      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              Nov 15 2018, 9:22 am

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


      ATTORNEY FOR APPELLANT
      Jennifer Irons Jostes
      Cedar Lake, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Brent S. Potoski,                                        November 15, 2018
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               18A-JP-1285
              v.                                               Appeal from the Jasper Circuit
                                                               Court
      Nicole R. Stotts,                                        The Honorable John D. Potter,
      Appellee-Petitioner                                      Judge
                                                               Trial Court Cause No.
                                                               37C01-1609-JP-244



      Altice, Judge.


                                               Case Summary


[1]   Brent Potoski (Father) and Nicole Stotts (Mother) had three children (the

      Children) together during their fourteen-year relationship. They ended their

      relationship by August 2016, and Mother moved out with the Children. The

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018               Page 1 of 11
      parties quickly filed petitions to establish child support and custody. Father

      sought shared legal and physical custody. In March 2017, following a short

      evidentiary hearing, the trial court issued an Order Establishing Paternity,

      Custody, Support and Visitation (the 2017 Order). Father appealed several

      aspects of the 2017 Order. In a memorandum decision, we affirmed in part,

      reversed in part, and remanded with instructions. In re Paternity of Potoski, No.

      37A03-1704-JP-947 (Ind. Ct. App. November 15, 2017). Most notably, we held

      that the trial court abused its discretion by awarding primary physical and sole

      legal custody to Mother without a proper consideration of the relevant statutory

      factors, including evidence from before the separation.


[2]   On remand, the trial court issued a new order in April 2018 (the 2018 Order).

      The court revised some of its findings and included new ones. With respect to

      custody, the trial court ordered joint legal custody and awarded primary

      physical custody to Mother, with Father exercising parenting time pursuant to

      the Indiana Parenting Time Guidelines (the Guidelines). The trial court set

      child support at zero dollars per week.


[3]   Father appeals from the 2018 Order. He argues that, once again, the trial court

      erred by awarding sole physical custody to Mother. Father also notes a

      miscalculation in the child support order. Like the previous appeal, Mother has

      not filed an appellate brief.


[4]   We reverse and remand.


                                       Facts & Procedural History

      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 2 of 11
[5]   Mother and Father’s long-term relationship ended around August 2016, when

      Mother moved out with their three minor children. Their sons K.P. and R.P

      were born in December 2002 and March 2006, respectively. Their daughter

      E.P. was born in October 2008. Although Mother and Father were never

      married, they were together about fourteen years and lived as a family in Jasper

      County, Indiana. During their relationship, both Mother and Father generally

      worked outside of the home, and they equally shared parental responsibilities.

      According to Mother, Father has always been an involved father and has a

      close bond with the Children.


[6]   After Mother and the Children moved out of the family home, Mother allowed

      Father to have parenting time pursuant to the Guidelines. That is, Father had

      the Children on Wednesdays and every other weekend. Father, however,

      desired more time with them. Although he did not provide Mother with money

      to support the Children during this time, he did pay for some expenses, such as

      clothing, shoes, phones, and haircuts. Additionally, because Mother took all of

      the furniture from the Children’s bedrooms, Father had to refurnish their

      bedrooms, which took time. Father was experiencing financial troubles at the

      time but was working through them.


[7]   On September 15, 2016, Mother filed a petition to establish child support.

      Thereafter, on October 31, 2016, Father filed a petition for orders on custody

      and parenting time, in which he expressly sought “joint custody and equal

      parenting time.” Appellant’s Appendix Vol. 2 at 16. Mother responded with a



      Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 3 of 11
       petition to establish paternity, seeking primary physical custody and

       determination of child support.


[8]    On February 23, 2017, the trial court held an evidentiary hearing concerning

       the various petitions. Mother and Father each provided brief testimony. Father

       proposed a schedule for sharing equal custody of the Children. Mother,

       however, testified that she preferred to continue the current parenting schedule

       because “stability is in the best interest of the children.” Transcript Vol. II at 37.


[9]    The trial court issued the 2017 Order on March 27, 2017, establishing paternity,

       custody, support, and parenting time. The trial court awarded legal and

       physical custody to Mother, “subject to [] Father’s right of parenting time as

       agreed by the parties with a minimum pursuant to the [Guidelines], including

       overnights on Wednesdays.” Appellant’s Appendix Vol. 2 at 23. The trial court

       also ordered Father to pay $31.00 per week in child support, increased by an

       additional $19.00 per week to satisfy an arrearage.


[10]   Father appealed the 2017 Order, and Mother did not file an appellate brief. In a

       memorandum decision issued on November 15, 2017, we affirmed in part,

       reversed in part, and remanded. Relevant here, we reversed the custody

       determination and part of the calculation of child support and remanded for

       reconsideration and recalculation in light of our decision. We will discuss the

       prior appeal in more detail below.


[11]   On remand, the trial court issued the 2018 Order on April 23, 2018. In addition

       to recalculating child support, the trial court modified its order regarding

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 4 of 11
       custody. The court ordered shared legal custody of the Children but granted

       Mother primary physical custody with Father having parenting time, at a

       minimum, pursuant to the Guidelines. Father appeals from this order.

       Additional facts will be provided below as needed.


                                           Discussion & Decision


                                             Standard of Review


[12]   Once again, Mother has not filed an appellate brief. As a result, we will not

       undertake the burden of developing arguments on Mother’s behalf and will

       reverse if Father establishes prima facie error. See Duty v. CIT Group/Consumer

       Fin., Inc., 86 N.E.3d 214, 215 (Ind. Ct. App. 2017). Prima facie, in this context,

       means at first sight, on first appearance, or on the face of it. Id. This standard,

       however, “does not relieve us of our obligation to correctly apply the law to the

       facts in the record in order to determine whether reversal is required.” Wharton

       v. State, 42 N.E.3d 539, 541 (Ind. Ct. App. 2015).


                                                     Custody


[13]   Father argues that the trial court erred by awarding primary physical custody of

       the Children to Mother. In this regard, he contends that the trial court failed to

       follow our prior directive to consider the evidence regarding parenting of the

       Children from birth, rather than focusing on the parenting schedule unilaterally

       imposed by Mother since separation. Additionally, Father asserts that in the

       2018 Order, the trial court ignored or misrepresented certain facts.


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 5 of 11
[14]   A review of the prior appellate decision is helpful here. There, we reversed the

       custody determination in the 2017 order, explaining:


               In this case, rather than considering the required relevant factors,
               the trial court appears to have crafted its own standard. The trial
               court based its decision partly on the fact that, following the
               parties’ separation, Father – at Mother’s insistence – only
               exercised parenting time with the Children in accordance with
               the Parenting Time Guidelines. The trial court also criticized
               Father’s financial struggles.... The trial court found that,
               following the parties’ separation, Mother had maintained the
               Children’s routines and supported them without any assistance
               from Father, even though both parties testified that Father cared
               for the Children whenever permitted to do so by Mother and that
               he had provided the Children with certain items such as clothing
               and shoes.


               It is well established that the trial court must consider all relevant
               factors in deciding the best interests, which specifically includes
               those identified in Indiana Code section 31-14-13-2. See
               Baxendale v. Raich, 878 N.E.2d 1252, 1254 (Ind. 2008).
               Furthermore, when “a trial court is making an initial custody
               determination, it is required to consider all evidence from the
               time of [the] child’s birth in determining the custody arrangement
               that would be in the best interest of [the] child.” In re Paternity of
               M.W., 949 N.E.2d 839, 843 (Ind. Ct. App. 2011)]. Here, the trial
               court clearly failed to take into account the relationship that both parents
               have had with the Children throughout their lives. Both Father and
               Mother testified that they shared the responsibilities in raising their
               Children, and both shared a bond with the Children. Moreover, Father
               and Mother live only five minutes apart, so the Children’s school and bus
               schedules are not disrupted regardless of which parent is exercising
               parenting time. The trial court found that Mother has maintained the
               Children’s schedules since the separation, and while stability is certainly
               relevant in deciding the Children’s best interests, it is only one factor for

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 6 of 11
               the trial court to consider. The trial court should have analyzed all
               listed factors - plus any other relevant considerations - from the
               time of the Children’s birth in making an award of physical
               custody. By simply relying on the parenting time and support
               provided by the parties from the time of their separation in July
               of 2016 until the hearing in February of 2017 as the basis for its
               support order, we find that the trial court abused its discretion.


       Potoski, slip op. at 8-9 (emphasis supplied).


[15]   I.C. § 31-14-13-2 provides in relevant part:


               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:

                                (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.

                                                       ****


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 7 of 11
[16]   After noting the statutory factors in its 2018 Order following remand, the trial

       court stated:


               Father requests joint physical custody with equally shared
               overnights and parenting time; however, this has not been the
               practice as Father has been enjoying overnights on Wednesday
               evenings and not having equal overnights since the parties split in
               July of 2016. The children are all school aged and a fixed home
               and a fixed schedule would be in their best interests. Father’s
               proposal to have them switch residences multiple times during
               the week is not in the best interests of the children. Additionally,
               as of the hearing date, the parties’ daughter had only spent one
               overnight on a weekday with father usually going home to
               mother’s house. Father testified that the boys have to share a
               room and do not like to at his house and [R.P.] sleeps with him
               unless Father’s girlfriend stays over and then he sleeps on the
               couch or at a friend or neighbor’s house. It is not in the best
               interest of [R.P.] to be demoted to couch sleeping or another
               residence because Father’s girlfriend sleeps over. At Mother’s
               house they have their own beds. The children are school aged
               and have a set routine and schedule that has been successful since
               the break-up of the parties and it should be continued. Per the
               evidence at trial, Mother has always been the parent who takes
               the kids to the doctor and signs them up for school even while the
               parties were together. Father does assist and take the kids to
               practice or games when he has them.


               The age of children; their interaction and interrelationship with
               each other and the problem caused by interacting with Father’s
               girlfriend; and each of the children’s adjustment to their home,
               school and community are all factors in Mother’s favor and
               weigh heavily in granting her physical custody.


       Appellant’s Appendix Vol. 2 at 11. Based on these findings and conclusions, the

       trial court granted Mother primary physical custody of the Children, “subject to
       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 8 of 11
       Father’s right of visitation, at a minimum, pursuant to [the Guidelines]

       including his Wednesday overnight visitation.” Id. at 11-12.


[17]   Our review of the 2018 Order reveals that the trial court continued to focus

       almost entirely on the seven-month period between the parties’ separation and

       the evidentiary hearing. This was improper. The record establishes that

       Mother and Father had raised the Children together since birth. Over those

       fourteen years, they both worked outside the home and equally participated in

       caring for the Children. Mother testified that Father was an involved father,

       active in the Children’s lives, and closely bonded with the Children. Further,

       the trial court’s one reference to the period prior to separation was wrong. The

       court found that Mother had always been the parent who took the Children to

       the doctor and signed them up for school. On the contrary, Mother testified

       that she has done these things as the primary caregiver since the separation

       because she has them the majority of the time now.


[18]   After the separation, Father sought to have additional parenting time with the

       Children, but Mother demanded that they follow the Guidelines. Thus, within

       three months, Father filed a petition for orders on custody and parenting time,

       in which he sought “joint custody and equal parenting time.” Id. at 16. At the

       hearing, Mother acknowledged that there was no reason Father should not

       have more parenting time than the minimum set out in the Guidelines. She

       simply indicated that she did not feel Father’s proposed parenting schedule was

       in the Children’s best interests because “they would have more stability” if they

       would continue on the current schedule. Transcript Vol. II at 37.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 9 of 11
[19]   The trial court observed that the Children are all school aged and concluded

       that a fixed schedule would be in their best interests. This, however, does not

       establish why Mother’s proposed schedule is better than Father’s proposed fixed

       schedule. The trial court noted that Father’s schedule would have the Children

       switching residences multiple times each week. But in reality, the same number

       of switches occur under Mother’s schedule – the Children just stay shorter

       periods with Father. Further, the trial court ignored the fact that “Mother and

       Father live only five minutes apart, so the Children’s school and bus schedules

       are not disrupted regardless of which parent is exercising parenting time.”

       Potoski, slip op. at 9.


[20]   Interestingly, we observe that the trial court made little mention of Mother’s

       residence, noting only that the Children had their own beds there. This is true

       because Mother emptied the Children’s bedrooms when she moved out with

       them. Father, at a difficult financial time in his life, then had to refurnish the

       bedrooms over the next several months. This was the sole reason that E.P. had

       not yet spent many overnights with Father. With respect to R.P.’s dislike of

       sharing a room with K.P., the record is silent as to whether they have their own

       rooms at Mother’s home. Father lives in the three-bedroom home that the

       Children grew up in, so it appears likely that R.P. and K.P. have always shared

       this room. In any case, we cannot agree with the trial court’s statement that

       R.P. is “demoted to couch sleeping” when Father’s girlfriend spends the night.

       Appellant’s Appendix Vol. 2 at 11. Rather, R.P. has chosen not to sleep in the

       room he shares with his older brother.


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 10 of 11
[21]   Although the trial court did not expressly apply a presumption in favor of

       Mother in the 2018 Order, we conclude it effectively did just that by focusing on

       the short period of separation rather than the years of co-parenting before. As

       Father has established prima facie error, we reverse the custody order and direct

       the trial court, on remand, to issue a custody order in which Mother and Father

       share equal parenting time.


                                                      Child Support


[22]   Additionally, Father notes that the trial court erred when recalculating child

       support after remand.1 The mistake is evident on the face of the child support

       worksheet. The total child support obligation (Line 5 of the worksheet) should

       be $507.48 ($396.00 + $86.04 + $25.66) rather than $477.48. Using the correct

       sum results in a weekly support obligation by Father of approximately $10 per

       week. Of course, the child support amount will change with Father’s increased

       parenting time. On remand, the trial court is directed to recalculate child

       support based on the new division of parenting time.


[23]   Reversed and remanded.


       Brown, J. and Tavitas, J., concur.




       1
           The miscalculation was actually in favor of Father.


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-1285 | November 15, 2018   Page 11 of 11
