Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
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:

MICHAEL H. MICHMERHUIZEN                           M. BRUCE SCOTT
Helmke Beams, LLP                                  Barrett & McNagny LLP

                                                                              FILED
Fort Wayne, Indiana                                Fort Wayne, Indiana

                                                                           Nov 13 2012, 9:39 am
                               IN THE
                                                                                   CLERK
                     COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




ROBIN R. GORDON,                                   )
                                                   )
       Appellant-Respondent,                       )
                                                   )
               vs.                                 )    No. 92A05-1205-DR-279
                                                   )
BENNY B. GORDON,                                   )
                                                   )
       Appellee-Petitioner.                        )


                     APPEAL FROM THE WHITLEY SUPERIOR COURT
                            The Honorable Douglas Fahl, Judge
                             Cause No. 92D01-1009-DR-281




                                        November 13, 2012



                 MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                     Case Summary and Issue

          After dissolving the marriage of Benny Gordon (“Father”) and Robin Gordon

(“Mother”), the trial court ordered joint legal custody of their child, S.G. Mother raises one

issue for our review, which we restate as whether the trial court abused its discretion by

ordering joint legal custody. Concluding the trial court did not abuse its discretion, we

affirm.

                                   Facts and Procedural History

          Mother and Father were married in 1995 and had one child, S.G., who was born in

1997. In 2010, Father petitioned for dissolution of their marriage. The trial court issued a

provisional order, awarding Mother sole custody of S.G. In May of 2011, the trial court

modified its provisional order, but Mother maintained sole custody of S.G. After a final

hearing, the trial court entered its findings of fact and conclusions of law, including:

                                      COURT’S FINDINGS
          The Court now FINDS the following:
          1. [Father] has lived in Indiana for six months prior to the filing of this action
          and in Whitley County for three months prior to the filing of this action.
          ***
          5. There has been an irretrievable breakdown of the marriage.
          6. [Mother] has been the primary caregiver of the minor child.
          7. The minor child suffers from numerous medical conditions including
          allergies, asthma, as yet undiagnosed stomach issues, ADHD and further
          struggles educationally due to his diagnosed dyslexia and memory deficiencies.
          ***
          13. [Father] and [Mother] have a history of being unable to communicate
          effectively. The Court would find that both parties have engaged in behavior
          that puts their own needs and feelings above the best interest of the minor
          child.
          14. The Court would find that the parties would benefit from enrollment and
          completion of the Family Enrichment Series provided by Right Relations, Inc.



                                                  2
       15. That [Father] is employed . . . . [Father] has reduced his overtime hours
       on some days and weekends so that he can exercise parenting time . . . .
       16. That [Mother] is not employed and has not been employed for a consistent
       period of time . . . . [Mother] has a college degree and [Father] has no such
       post-secondary degree. Testimony was given by both parties that for years
       [Father] urged [Mother] to get a job and [Mother] refused other than procuring
       part time employment once for a few months with the United States Census.
       [Father] testified that he was forced to work such substantial overtime hours to
       cover all the household expenses due to [Mother]’s refusal to work and that his
       income was not always enough to cover such expenses; the Court finds this
       testimony to be credible looking at the balance sheets as well as the evidence
       and testimony of the debts and liabilities of the parties. The parties both
       testified that [Mother] was physically able to work.
       ***
                          CONCLUSIONS OF LAW AND ORDER
       ***
       2. [Mother] shall have primary physical custody of the minor child and
       [Father] shall have parenting time pursuant to the Indiana Parenting Time
       Guidelines.
       3. It is in the best interests of the minor child that the Parties share joint legal
       custody.
       ***
       9. The Court would find that the parties would benefit from enrollment and
       completion of the Family Enrichment Series provided by Right Relations, Inc.
       and would order the parties to provide proof of enrollment within thirty (30)
       days from the date of this decree.

Appellant’s Appendix at 9-16. Additionally, the trial court’s entry listed the terms Mother

and Father agreed to, including Mother having primary physical custody of S.G., Father

having parenting time with S.G., Father paying child support pursuant to the Indiana Child

Support Guidelines,1 the method of paying for any uninsured medical expenses for S.G.,

Father maintaining health insurance for S.G., Father continuing to reside in the marital

residence until it can be sold and the proceeds split equally, and splitting any refund from

their joint tax return for 2010.


       1
           While the trial court’s order actually refers to child support being based on the Indiana Parenting

                                                      3
        Mother moved to correct error, and the trial court denied her motion. Mother now

appeals. Additional facts will be provided as appropriate.

                                      Discussion and Decision

                                        I. Standard of Review

                When reviewing a custody determination, we afford the trial court
        considerable deference as it is the trial court that observes the parties’ conduct
        and demeanor and hears their testimonies. We review custody modifications
        for an abuse of discretion with a preference for granting latitude and deference
        to our trial judges in family law matters. We will not reweigh the evidence or
        judge the credibility of witnesses. Rather, we will reverse the trial court’s
        custody determination based only upon a trial court’s abuse of discretion that is
        clearly against the logic and effect of the facts and circumstances or the
        reasonable inferences drawn therefrom. It is not enough that the evidence
        might support some other conclusion, but it must positively require the
        conclusion contended for by the appellant before there is a basis for reversal.
                When the trial court enters special findings of fact and conclusions
        based on those findings pursuant to Indiana Trial Rule 52(A), we apply a two-
        tiered standard of review: whether the evidence supports the findings and
        whether the findings support the order. To determine whether the findings or
        judgment are clearly erroneous, we consider only the evidence favorable to the
        judgment and all reasonable inferences flowing therefrom.

In re Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012) (quotations and citations

omitted), trans. denied.

                                       II. Joint Legal Custody

        “The court may award legal custody of a child jointly if the court finds that an award

of joint legal custody would be in the best interest of the child.” Ind. Code § 31-17-2-13.

Who is awarded legal custody determines who will make “the major decisions concerning the

child’s upbringing, including the child’s education, health care, and religious training.” Ind.

Code § 31-9-2-67. Indiana Code section 31-17-2-15 provides:


Time Guidelines, we assume it meant the Child Support Guidelines. Regardless, this issue is not in dispute.
                                                    4
        In determining whether an award of joint legal custody under section 13 of this
        chapter would be in the best interest of the child, the court shall consider it a
        matter of primary, but not determinative, importance that the persons awarded
        joint custody have agreed to an award of joint legal custody. The court shall
        also consider:
        (1) the fitness and suitability of each of the persons awarded joint custody;
        (2) whether the persons awarded joint custody are willing and able to
        communicate and cooperate in advancing the child’s welfare;
        (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) whether the child has established a close and beneficial relationship with
        both of the persons awarded joint custody;
        (5) whether the persons awarded joint custody:
                (A) live in close proximity to each other; and
                (B) plan to continue to do so; and
        (6) the nature of the physical and emotional environment in the home of each
        of the persons awarded joint custody.

        Mother does not contest any of the trial court’s findings of fact.2 Mother argues the

trial court abused its discretion because its findings do not support a conclusion that joint

legal custody is proper. Father contends that despite the parties’ communication problems,

their relationship does not amount to a “battleground,” and thus joint legal custody is still

appropriate. Appellee’s Brief at 6 (citing Aylward v. Aylward, 592 N.E.2d 1247, 1252 (Ind.

Ct. App. 1992)).

        Mother is correct that she and Father did not agree to joint legal custody, and that the

trial court found Mother and Father “have a history of being unable to communicate

effectively.” Appellant’s App. at 10. However, as Father points out, the trial court also listed

several key aspects of the dissolution of their marriage that Mother and Father agreed upon

outside of court, including the physical custody of S.G., child support, health insurance, and a


        2
           Mother mistakenly argues the trial court’s findings included a finding that it would be in the best
interest of S.G. for the parties to have joint legal custody. The trial court made a conclusion to that effect,

                                                      5
resolution for the marital residence. In determining “whether [Mother and Father] are willing

and able to communicate and cooperate in advancing [S.G.]’s welfare,” despite their having

communication issues, the fact that they were able to agree to so many key aspects of the

dissolution of their marriage indicates they are able to communicate and cooperate when it

comes to advancing S.G.’s welfare. Further, the trial court’s findings demonstrate that S.G.’s

needs–namely his education, tutoring, counseling, and medical needs–were being addressed

in a proper fashion. It may be the case that Mother primarily handled those issues for S.G.,

but it is important to note that the trial court did not find that Mother and Father had much

difficulty in agreeing how to resolve S.G.’s needs.

        Additionally, as to whether Mother and Father live in close proximity to each other,

the trial court found that Father lives in Whitley County, Indiana. While the finding could

have been more explicit, it indicates that Mother and Father live in relatively close proximity

to each other. Further, Mother admits that this factor of Indiana Code section 31-17-2-15

“was clearly met.” Appellant’s Reply Brief at 3.

        Even if Mother and Father have difficulty communicating and do not immediately

reach consensus while making decisions, as Mother points out, the trial court’s findings

demonstrate that they resolved various issues on their own pertaining to the dissolution of

their marriage, and S.G.’s needs have been met without substantial disagreement between the

parties. Additionally, the parties live in close proximity to each other. Thus, the trial court’s

findings support its conclusion that joint legal custody is in the best interest of S.G, and the

trial court did not abuse its discretion.


rather than a finding.
                                               6
                                         Conclusion

       The trial court did not abuse its discretion in ordering Mother and Father to share joint

legal custody of S.G., and we therefore affirm.

       Affirmed.

BAKER, J., and BRADFORD, J., concur.




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