Agreement into the Decree of Dissolution

      and dissolved their marriage on October 29, 2012.


[4]   At the time of the dissolution, Father was dating and living with Nicole, whom

      he later married. 1 Father and Nicole moved from Colfax, Indiana, which is in

      Clinton County, to a home in Clarks Hill, Indiana, in Tippecanoe County. At

      the time of the dissolution, Mother was dating and living with a man, who had

      a criminal history and was, according to Mother, an alcoholic. Mother ended

      that relationship in 2012, and at some point thereafter began dating Justin.

      Justin lived with Mother, and he exercised his alternating weekends of

      parenting time with his two minor children, son T.H. and daughter K.H., at the

      home he shared with Mother.


[5]   On a Saturday in May 2017, nine-year-old X.B. shared with Mother that he and

      T.H, who was twelve, had engaged in sexually inappropriate behavior. T.H.’s

      eleven-year-old sister K.H. was also sometimes involved. Although X.B. asked

      Mother not to tell Father, she contacted Father that day, and they agreed to

      meet at the Frankfort office of the Indiana Department of Child Services (DCS)

      on the upcoming Monday. Mother went to the DCS office to make a report




      1
          Nicole is Father’s fourth wife.


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 3 of 33
      and was instructed she had to call the 1-800 phone number to do so, which she

      did. Father was not at the DCS office, and when Mother contacted him, he

      told Mother that he had called the police reporting a suspected rape of X.B.


[6]   Clinton County Sheriff’s Department Detective Daniel Roudebush investigated.

      At DCS’s recommendation, X.B. was forensically interviewed on May 22,

      2017, at Quintin’s House Advocacy Center. Detective Roudebush observed the

      interview. During his investigation, Detective Roudebush interviewed T.H.

      and K.H. and learned that there had been some incidents that occurred at

      Mother’s residence and another incident involving two other children at a

      neighbor’s home. Detective Roudebush learned that there appeared to have

      been ten to fifteen incidents between X.B. and T.H. and one or two more that

      also involved K.H. As to the incidents occurring at Mother’s home, police

      believed they occurred mostly at night after Mother and Justin had gone to bed,

      but a couple of instances occurred during daytime hours.


[7]   Meanwhile, believing that T.H, who was older and physically larger than X.B.,

      had been bullying X.B. and that the sexual acts, which may have included anal

      penetration, had been forced upon X.B., Father took X.B. to the emergency

      room on May 22 for examination. The emergency room physical examination

      did not reveal any issues, but at the direction of emergency room personnel,

      Father took X.P. to the family pediatrician. At that doctor’s recommendation,

      Father contacted a sexual trauma counselor, Jill Zimmer, for X.B. to begin

      counseling sessions. Father did not consult with Mother before taking X.B. to

      the emergency room, the pediatrician, or the initial meeting with Zimmer.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 4 of 33
      Mother learned of the counseling when she was informed that she needed to

      sign a release for X.B. to receive the counseling treatment.


[8]   On June 2, 2017, Father filed a Verified Petition to Modify Custody, Parenting

      Time and Child Support and Request for Expedited Hearing (Petition to

      Modify). He also filed, in a separate court and on X.B.’s behalf, a request for

      protective order against T.H. In his Petition to Modify, Father asserted, in part,

      that he took X.B. to the emergency room on May 22 after X.B. had told him

      that he was sexually assaulted by Mother’s boyfriend’s twelve-year-old son and

      that it had been ongoing for a month, that DCS had been contacted, and that

      the Clinton County Sheriff’s Department was currently investigating. Father

      further alleged:


              5. The Mother is not meeting the medical, physical and
              psychological needs of the minor child while in her care and the
              child is not thriving under the current custodial arrangement.


              6. There has been a substantial and continuing change of
              circumstances and it is now in the best interests of the minor
              child that the Father, Michael Bousum, be granted sole physical
              custody of his son.


              7. That the court change parenting time at its discretion and what
              is in the best interest of the child.


              8. That a modification in child support is warranted to reflect the
              new custodial arrangement.




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 5 of 33
       Appellant’s Appendix Vol. II at 29. In August 2017, the trial court re-appointed

       GAL Afflerbach, subject to her acceptance, and directed the GAL to prepare a

       supplemental report. GAL Afflerbach, however, declined the appointment. On

       September 26, 2017, Cynthia Harmon was appointed as GAL in the case.


[9]    After conducting an investigation, Deputy Roudebush spoke to the county’s

       chief deputy prosecutor, and it was determined that no criminal charges would

       be filed in the case, as “the activity appeared to be mutual in that it appeared to

       be exploration” and “while inappropriate,” law enforcement did not believe it

       was criminal in nature, nor did they believe that there had been a lack of

       parental supervision or neglect. Transcript Vol. 1 at 46. Detective Roudebush

       noted that, in his opinion, both parents displayed “appropriate responses,

       appropriate concerns for what was going on” and were “taking action and

       trying to correct it and mak[e] sure the right thing was done.” Id. at 48.


[10]   Similarly, DCS family case manager Morgan Smith determined that allegations

       of child abuse or neglect were unsubstantiated and that X.B. did not need

       services. FCM Smith did not find any lack of supervision by either parent, but

       prepared a Safety Plan, to keep the children involved separated and, if together,

       supervised. The Safety Plan also recommended that Justin’s alternating

       weekends with T.H. and K.H. not correspond to X.B.’s time at Mother’s home.

       The Safety Plan recommended seeking counseling for the children involved.

       On June 19, 2017, Mother, Justin, and the mother of T.H. and K.H. signed the

       Safety Plan. Father did not, as he disagreed with the finding that the report was

       unsubstantiated.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 6 of 33
[11]   Sometime between the events of May 2017 and the fall of 2017, Mother and

       Justin ended their relationship, and he moved out of the residence. In October

       2017, Mother moved from Colfax to Frankfort, Indiana. In November 2017,

       Mother’s boyfriend, Richie, moved into her residence.


[12]   X.B. continued to attend weekly counseling with Zimmer from June 2017 to

       December 2017, when he was released from treatment. The sessions usually

       were between Zimmer and X.B. only, but Father and Nicole participated in a

       couple of sessions. Mother took X.B. to a few sessions, but did not participate,

       as she believed she was not permitted to do so. Zimmer’s diagnostic impression

       of X.B. was adjustment disorder unspecified.


[13]   The trial court initially scheduled a hearing on Father’s Petition to Modify for

       July 17, 2017, but it was continued a number of times and reset for April 11,

       2018. On April 1, 2018, GAL Harmon emailed her report to counsel for both

       parties, and on April 2, 2018, she filed it with the court. Mother filed an

       Objection to Introduction of Guardian ad Litem Report and Request for

       Continuance of Hearing, asserting that the report was not timely filed prior to

       the scheduled hearing and that the report contained matters that occurred

       before the dissolution. On April 24, the trial court reset the hearing for May 24.

       On May 23, Mother filed an Objection and Motion to Strike References to

       Former Guardian ad Litem’s Report and Recommendations in Report of

       Guardian ad Litem, arguing that the report included matters that occurred

       before the decree of dissolution and referred to the Prior GAL Report that “was

       never introduced in evidence, is not part of the record herein[.]” Appellant’s

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 7 of 33
       Appendix Vol. II at 69-70. Mother’s Motion to Strike asked the trial court to

       strike or disregard references to the Prior GAL Report “and/or

       recommendation contained in the current Guardian Ad Litem Report.” Id. at

       70.


[14]   The hearing on Father’s Petition to Modify commenced on May 24, 2018, and

       continued on June 21 and August 28. Before the presentation of evidence, and

       after receiving argument from the parties on Mother’s Motion to Strike, the trial

       court denied Mother’s Motion to Strike. In doing so, the court observed that

       because the parties reached a Settlement Agreement during dissolution, “There

       wasn’t [] a hearing to adjudicate the issue of custody. And so I [] think it is

       necessary that I understand a context.” Transcript Vol. 1 at 12.


[15]   During the three days of hearings, Father called, among other witnesses, GAL

       Harmon. Her report was admitted over Mother’s objection. In preparing her

       report and making her recommendation, GAL Harmon considered DCS’s

       report, the parties’ answers to interrogatories that she had sent them, medical

       records, X.B.’s forensic interview, and the Prior GAL report. She also spoke

       directly to Zimmer. She did not speak to Detective Roudebush or to DCS

       FCM Smith.


[16]   GAL Harmon recommended that it was in X.B.’s best interest that the parties

       continue to share joint legal custody but that Father have primary physical

       custody of X.B. with Mother having, at a minimum, parenting time provided by




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 8 of 33
       the Guidelines and at other times as the parties agree. When asked to explain

       what concerns led her to make that recommendation, she explained, in part:


               [T]here was extensive inappropriate behaviors going on between
               these children that should not have happened. I mean I know I
               heard the testimony that by both DCS and by the police that
               there was [] no neglect involved. Um and I would probably agree
               with that. But for something to . . . be able to go on that long
               and nobody catch it nobody notice it, that’s disturbing to me. I
               was disturbed that DCS didn’t substantiate at least do an
               informal adjustment and make sure all children involved received
               the counseling that they needed. . . . Um for a nine year old that
               the actions that I um saw in the report and from the forensic
               interview it was not just a little bit of exploration. To me it went
               well beyond that. And I think it was damaging to these children.


       Id. at 67. GAL Harmon said there was nothing inappropriate about Mother’s

       actual home, but felt that “situations” in her house may have made the

       misconduct between the children “easier to happen,” observing that Mother

       “had gone through at least two relationships during the time of [her]

       investigation,” which caused Harmon some concern. Id. at 68. GAL Harmon

       viewed it as a “pattern of behavior” that “can tend to cause more difficulties in

       a home and things can happen as they did” here. Id. at 71. GAL Harmon

       opined that being primarily with Father was in X.P.’s best interests for

       “stability, for watching for future problems,” and if they do occur, “[Father]’s

       going to seek out the assistance and help” for X.B.’s needs. Id. at 76.


[17]   Zimmer also testified for Father. She was a therapist with the Indiana Center

       for Children and Families, and she saw X.B. usually once a week. According


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 9 of 33
       to Zimmer, X.B. shared with her that he sometimes felt bullied by T.H. and that

       T.H. and Justin had laughed at X.B. because he did not know what

       pornography or pole dancing was. Zimmer recalled that X.B. became

       physically ill and had to leave the room when describing an incident when he

       performed oral sex on T.H. at Mother’s home. When asked why Father

       participated in some of X.B.’s sessions and Mother did not, Zimmer explained

       that Mother did not ask to participate and that she did not ask Mother back to

       join them based on X.B.’s wishes. Zimmer characterized X.B. as “a very

       emotionally intelligent” child, and she felt both parents were supportive of X.B.

       Id. at 137. In Zimmer’s opinion, Father had the more stable home, which she

       based in part on the fact that X.B. had told her that Mother “had a lot of

       boyfriends at different times,” and Zimmer felt that “if you have a lot of people

       moving in and out of the house” it can cause friction, tension, or a worse

       situation, as happened in the current case. Id. at 148.


[18]   Father testified that he and Nicole currently lived in a three-bedroom house in

       Clarks Hill, in Tippecanoe County, X.B. is his only child, X.B. has his own

       bedroom at the house, and Nicole has no children. Father testified to having

       concerns about the living arrangement at Mother’s home, specifically her dating

       and bringing different men to live in the home. He at first did not have

       concerns with Justin living with Mother, but then began to believe that X.B.

       was being bullied by T.H. When he would raise his concerns to Mother, she

       would “play[] it off” and say “boys are boys.” Transcript Vol. 2 at 9, 11. Father

       acknowledged that without notifying Mother, he took X.B. to the emergency


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 10 of 33
       room, the pediatrician, and then for an initial consultation with Zimmer, but he

       explained that Mother was out of town on vacation and that his focus at that

       point “was completely on X.B.” Id. at 20.


[19]   Father’s main concern with Mother and her parenting was that “at times she is

       more self oriented than family oriented,” moving from one boyfriend to

       another, such that his concern is “who’s gonna live there next,” and that this

       had been “an ongoing concern.” Id. at 25. On cross-examination, Father

       acknowledged that he was “perturbed” with FCM Smith and DCS about their

       conclusion that the matter was “unsubstantiated” and that he was told by FCM

       Smith to speak to her supervisor in any future communication. Id. at 33.

       Father agreed that X.B. was released by Zimmer but that he believed X.B.

       suffered trauma as a result of what occurred between X.B. and Justin’s children

       and that he had concerns for X.B.’s mental state in terms of issues that may

       “show up in the future.” Id. at 40.


[20]   Father testified that he works for Frito Lay as a maintenance mechanic from

       7:00 a.m. to 3:30 p.m., making $31.88 per hour, and that he usually works

       forty-eight hours per week. He stated that, year to date, he had earned $62,000,

       and in 2017, he made around $90,000. He stated that neither he nor Mother

       were currently living in the Clinton Prairie school district, although X.B. had

       been continuing to attend school there, with Mother’s older daughters driving

       him to school. Father stated that, if he were to gain primary custody, X.B.

       would get picked up by a bus and go to the Tippecanoe County school district.



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 11 of 33
[21]   Mother testified that in October 2017 she moved from Colfax to Frankfort,

       where she rents a five-bedroom home, in which her three daughters and one

       grandchild also live, along with her boyfriend Richie, who has no children.

       X.B. has his own bedroom at her home. Mother described that X.B. has a very

       good relationship with her older daughters.


[22]   Mother stated that when X.B. told her about the inappropriate contact, she

       separated the kids, and she and Justin tried to talk with them about it, but they

       were not forthcoming with information. She stated that she promptly told

       Father, although X.B. had asked her not to. She and Father agreed to meet at

       DCS but Father instead took X.B. to the emergency room without telling her.

       She also was not told about the pediatrician or the counselor, until she was

       contacted to sign release papers. Mother testified that Father had told her she

       would not be allowed to participate in counseling, which Father denied having

       said. Around the same time as all of this was happening, Mother had a pre-

       planned trip to North Carolina to see her grandmother, and DCS told her to go

       and take X.B., to keep his life normal, but that Father would not let her take

       X.B. on the trip. She signed DCS’s Safety Plan, although she “thought it was a

       little much,” given that the children were not “ever gonna be around each other

       again.” Transcript Vol. 1 at 210.


[23]   With regard to the conduct between X.B. and Justin’s children, Mother stated

       that she did not believe X.B. was the victim of bullying or sexual assault, as

       Father asserted. Rather, in her view,



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 12 of 33
                  [T]hree children participated in acts that they were not suppose
                  [sic] to participate in. [X.B.] fully participated with the other two
                  children as well. He did things to a little girl. 2


       Id. at 246. Mother testified that she had no further concerns about what

       occurred because she was no longer dating Justin and X.B. was no longer

       around T.H., and X.B. had been cleared from a therapist. Mother presented

       evidence that X.B.’s grades had not suffered as a result of the situation, that he

       was doing well, attending school, and participating in football. She believed

       that it was in X.B.’s best interests for the joint physical custody arrangement to

       continue.


[24]   Mother asked the trial court to order Father to pay child support. She testified

       that she also works at Frito Lay, where she has worked for the last six years

       and, previously, for another seven years. Mother testified that she works in the

       sanitation department and earns $18.36 per hour. Mother offered a proposed

       child support worksheet, which was admitted over Father’s objection at the

       hearing.


[25]   The trial court took the matter under advisement, and the parties each

       submitted proposed findings of fact and conclusions. The trial court issued its

       Findings of Fact, Conclusions of Law and Order on September 24, 2018,

       denying Father’s request to modify custody. It found that Father had failed to




       2
           Mother later clarified that she was referring to K.H.


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 13 of 33
       establish a change in the Ind. Code § 31-17-2-8 factors and failed to establish

       that a modification of the existing custody arrangement was in X.B.’s best

       interests. The trial court granted Mother’s request to establish child support,

       ordering Father to pay $106 per week. The court found that Father was in

       arrears in the amount of $6572 due to retroactive modification and ordered

       Father to pay an additional $25 per week toward the arrearage. It also ordered

       Father to pay $4500 in attorney fees to Mother’s counsel. Father filed a motion

       to correct error, which the trial court summarily denied. Father now appeals.


                                        Discussion & Decision
[26]   At Mother’s request, the trial court in this case entered special findings of fact

       and conclusions thereon pursuant to Trial Rule 52(A). Our review of such

       findings and conclusions is two-tiered. Coulibaly v. Stevance, 85 N.E.3d 911, 915

       (Ind. Ct. App. 2017). First, we consider whether the evidence supports the

       findings, and second, whether the findings support the judgment. Id. The trial

       court’s findings and conclusions will be set aside only if they are clearly

       erroneous—that is, where a review of the record leaves us with a firm

       conviction that a mistake has been made. Id. at 915-16. In conducting our

       review, we will neither reweigh the evidence nor judge the credibility of

       witnesses. Id. at 916. Instead, we consider only the evidence favorable to the

       trial court’s judgment. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 14 of 33
                                            I. Child Custody
[27]   Father contends the trial court should have granted his request to modify

       custody. We review the trial court’s decision to modify custody for an abuse of

       discretion, giving wide latitude and deference to the trial court. Collyear-Bell v.

       Bell, 105 N.E.3d 176, 183 (Ind. Ct. App. 2018) (citing Kirk v. Kirk, 770 N.E.2d

       304, 307 (Ind. 2002)). We do not reweigh the evidence or judge the credibility

       of the witnesses. Kirk, 770 N.E.2d at 307. It is not enough that the evidence

       might support some other conclusion, but it must positively require the

       conclusion contended for by appellant before there is a basis for reversal. Id.


[28]   Pursuant to Ind. Code § 31-17-2-21, a trial court may not modify an existing

       custody order unless the modification is in the best interests of the child and

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

       forth in I.C. § 31-17-2-8. Collyear-Bell, 105 N.E.3d at 184. Those factors

       include:


               (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;



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 15 of 33
                 (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[.]


Thus, to support custody modification under I.C. § 31-17-2-21, the following is

required: (1) a finding by the trial court that change would be in the child’s best

interests, (2) a consideration of the factors listed above, and (3) a finding that

there has been a substantial change in one of those factors. Collyear-Bell, 105

N.E.3d at 184.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 16 of 33
                                             a. Prior GAL Report

[29]   Father raises a number of challenges to the trial court’s decision to deny his

       Petition to Modify, one of which is that the trial court erred when it gave

       limited consideration to matters in GAL Harmon’s report concerning the Prior

       GAL Report. In particular, Father challenges the trial court’s Findings of Fact

       6 and 7 and Conclusion 8 which state:


                6. The former Guardian Ad Litem’s report was not admitted
               into evidence and the parties did not have an opportunity to
               cross-examine Ms. Afflerbach regarding her report and
               recommendations.


               7. The Court previously denied Mother’s Motion to Strike related
               to the former Guardian Ad Litem’s report and recommendations,
               but gives limited weight to any testimony or references to the
               former Guardian Ad Litem’s report and recommendations.


                                                      ****


               8. The prior Guardian Ad Litem’s (Judy Afflerbach) report was
               not received in evidence at a hearing at which the parents had a
               right to cross-examine said Guardian Ad Litem with respect to
               her recommendation; Keen v. Keen, 629 N.E.2d 938, 940 (Ind. Ct.
               App. 1994)


       Appellant’s Appendix Vol. II at 18, 24.


[30]   We find no reversible error with regard to these findings and conclusion or with

       the trial court’s manner of handling the Prior GAL Report. The findings and

       conclusion correctly observe that the Prior GAL Report was never admitted

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 17 of 33
       into evidence (having only been filed with the court prior to the decree) and,

       because it was never presented at a hearing, its author was never subject to

       cross-examination. Furthermore, as Finding 7 recognizes, when Mother sought

       to strike Harmon’s GAL Report or portions of it that referred to the Prior GAL

       Report, the trial court denied Mother’s request, thus allowing those references to

       remain in Harmon’s report, which the trial court admitted.


[31]   At the hearing, when Mother “renew[ed] [her] objection as to references to the

       [Prior GAL Report]” the trial court sustained the objection, because it had

       never been admitted in evidence, but stated:


                [C]ertainly [Harmon] can consider it. It helps her understand the
                context. . . . but . . . I don’t know that I have to hear the
                specifics of that [Prior] GAL Report . . . that were . . . not
                admitted to evidence. It may have been filed with the Court but
                not admitted to evidence in any prior hearing. So you may
                continue with questions just not uh specifically like [“]hey What
                did that say[”] . . . kind of thing[.]


       Transcript Vol. 1 at 69. Thus, the trial court found that it was permissible for

       GAL Harmon to consider the Prior GAL Report when making her

       recommendation, 3 but found it neither necessary nor appropriate for Harmon to

       testify as to the specific contents thereof. Father has not established that the




       3
         We note that I.C. § 31-17-2-12(b), regarding a court-ordered investigation and report in child custody
       matters, provides, in part: “In preparing a report concerning a child, the investigator may consult any person
       who may have information about the child and the child’s potential custodial arrangements. . . . [T]he
       investigator may consult with and obtain information from medical, psychiatric, or other expert persons who
       have served the child in the past without obtaining the consent of the parent or the child’s custodian.”

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019                    Page 18 of 33
       trial court’s decision was clearly erroneous. Father additionally challenges that

       – as stated in Finding 7 – the trial court gave Harmon’s references to the Prior

       GAL Report “limited weight.” Appellant’s Appendix Vol. II at 18. However, it

       was well within the trial court’s discretion to determine what weight to give

       such evidence.


[32]   Father also claims that the trial court should have taken judicial notice of the

       Prior GAL Report. While Ind. Evidence Rule 201(a)(2)(C) permits trial courts

       to take judicial notice of court filings and contents of pleadings in the case

       before it, we find no authority that a trial court is required to do so, nor does

       Father provide any. In this case, the trial court permitted GAL Harmon to rely

       on and refer to the Prior GAL Report when preparing her own report, which it

       admitted into evidence. Father has not established any error with the trial

       court’s decision to not take judicial notice of the Prior GAL Report.


                         b. Sustaining Objections / Mother’s Prior Conduct

[33]   In a related vein, Father contends that the trial court erred “in sustaining

       [Mother’s] objections to testimony and evidence [regarding matters] that

       occurred [] before the last court order.” Appellant’s Brief at 20. Father does not

       identify what specific evidence was offered and excluded, or the basis of any

       objections, only citing generally to Transcript Vol. I pages “69149-150[,]” id. at

       22, presumably referring to pages 69 and 149-50. This is an insufficient basis to

       challenge the trial court’s evidentiary rulings, and the issue is waived. Ind.

       Appellate Rule 46(A)(8); Ind. Evidence Rule 103(a)(2).


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 19 of 33
[34]   Waiver notwithstanding, we recognize that the gist of Father’s claim is that the

       trial court should have allowed more testimony about matters that occurred

       prior to the dissolution decree, in particular with regard to what he claims was

       Mother’s “pattern of behavior [and] lifestyle choices” that “began before [the

       Decree] and continued after” and “caused a substantial change” in the I.C. §

       31-17-2-8 factors. Appellant’s Brief at 11-12. He challenges the trial court’s

       Conclusions 3, 5, and 6, which state, in part:


               3. In considering these factors, the trial court’s inquiry is strictly
               limited to consideration of changes in circumstances which have
               occurred since the last custody decree.


                                                       ***


               5. It is a well settled rule of law that the modification hearing
               cannot be used to retry the issues settled by the divorce decree....


               6. Evidence of conduct of the parties prior to the entry of a
               Decree of Dissolution is properly excluded.


       Appellant’s Appendix Vol. II at 23 (quotations and citations omitted). Father

       asserts that these conclusions “fail to consider” I.C. § 31-17-2-21(c) (Subsection

       21(c)), which provides that a trial court “shall not hear evidence on a matter

       occurring before the last custody proceeding . . . unless the matter relates to a

       change in the factors relating to the best interests of the child as described in

       [I.C. § 31-17-2-8.]” Appellant’s Brief at 21. The trial court did not ignore




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 20 of 33
       Subsection 21(c), as Father claims, as it expressly included that language

       elsewhere in its conclusions, namely in Conclusion 4. 4


[35]   Father also argues that Conclusions 3, 5, and 6, and the trial court’s manner of

       limiting evidence of matters occurring prior to the dissolution, were in conflict

       with Dwyer v. Wynkoop, 684 N.E.2d 245 (Ind. Ct. App. 1997), trans. denied. In

       that case, this court stated:


                [W]hen parents stipulate as to who will have custody of the child
                and the trial court grants a summary dissolution on the basis of
                such agreement without hearing evidence on the issue of custody,
                there is no “custody proceeding” that would activate [Subsection
                21(c)] . . . Thus, this section does not apply to situations where
                custody was originally determined solely by stipulation of the
                parties.


       Id. at 249. Father maintains that, pursuant to Dwyer, evidence of conduct prior

       to the dissolution would be new and material information and should have been

       allowed to be presented to the court and that, here, the court acted in

       contravention of Dwyer. We disagree.


[36]   First, as stated above, Father has not specifically identified what evidence, other

       than the Prior GAL Report, which we have already addressed, should have

       been admitted or more fully allowed to be discussed. Second, and as Mother




       4
         Conclusion 4 states: “Pursuant to Indiana Code § 31-17-2-8(c) [sic], ‘[T]he Court shall not hear evidence on
       a matter occurring before the last custody proceeding between the parties unless the matter relates to a change
       in the factors relating to the best interests of a child as described in [I.C. 31-17-2-8] and, if applicable [I.C. 31-
       17-2-8.5].” Appellant’s Appendix Vol. II at 23-24.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019                          Page 21 of 33
       observes, some testimony on the subject of Mother’s past boyfriends or prior

       conduct was, in fact, admitted. See e.g., Transcript Vol. 1 at 68 (Mother’s past

       relationships), 239-41 (men living in her home and any criminal histories).

       Third, even if as Father claims it was error for the trial court to not more fully

       receive evidence on matters prior to the agreed dissolution, Father has not

       shown that, if admitted, such evidence would “positively require” a change in

       custody. Kirk, 770 N.E.2d at 307. Thus, we find any error was harmless.


                                       c. Standard for Modification

[37]   Father also asserts on appeal that, in deciding whether to modify custody, the

       trial court applied “the wrong legal standard” and, more specifically, applied

       one that was more stringent than what I.C. § 31-17-2-21 requires. In support of

       his argument, he points to Conclusion 10, which states:


               “Moreover, the non-custodial parent must show something more
               than isolated acts of misconduct by the custodial parent to
               warrant a modification of child custody; the non-custodial parent
               must show that changed circumstances regarding the custodial
               parent’s stability and the child’s well-being are substantial.”
               Wallin, 668 N.E.2d [259,] @261 [(Ind. Ct. App. 1996)] citing
               Simons v. Simons 566 N.E.2d 551, 555 (Ind.Ct.App.1991)[.]


       Appellant’s Appendix Vol. II at 25. He argues that requiring a parent to show

       “that changed circumstances regarding the custodial parent’s stability and the

       child’s well-being are substantial” is not an accurate statement. We agree with

       Father to the extent that this portion of Conclusion 10 somewhat muddles the

       correct standard, but we find that the remainder of the court’s findings and


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 22 of 33
       conclusions state that, pursuant to I.C. § 31-17-2-21, a modification requires a

       showing of a substantial change in at least one of the statutory factors of I.C. §

       31-17-2-8, which section the court then fully sets out, as well as a showing that

       modification is in the child’s best interests. We find that, considering the order

       in its entirety, any misstatement in Conclusion 10 is not fatal to the court’s

       decision.


                                d. Findings as Unsupported by Evidence

[38]   Father also challenges the denial of his request for modification by asserting

       that Findings 22, 28, 33, and 35 are not supported by the evidence. Finding 22

       states: “The DCS prepared a safety plan which specified that [X.B.] would not

       be in the presence of [Justin’s] children.” Appellant’s Appendix Vol. II at 20. His

       quarrel is that the Safety Plan does not actually state that they not be in each

       other’s presence; rather, it directs that the children be supervised when they are

       together. We are unpersuaded that Finding 22 is a clearly erroneous finding, as

       Father claims, and conclude that this technical distinction does not render

       Finding 22 as unsupported by the evidence.


[39]   Finding 28 states: “Both the Father and Guardian Ad Litem Harmon

       speculate, without any evidence in support thereof, that the [Mother] failed to

       adequately supervise [X.B.].” Id. Father maintains that GAL Harmon was not

       speculating because her concerns were based on, among other things, the

       forensic interview, DCS records, and medical records. GAL Harmon testified

       that she was disturbed that extensive and inappropriate touching went

       unnoticed. More specifically, she said “I just find it very hard to believe that
       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 23 of 33
       activities of this nature could go on . . . for the period of time and the amount

       without anyone’s knowledge or suspicion.” Transcript Vol. 1 at 83. On cross-

       examination, she acknowledged that she was speculating as to the belief that

       someone should have known. Thus, the trial court’s Finding 28 was supported

       by the evidence.


[40]   Father also argues that the evidence did not support Findings 33 and 35, which

       concerned where X.B. did or would attend school, and stated:


               33. Father’s proposed modification would result in [X.B.]
               changing schools.


                                                       ***


               35. It is not in [X.B.]’s best interest to modify the existing custody
               arrangement or to change his schooling from Clinton Prairie.


       Appellant’s Appendix Vol. II at 21. Father maintains these are “erroneous on

       their face” because it is undisputed that neither parent lives in Clinton Prairie

       school system and, thus, “it does not follow that Father’s proposed

       modification would result in X.B. changing schools.” Appellant’s Brief at 28.

       The evidence, however, was that X.B. had been attending Clinton Prairie

       school even though neither parent was still living in that district and that

       Mother’s older daughters took him to school. Father testified that, if he were

       awarded primary custody, then X.B. would begin attending school in the

       district where Father lived in Tippecanoe County and would ride the bus.

       Father has not shown that the findings were unsupported by the evidence.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 24 of 33
                                         e. I.C. § 31-17-2-8 Factors

[41]   Father also argues that the denial of his petition to modify was erroneous

       because the trial court failed to consider all relevant factors under I.C. § 31-17-2-

       8. In particular, Father notes that the trial court’s findings and conclusions “are

       wholly void of relevant testimony of” Zimmer and GAL Harmon. Appellant’s

       Brief at 24. Father’s argument in this regard is essentially a request to reweigh

       the evidence, which we cannot do. We recognize that Zimmer and GAL

       Harmon presented testimony and evidence that supported Father’s position in

       favor of modification, namely that he had the more stable home and that each

       recommended that he have primary physical custody. The trial court heard that

       evidence, along with all the other evidence, and denied Father’s Petition to

       Modify. This is not a case where the trial court failed to consider the necessary

       statutory factors; indeed, its order stated that it did consider the factors. It

       simply determined that Father “failed to establish the requisite change in any of

       the factors outlined in Indiana Code 31-17-2-8.” Appellant’s Appendix Vol. II at

       20. Father has not established that this determination was clearly erroneous.


[42]   Indeed, Mother presented evidence that, upon learning of the inappropriate

       conduct, she promptly contacted Father and arranged to make a report to DCS,

       which she did. Father unilaterally took X.B. to the emergency room, the

       pediatrician, and a counselor. Mother agreed to the counseling, once she

       learned of it, but did not participate because, according to Mother, Father told

       her she was not allowed to. Mother did not believe that this was a situation in

       which X.B. had been bullied and was the victim of sexual assault. She agreed

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 25 of 33
       with Detective Roudebush and DCS that it was a situation that was definitely

       inappropriate and needed to stop, and that precautions should be taken to keep

       the children supervised at all times if together, but that it did not warrant

       criminal charges or DCS involvement. Mother ended her relationship with

       Justin, and she moved to a new town. She said X.B. was doing well in school

       and participating in football. While Father’s proposed modification would

       require X.B. to change schools, she stated that she would try to keep X.B.

       attending Clinton Prairie schools, with her daughters continuing to transport

       him, until they graduated at semester, at which time she would secure other

       arrangements.


[43]   Father’s Petition to Modify had asserted that X.B. was “not thriving under the

       current custodial arrangement.” Appellant’s Appendix Vol. II at 29. The trial

       court decided otherwise, and based on the record before us, we cannot say that

       its decision was clearly erroneous. Accordingly, we affirm the trial court’s

       decision to deny Father’s Petition to Modify.


                                            II. Child Support
[44]   Father challenges the trial court’s order of child support. “Decisions regarding

       child support rest within the sound discretion of the trial court.” Taylor v.

       Taylor, 42 N.E.3d 981, 986 (Ind. Ct. App. 2015), trans. denied. We reverse child

       support determinations only if the trial court abused its discretion or made a

       determination that is contrary to law. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 26 of 33
[45]   Here, the court ordered Father to pay child support in the amount of $106 per

       week. Initially, Father claims that the trial court should not have entered a

       support order in favor of Mother because “Mother never filed a cross motion to

       modify support[.]” Appellant’s Brief at 32. We reject Father’s argument.

       Father’s Petition to Modify asked the trial court to modify custody and order

       child support, asserting that “a modification in child support is warranted to

       reflect the new custodial arrangement.” Appellant’s Appendix Vol. II at 29. At the

       hearing, Mother requested that the court not modify the joint custody

       arrangement, but establish an order of support (as none has been provided in

       the parties’ Settlement Agreement), and she submitted a proposed child support

       worksheet that was admitted over Father’s objection. Both parties testified to

       their respective incomes, and Father later submitted a child support order with

       the court. 5 Given this record, the matter of child support was squarely before

       the court, and it was not error for the trial court to order child support.


[46]   Father also asserts that the trial court erred in its calculation of child support. 6

       Child support calculations are made utilizing the income shares model set forth

       in the Indiana Child Support Guidelines. In re Marriage of Duckworth, 989



       5
        The record indicates that Father emailed his proposed findings of fact and conclusions of law, along with a
       proposed child support worksheet, to the court on September 19, 2018.
       6
         Father suggests that the trial court’s “wholesale adoption” of Mother’s proposed findings of fact and
       conclusions caused or at least contributed to the allegedly-erroneous calculation of child support. Appellant’s
       Brief at 29. As Father acknowledges, trial courts are permitted to adopt proposed findings. As Father further
       recognizes, the trial court here, made a number of minor technical changes or additions to Mother’s proposed
       findings and conclusions. We find that the trial court’s actions – to revise even small matters with which it
       did not agree – reflect the court’s careful review of the proposed findings. Father has failed to establish any
       error with the trial court’s use of Mother’s proposed findings and conclusions.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019                    Page 27 of 33
       N.E.2d 352, 354 (Ind. Ct. App. 2013). These Guidelines apportion the cost of

       supporting children between the parents according to their means. Id. A

       calculation of child support under the Guidelines is presumed valid. Id.

       Indiana Child Support Guideline 3A(1) provides in part 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’ benefits” and that “[w]eekly gross income of each

       parent includes income from any source, except as excluded below, and

       includes, but is not limited to, income from salaries, wages, commissions,

       bonuses, overtime, partnership distributions, [and] dividends ....” Marshall v.

       Marshall, 92 N.E.3d 1112, 1117 (Ind. Ct. App. 2018).


[47]   Father specifically challenges Findings 38, 39, 43, 44, which state:


               38. The Father works at Frito Lay in the maintenance
               department, earning in excess of ninety-thousand dollars
               ($90,000) in 2017.


               39. For child support purposes, the Court finds Father’s income
               to be $1,693.73 per week.


               43. Effective July 16, 2017, Father shall pay to Mother, by means
               of an Income Withholding Order, child support in the sum of
               $106.00 per week.


               44. As of September 21, 2018, Father is in arrears in his child
               support obligations due to the retroactive modification in the sum
               of $6,572, which arrears shall be paid at the rate of $25.00 per
               week until paid in full.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 28 of 33
       Appellant’s Appendix Vol. II at 21-22.


[48]   In particular, Father claims that the court’s computation of his weekly gross

       income erroneously included overtime. Upon review, however, we find no

       error in the court’s determination of support, which was in accordance with

       Mother’s proposed child support worksheet. Her worksheet calculated Father’s

       weekly gross income at $1693.73 per week, which extrapolates to $88,036 per

       year. 7 Father testified that his income was approximately $90,000 in 2017,

       which would calculate to $1730.77 per week. He also testified that, as of the

       August 28, 2018 hearing, he had earned approximately $62,000 year to date,

       which – based on having been paid for 35 weeks of the year – calculates to

       $1771 per week. Furthermore, while Father testified that he earns $31.88 per

       hour and generally works 48 hours per week, he agreed that he sometimes

       works up to 56 hours per week. Given the record before us, Mother’s proposed

       weekly gross income amount for Father of $1693.73 was within the scope of the

       evidence presented.


[49]   Father also contends that the trial court erroneously ordered retroactive support

       “to a date that the Chronological Case Summary shows nothing being filed to

       base a retro[]active date on[.]” Appellant’s Brief at 33. Under Indiana law, “‘A

       trial court has the discretionary power to make a modification for child support

       relate back to the date the petition to modify is filed, or any date thereafter.’”



       7
        Father’s proposed child support worksheet assigned him weekly gross income of $1530 ($31.88 per hour at
       48 hours per week), or $79,560 per year.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019               Page 29 of 33
       Taylor v. Taylor, 42 N.E.3d 981, 986 (Ind. Ct. App. 2015) (quoting Haley v.

       Haley, 771 N.E.2d 743, 752 (Ind. Ct. App. 2002), trans. denied. A “retroactive

       modification of support is erroneous only if the modification purports to relate

       back to a date earlier than that of the petition to modify.” Id.


[50]   Here, the trial court found that, as of September 21, 2018, Father “is in arrears

       in his child support obligation” in the amount of $6572 “due to retroactive

       modification[,]” but the court’s order does not identify a specific date when the

       retroactive child support obligation commenced. Appellant’s Appendix Vol. II at

       22. Father maintains that the retroactive date was July 16, 2019, Appellant’s

       Reply Brief at 15, whereas Mother asserts that it was June 2, 2017, Appellee’s Brief

       at 44. We make no determination as to the date, but find that the trial court

       was within its discretion to order a support obligation to begin as early as June

       2, 2017, when Father filed his Petition to Modify. In sum, Father has not

       shown any abuse of discretion in the trial court’s child support determination.


                                           III. Attorney Fees
[51]   Father challenges the trial court’s award of attorney fees in favor of Mother.

       The trial court may periodically order a party to pay a reasonable amount for

       the cost to the other party of maintaining or defending a proceeding, including

       attorney fees. See I.C. § 31-17-7-1 (regarding custody issues); I.C. § 31-16-11-1

       (regarding child support issues). A determination regarding attorney fees in

       family law matters is within the sound discretion of the trial court and will be

       reversed only upon a showing of a clear abuse of that discretion. Bean v. Bean,


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 30 of 33
       902 N.E.2d 256, 266 (Ind. Ct. App. 2009). In determining whether to award

       attorney fees, the trial court must consider the parties’ resources, their economic

       condition, their ability to engage in gainful employment, and other factors that

       bear on the award’s reasonableness. Id. The court may also consider any

       misconduct on the part of either of the parties. Martinez v. Deeter, 968 N.E.2d

       799, 810 (Ind. Ct. App. 2012). The trial court need not cite the reasons for its

       determination. Bean, 902 N.E.2d at 266.


[52]   Here, the trial court ordered Father to contribute $4500 towards Mother’s

       request for attorney fees in the sum of $8500 (Exhibit F). Father argues that the

       trial court abused its discretion when it ordered him to pay a portion of

       Mother’s attorney fees because Mother has a steady income and, further, “there

       lacked testimony that [] Mother endured a hardship in paying her attorney.”

       Appellant’s Brief at 28. We find no abuse of discretion, however, with the trial

       court’s decision. The court heard evidence of the parties’ respective incomes,

       with Father earning $31.88 per hour and Mother earning $18.36 per hour.

       Father earned in excess of $90,000 in 2017. Mother had three prior-born

       daughters living in her home (two were still minors), along with a grandchild.

       Mother testified that she had incurred attorney fees in connection with Father’s

       Petition to Modify and that she did not have the financial means to pay those

       fees.


[53]   The trial court determined that, “[b]ased upon the substantial disparity in the

       parties’ incomes and financial conditions and the nature of the litigation, the

       Father should contribute to Mother’s reasonable attorney fees.” Appellant’s

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 31 of 33
       Appendix Vol. II at 22. We conclude that the trial court did not abuse its

       discretion in this determination.


                              IV. Cross Appeal: Appellate Fees
[54]   Mother asks us to assess appellate attorney fees against Father pursuant to Ind.

       Appellate Rule 66(E) for substantive and procedural bad faith. The discretion

       to award fees under this rule is limited to instances when an appeal is

       “permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness,

       or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App.

       2003). “To prevail on a substantive bad faith claim, the party must show that

       the appellant’s contentions and arguments are utterly devoid of all plausibility.”

       Id. Procedural bad faith “occurs when a party flagrantly disregards the form

       and content requirements of the Rules of Appellate Procedure, omits and

       misstates relevant facts appearing in the record and files briefs written in a

       manner calculated to require the maximum expenditure of time both by the

       opposing party and the reviewing court.” Id.


[55]   Mother argues that Father’s statement of facts was deficient, failed to include

       facts favorable to the judgment, and was argumentative, requiring Mother to

       spend time and expense to provide an appropriate statement of facts. Mother

       also argues, among other things, that Father “failed to support many of his

       contentions with cogent argument or citations to caselaw or the record.”

       Appellee’s Brief at 47. As Father observes, while App. R. 66(E) provides this

       court with the discretionary authority to award fees on appeal, we must use


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 32 of 33
       “extreme caution” when exercising this power because of a potential chilling

       effect upon the exercise of the right to appeal. Gilbert v. Gilbert, 7 N.E.3d 316,

       324 (Ind. Ct. App. 2014). We conclude that, even if Father’s brief contained

       flaws, as Mother claims, any shortcomings were not so flagrant or significant as

       to constitute bad faith or vexatiousness. We thus decline to award Mother

       appellate attorney fees.


[56]   Judgment affirmed.


       Kirsch, J. and Vaidik C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019   Page 33 of 33
