                                                                                      FILED
MEMORANDUM DECISION                                                             May 13 2016, 8:10 am

                                                                                      CLERK
Pursuant to Ind. Appellate Rule 65(D),                                           Indiana Supreme Court
                                                                                    Court of Appeals
this Memorandum Decision shall not be                                                 and Tax Court


regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Jim Brugh                                               Bradley A. Rozzi
Logansport, Indiana                                     Hillis, Hillis, Rozzi & Achey
                                                        Logansport, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jenny R. (Willison) Eggerling,                          May 13, 2016
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        09A02-1511-DR-2012
        v.                                              Appeal from the Cass Superior
                                                        Court
Anthony Willison,                                       The Honorable Thomas C.
Appellee-Petitioner.                                    Perrone, Judge
                                                        Trial Court Cause No.
                                                        09D01-1007-DR-53



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A02-1511-DR-2012 | May 13, 2016             Page 1 of 7
[1]   Jenny Eggerling (Mother) appeals the judgment of the trial court awarding

      physical and legal custody of her three children to their father, Anthony

      Willison (Father), and ordering her to pay $207 in weekly child support.

      Finding no error, we affirm.


                                                    Facts
[2]   Mother and Father have three children who were born in 1997, 2000, and 2004.

      When their marriage was dissolved in 2011, they agreed that they would share

      legal custody of the children and that Mother would have physical custody of

      the children with Father exercising parenting time. However, in 2013, Mother

      attempted to relocate the children to Lafayette. Father objected, and the trial

      court entered an order prohibiting Mother from relocating the children.


[3]   In 2014, Mother and Father agreed to a modification of the original dissolution

      order. The modified order provided that Father would now have physical

      custody of the two oldest children and that both parents would retain joint legal

      custody. Mother and Father also agreed at that time that they would share

      physical and legal custody of their youngest child. The trial court noted that,

      except for custody of the two oldest children, all of its orders were temporary,

      and further proceedings would be held to determine a permanent arrangement.


[4]   Mother and Father had difficulty with this temporary arrangement. On

      October 15, 2014, Father filed a petition asking the trial court to suspend

      Mother’s parenting time after he was informed of a physical altercation between



      Court of Appeals of Indiana | Memorandum Decision 09A02-1511-DR-2012 | May 13, 2016   Page 2 of 7
      their oldest child and Mother. Following a hearing held on December 16, 2014,

      the trial court granted Father’s petition.


[5]   On May 8 and August 11, 2015, the trial court held a hearing to determine a

      permanent custody and support arrangement. At the hearing, the trial court

      heard testimony from Mother, Father, Father’s new wife, the Guardian ad

      Litem (GAL), a family therapist, the youngest child’s therapist, and Mother’s

      therapist. Following the hearing, on October 20, 2015, the trial court issued an

      order granting legal and physical custody of all three children to Father. It also

      ordered Mother to pay $207 in weekly child support. Mother now appeals.


                                   Discussion and Decision
[6]   Mother argues that the trial court erred in awarding legal and physical custody

      of the three children to Father. She also argues that the trial court erred in

      ordering her to pay $207 in weekly child support, as this figure is based on

      Mother’s 2011 income rather than her current income.


                                               I. Custody
[7]   On review of a child custody modification we will not reweigh the evidence or

      judge the credibility of the witnesses and we will consider only the evidence that

      supports the trial court’s decision. Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind.

      Ct. App. 1996). Indiana Code section 31-17-2-21 provides that a trial court may

      not modify a custody order unless it is in the best interests of the child and there

      has been a substantial change in one or more of the factors that the court may

      consider when entering an initial custody order under section 31-17-2-8. That
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      section instructs the trial court to consider all relevant factors, including the age

      and sex of the child; the wishes of the children and the parents; the child’s

      interaction with the parents; and the child’s adjustment to his or her home,

      school, and community. I.C. § 31-17-2-8.


[8]   In reaching its decision in this case, the trial court made clear that, in addition

      to the above-mentioned factors, it also considered the factors listed in Indiana

      Code section 31-17-2-15 regarding joint legal custody. That section provides

      that, in deciding whether to award joint legal custody, the trial court shall

      consider things such as “whether the persons awarded joint custody are willing

      and able to communicate and cooperate in advancing the child’s welfare” and

      “the nature of the physical and emotional environment in the home of each of

      the persons awarded joint custody,” among others. I.C. § 31-17-2-15.


[9]   The trial court had ample evidence before it from which it could determine that

      a lack of communication between the parents made continued joint legal

      custody unworkable and contrary to the best interests of the children. The

      youngest child’s therapist testified that Mother and Father found it difficult to

      co-parent. Tr. p. 316. Despite the joint legal custody arrangement, Mother

      failed to inform Father about which therapists the children were seeing. Tr. p.

      223, 505. Following the trial court’s decision to prohibit Mother from moving

      the children to Lafayette, Mother nevertheless enrolled her youngest child in

      extracurricular activities in Lafayette—an action for which she was later held in

      contempt. Appellee’s App. p. 10. These actions suggest an unwillingness on



      Court of Appeals of Indiana | Memorandum Decision 09A02-1511-DR-2012 | May 13, 2016   Page 4 of 7
       Mother’s part to cooperate and communicate with Father to advance the

       interests of the children.


[10]   Furthermore, the trial court had evidence before it indicating that the children

       now wished to reside with their Father. The children were separated when

       Mother and Father agreed that Father should retain custody of the two oldest

       children. The youngest child’s therapist testified that the child wishes to live

       with her Father and that she has a close bond with her older sister and feels that

       she can confide in her. Tr. p. 280, 282. Mother’s relationship with her older

       children has deteriorated—the children have described Mother as “mean” and

       “aggressive”—and the family therapist testified that the children held angry and

       hostile attitudes towards Mother. Tr. p. 22-24, 184.


[11]   Mother argues that Father is primarily responsible for this state of affairs and

       that he “has been the trigger of several obstreperous events between the

       parents.” Appellant’s Br. p. 16. Mother gives no examples of these events nor

       does she provide citations to the record. While Mother rightly points out that

       “[a] parent may not sow seeds of discord and reap improved custody rights,”

       Pierce v. Pierce, 620 N.E.2d 726, 731 (Ind. Ct. App. 1993), her brief does not

       explain how Father has done that here. Mother simply asserts that “Father has

       created the problem from which he now benefits,” without any citation to the

       record in support of this conclusion. Appellant’s Br. p. 17. Mother has failed

       to make even a prima facie showing that Father is responsible for this situation,

       let alone a showing strong enough to convince this Court that the trial court

       acted erroneously by finding in Father’s favor. Mother’s argument is little more

       Court of Appeals of Indiana | Memorandum Decision 09A02-1511-DR-2012 | May 13, 2016   Page 5 of 7
       than a request that we reweigh the evidence and pay no deference to the trial

       court’s decision, which this Court will not do.


                                          II. Child Support
[12]   Mother next argues that the trial court erred in ordering her to pay $207 in

       weekly child support. Mother believes this was error because it is based off of

       the income she earned in 2011. Mother has since remarried and is currently

       voluntarily underemployed. Tr. p. 508.


[13]   Indiana Child Support Guideline 3(A)(3) applies in the case of a voluntarily

       unemployed, or underemployed, parent. It provides:


                If a court finds a parent is voluntarily unemployed or
                underemployed without just cause, child support shall be
                calculated based on a determination of potential income. A
                determination of potential income shall be made by determining
                employment potential and probable earnings level based on the
                obligor’s work history, occupational qualifications, prevailing job
                opportunities, and earnings levels in the community.


       Here, the trial court, after finding that Mother was voluntarily underemployed,

       imputed income to her based on her previous employment as evidenced by a

       2011 child support worksheet that she had previously submitted to the trial

       court.


[14]   Mother argues that her “employment opportunity in 2011 is no longer

       available.” Appellant’s App. p. 21. However, this does not preclude the trial

       court from concluding that Mother could find similar employment today.


       Court of Appeals of Indiana | Memorandum Decision 09A02-1511-DR-2012 | May 13, 2016   Page 6 of 7
       Mother admits she is voluntarily underemployed and she does not argue that

       her employment history as of 2011 is not an accurate measure of her present

       employment potential. Tr. p. 508. Child Support Guideline 3(A)(3) makes

       clear that the trial court may impute income to a parent under circumstances

       such as these. That is what the trial court has done here, and Mother has given

       us no reason to conclude that it was done in error.


[15]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1511-DR-2012 | May 13, 2016   Page 7 of 7
