      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                  FILED
      regarded as precedent or cited before any                         May 30 2017, 9:43 am
      court except for the purpose of establishing
                                                                             CLERK
      the defense of res judicata, collateral                            Indiana Supreme Court
                                                                            Court of Appeals
      estoppel, or the law of the case.                                       and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Andrea L. Ciobanu                                       Margaret M. Christensen
      Ciobanu Law, PC                                         Bingham Greenebaum Doll, LLP
      Indianapolis, Indiana                                   Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Jennifer Sanders,                                       May 30, 2017
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              42A01-1606-DR-1340
              v.                                              Appeal from the Knox Superior
                                                              Court
      Bryan Sanders,                                          The Honorable Gara U. Lee,
      Appellee-Respondent.                                    Judge
                                                              The Honorable Gregory A. Smith,
                                                              Special Judge
                                                              Trial Court Cause No.
                                                              42D01-1101-DR-1



      Mathias, Judge.


[1]   The Knox Superior Court denied a motion to modify custody filed by Jennifer

      Sanders (“Mother”). Mother appeals and presents two issues for our review,


      Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017        Page 1 of 28
      which we restate as (1) whether the trial court denied Mother due process when

      it denied her motion without a full evidentiary hearing, and (2) whether the trial

      court erred when it concluded that Mother had not established a substantial

      change in circumstances that would justify modification of custody.

[2]   We affirm.


                                 Facts and Procedural History

[3]   Mother met Bryan Sanders (“Father”) in college, and the couple married in

      December 2004. They moved to Sandborn, Indiana, where Father, who had a

      degree in religious studies, was employed as minister at the Sandborn First

      Christian Church. Mother, too, had a degree in religious studies and served as

      the youth minister for the church. In May 2008, the parties had a daughter,

      K.S. (“Daughter”).


[4]   In November 2010, the couple separated, and Mother moved in with her

      parents in Burton, Michigan, her home town. Daughter remained in Sandborn

      with Father. On January 5, 2011, Mother filed a petition to dissolve the parties’

      marriage, and Father filed a counter-petition on January 11, 2011, also seeking

      dissolution. On February 18, 2011, the parties filed with the trial court a

      provisional custody and parenting-time agreement, which the trial court

      accepted. The parties then reached a final settlement agreement, which the trial

      court approved. The trial court then entered a dissolution decree on March 7,

      2011, which incorporated the terms of the final settlement agreement.

[5]   Regarding child custody, the settlement agreement provided:
      Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 2 of 28
              The parties shall share joint legal custody of the parties’ minor
              child. The parents agree that the child’s primary physical
              residence shall be with the Father subject to Mother’s parenting
              time. The parties have agreed to share parenting time equally.
              (See attached Parenting Time Calendar). In the event of a
              disagreement they will use the Indiana Parenting Time
              Guidelines where distance is a factor. The parties agree to allow
              for flexibility and addition or changes of dates as along as each
              party is in agreement.


      Appellant’s App. p. 33. Attached to the settlement agreement was a parenting

      time calendar for the year 2011, with parenting time shared equally. Daughter

      was not yet three years old at the time, and she had not yet begun to attend

      school.


[6]   On May 30, 2012, Mother filed a motion to modify custody. Mother alleged

      that there had been a substantial and continuing change in the relationship of

      Father and Daughter and in the custodial and living arrangements of both

      Mother and Father; she also alleged that the existing custody order was no

      longer in Daughter’s best interests. The trial court appointed attorney Shawna

      Webster as Daughter’s guardian ad litem (“GAL”). The GAL filed a report on

      July 15, 2013, recommending that Father remain Daughter’s primary physical

      custodian. The trial court held a hearing on Mother’s petition on November 21,

      2013, but instead of presenting any evidence, the parties informed the trial court

      that they had reached an agreement. This agreement provided that Daughter

      would spend the school year with Father and that Daughter would spend spring

      break, summer vacation, and Thanksgiving break with Mother; both parties


      Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 3 of 28
      would split Christmas break evenly. The trial court accepted the agreement and

      entered an order incorporating the agreement on December 2, 2013.1

[7]   Less than one year later, on August 4, 2014, Mother filed another petition to

      modify custody, seeking primary physical custody of Daughter.2 The GAL was

      unable to attend the scheduled June 23, 2015 hearing on Mother’s petition and

      sought to be excused from the hearing or, in the alternative, that the hearing be

      continued. The trial court issued an order excusing the GAL from attending the

      hearing, but Father requested that the trial court reconsider its ruling and

      instead continue the hearing so that the GAL could be present to testify and be

      cross-examined. Mother did not file a response to this motion, and the trial

      court granted it and set the hearing for November 18, 2015.


[8]   On November 4, 2015, the GAL filed a report with regard to Mother’s second

      motion to modify custody. This time, the GAL recommended that Daughter

      stay with Mother during the school year because the school system where

      Mother lived in Michigan offered a more balanced schedule. Under the existing

      custody agreement, Daughter was with Father 281 days per year, and with

      Mother for 84 days. Under the GAL’s proposed custody arrangement,




      1
          The agreement itself provided that the effective date of the agreement was November 21, 2013.
      2
       On August 8, 2014, Mother filed a motion for change of judge. The trial court granted the motion for
      change of judge, and Judge Gregory Smith of the Daviess Circuit Court was appointed as special judge on
      August 15, 2014.

      Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017                 Page 4 of 28
       Daughter would be with Mother for 229 days per year and with Father for 136

       days.

[9]    On November 13, 2015, Father filed a motion for the trial court to conduct an

       in-camera interview with Daughter, which the trial court granted three days

       later. The hearing on Mother’s motion to modify custody was then continued to

       March 11, 2016.

[10]   At the hearing on the motion to modify custody, both parties appeared with

       counsel. The court met with both counsel in chambers before the hearing

       began, and Father withdrew his motion for an in-camera interview of Daughter.

       When the hearing began, the trial court indicated that it desired to meet the

       GAL in person to discuss the GAL’s second report. The trial court also

       indicated that it did not need to hear any testimony to make a conclusion but

       told the parties that they could submit documentary evidence if they so desired.

       Mother’s counsel made no objection to the trial court’s procedure and indicated

       that she had no additional documentary evidence to present. Father’s counsel

       also made no objection but did submit one exhibit, a school-year parenting-time

       comparison he had prepared, and this exhibit was admitted without objection.

       The trial court also requested that the parties submit proposed orders.


[11]   On April 8, 2016, the GAL submitted a supplemental report in which she

       responded to the schedule proposed in Father’s submitted exhibit. The GAL

       repeated her recommendation that Daughter attend school with Mother in

       Michigan, noting that the balanced schedule permitted Daughter to be with


       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 5 of 28
       both parents each month, whereas attending school where Father lived in

       Indiana would require Daughter to be away from Mother for four months.

[12]   On May 12, 2016, the trial court issued its order, which provides in relevant

       part as follows:

               The Court notes that the guardian ad litem, Shawna Webster,
               has thoughtfully investigated this family and their current factual
               situations and has filed her reports with extensive and detailed
               analysis of each of the parties, their feelings and attitudes, the
               child in question, and the school calendars of the school systems
               that may be involved with this child, as well as the effect on
               overnights for each parent.


               The Court further notes at the outset that this case is unique
               amongst many in that the parents are not bitter or manipulative,
               have communicated extraordinarily well, and both truly want the
               best for their daughter. By all accounts, neither party has
               criticized the other or made any attempt to denigrate the other’s
               parenting abilities. However, over the course of the past two
               years and after having gone to court previously concerning
               custody modifications, it appears that the communication
               between the parents has lapsed to a lower level and each parent is
               experiencing the paranoia that comes from failing to
               communicate and discuss matters, and results in parents
               imputing less than honorable intentions to the other parent.


               This cause allowed counsel to stipulate to the admission of
               exhibits outlining custody and parenting time proposals and the
               guardian ad litem’s reports, all without contentious cross-
               examination by counsel. Counsel vigorously argued in their
               client’s positions in chambers and summarized the same in open
               court.



       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 6 of 28
        The Court having taken this matter under advisement and
        reviewed the proposed entries, the report and supplement thereto
        filed by the guardian ad litem, and the printouts illustrating the
        parenting time for each parent under the competing parenting
        plans as affected by the school calendars of the North Knox
        Indiana School (where [Daughter] now attends), and the year-
        round school calendar used in Davison, Michigan, where the
        mother now resides.


        FACTUAL BACKGROUND:


                                               ***


        20. At the time of the November 4, 2015 [GAL] report
        [Daughter] was in second grade in the North Knox school
        systems and “has excelled in school.” The guardian ad litem
        reported that her “. . . impressions of Kendall have not changed.
        She is a bright, energetic, well-adjusted little girl.”


        21. In the interim since the last modification and agreed entry,
        the mother continued to live in Michigan. [Mother] had recently
        accepted a new position with General Motors at the Flint
        Michigan assembly plant. It was closer to her home and she was
        able to go from nights to the first shift working from 7:00 a.m. to
        3:00 p.m.


        22. The guardian ad litem also reported that since her last
        report [Father] had remarried. His new spouse, Julie Sanders, has
        custody of her two (2) daughters, [A.S.], age 16 and [Al.S.], age
        15. Both Julie and her daughters moved into the home where
        [Father] and [Daughter] reside in Sandborn, Indiana.




Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 7 of 28
        COURT’S FINDINGS AND ORDER:


        23. The Court notes that in the guardian ad litem’s first report
        in July, 2013, she had recommended against modification
        following sound legal reasoning and precedent, including factors
        such as: mother’s work schedule (which was nights at that time)
        as opposed to father’s very flexible hours as the pastor of his
        church. A change at that time would have resulted in [Daughter]
        being cared for by her “Nana” [maternal grandmother]. And
        while [Daughter] had a great relationship with her Nana, the
        guardian ad litem noted that this did not make sense when the
        father was perfectly capable and available to care for [Daughter].
        Secondly, the guardian ad litem recognized that the burden of
        proof was on the mother to show that a substantial and
        continuing change in one or more of the statutory factors
        affecting custody had occurred. She noted that the mother could
        not point to any change in the statutory factors being present
        other than “[Daughter] will be attending kindergarten.” The
        guardian ad litem acknowledged that she believed in [her] first
        report that “both parties should have contemplated this at the
        time they entered into the [custody] Agreement.” Therefore, the
        guardian ad litem was forced to conclude that there had not been
        a change of circumstances sufficient to warrant a modification of
        custody. The third concern the guardian ad litem noted was over
        mother’s health conditions and concerns that she could not care
        for her child if she were suffering from the headaches and
        depression [that] she had experienced prior to and following the
        dissolution of marriage.


        24. In the guardian ad litem’s most recent reports of
        November 4, 2015, and the Supplemental Report filed April 8,
        2016, the guardian ad litem advocates for possible modification
        of the current order and recommends that the parties share joint
        legal and physical custody of [Daughter], with [Daughter] living
        with her mother during the school year to allow her to take


Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 8 of 28
        advantage of the balanced calendar used by the Michigan school
        system.


        25. Under the guardian ad litem’s proposal, the parenting time
        arrangements of the current order would change from the mother
        having eighty-one (81) overnights (plus three overnights if she
        travels to Knox County), as opposed the father’s current two
        hundred eighty-one (281) overnights. Under the proposed
        modification, mother would then have two hundred twenty-nine
        (229) overnights to the father’s one hundred thirty-six (136). The
        guardian ad litem believed this was in keeping with the parties’
        prior attempts to maximize and equalize the parenting time
        between the two parents.


        26. The guardian ad litem’s November 2015 report shows that
        the mother’s position is that she feels she is being cut out of her
        daughter’s life or replaced in [Daughter]’s life, and the father feels
        harassed by the mother’s additional requests for parenting time,
        and he pulled back from doing the extra effort that he used to do
        for mother prior to his remarriage [and] [Daughter] beginning
        elementary school.


        27. The guardian ad litem aptly summed up the parents’
        decline in their communication as “both parents react out of fear
        of losing their daughter. That time and changes in circumstances
        have weakened mother and father’s ability to communicate with
        one another.”


        28. The Court finds that the only real change has been that the
        Michigan school system has a balanced calendar. There is no
        evidence or even contention that the Michigan school is better
        than the North Knox school system. The only contention is that
        it would allow mother to have more overnights and father to be
        in the position of having a significant reduction in his overnights.
        A role reversal without the required showing.

Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 9 of 28
        29. The Court finds that the mother has not carried her burden
        of proof to show that there is a change in one or more of the
        statutory factors and that it is in the best interest of [Daughter] to
        modify the current custody and parenting time order.


        30. While no evidence has been submitted about any change
        in the mother’s health or depression, there was some evidence
        that she was no longer working nights. However, the Court notes
        father’s submission he indicates that she is now back to working
        nights, which would raise the same concerns as in July, 2013.
        However, having no direct evidence or testimony concerning
        those issues, the Court does not consider the same and gives the
        same absolutely no weight.


        31. While school related issues involving a child can factor
        into a custody modification (see In Re Paternity of C.S., 964
        N.E.2d 879 (Ind. Ct. App. 2012), (where the court considered the
        child’s aptitude, maturity and readiness for kindergarten as a
        substantial change in circumstances warranting a modification)
        there is no evidence here that [Daughter] has done anything but
        excel at school and that she is well-adjusted, has lots of friends
        and has only attended the North Knox school system. In short,
        there is no evidence to show that changing custody and schools is
        in [Daughter]’s best interest simply because of the difference in
        the school calendars. (See also: In Re the Paternity of E.R.B., 44
        N.E.3d 840 (Ind. Ct. App. 201[5])).3


        32. Pursuant to Ind. Code 31-17-2-8, the factors relevant to
        custody determinations to be considered by a Court are: (1) The
        age and sex of the child; while [Daughter] has gotten a couple of
        years older she is still a young girl in elementary school. The


3
 We note that our decision in E.R.B. was an unpublished memorandum decision. Pursuant to Appellate
Rule 65(D), “a memorandum decision shall not be regarded as precedent and shall not be cited to any court
except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.”

Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017          Page 10 of 28
        Court finds no significant change in this factor. (2) The wishes of
        the child’s parent or parents; it is clear that both parents would
        love to have [Daughter] reside with them all of the time if
        possible, so the Court finds no significant change in this factor.
        (3) The wishes of the child, with more consideration given to the
        child’s wishes if the child is at least 14 years of age; the Court
        finds no direct comments from [Daughter] but notes that the
        guardian ad litem reports that [Daughter] loves all of her family
        and her extended family and is an exceedingly well-adjusted little
        girl. The Court finds no significant change in this factor. (4) The
        interaction and interrelationship of the child with the child’s
        parent or parents, the child’s siblings, and any other person who
        may significantly affect the child’s best interest; the Court finds
        that the guardian ad litem reported that [Daughter] is extremely
        fond of her parents, that she has a great relationship with both of
        her parents, and that she has a great relationship with her
        stepmother as well as her step sisters, and also enjoys being
        around her grandparents and her extended family. The Court,
        therefore, finds there has not been a significant change in this
        factor. (5) The child’s adjustment to the child’s home. school,
        and community; again the Court finds that the guardian ad
        litem’s report and the supplement thereto as well for prior report
        incorporated by reference in her November, 2015 report all seem
        to indicate that [Daughter] is very well-adjusted in her home at
        Sandborn and in her school, and is doing great both
        educationally and socially, and, therefore, finds there has been no
        significant change in this factor. (6) The mental and physical
        health of all individuals involved; other than the guardian ad
        litem’s concern from her prior reports over the mother’s health
        and mental health issues, no new evidence has been submitted
        about the mother to show either an improvement or decline in
        her health status. There was no evidence concerning any health
        or mental health concerns involving the father or stepmother or
        any of the stepchildren residing in father’s home. Therefore, the
        Court finds that there has been no significant change in this
        factor. (7) Evidence of a pattern of domestic or family violence by
        either parent; the Court notes that there has not been any
Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 11 of 28
        evidence or even suggestion or inference that there ever was any
        pattern of domestic or family violence between these two fine
        parents. (8) Evidence that the child has been cared for by a de
        facto custodian; The Court finds there has been no evidence to
        suggest that a de facto custodian is involved.


        33. The Court, therefore, finds that while both school systems
        may be equally good schools, the calendar used does not arise to
        a substantial and continuing change in one or more [of] the
        statutory factors rendering the Court’s current custody order
        unreasonable such that it would no longer be in [Daughter]’s best
        interest. The fact that [Daughter] aged a year or 2 since the last
        order and has started school, and is in fact completing the 2nd
        grade as of the date of this order, was or should have been within
        the part[ies]’ contemplation at the time of the divorce and at the
        time of the last modification and agreed entry in this cause.


        34. The real change has been in the parties’ deterioration of
        their previously exceptional communications concerning
        parenting time that they had exhibited in the past years,
        especially prior to [Daughter] beginning elementary school. That
        level of communication is in [Daughter]’s best interest and it is
        why she is currently doing so well and is so well-adjusted in
        school and is so comfortable with all of her family. Both parents
        exerting more effort to attempt to regain that prior level of
        communication would serve to alleviate a great many of the
        other concerns. Mother would “feel” less cut out and father
        would “feel” less like he is being pressured. Father should be
        aware that his remarriage is not a reason to cut back on his
        parental communications about [Daughter] and about parenting
        time with the mother. Mother should also keep in mind that time
        and distance and just life in general have changed not only in
        father’s residence but in her residence, and that it was her choice
        to move back to Michigan.



Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 12 of 28
        35. This Court finds that by all accounts from counsel and
        from the guardian ad litem and the very highly unusual praise
        that [Daughter] has received from all involved that these parents
        have done an exceptional job and are very capable of continuing
        to work out parenting time plans that will allow Kendall to have
        as much access and contact with both parents as possible. The
        Indiana Parenting Time Guidelines refer to parenting as
        “coparenting.” Thus it is the parents’ jobs to work together as
        “co-parents” in raising the child that they both brought into this
        world. This demands that each continue to treat the other with
        respect and consideration. By all accounts if any two parents can
        achieve this level of parenting and communication in the best
        interests of their child, [Mother] and [Father] can do so.


        36. This Court recognizes that if the parents were interested in
        trying to achieve a more equal parenting time arrangement given
        the distance involved as is suggested by the guardian ad litem, the
        Court would urge the parents to consider agreeing to modify the
        current custody parenting time arrangement along the lines as
        was suggested by Attorney Webster in her Supplemental Report
        of Guardian Ad Litem filed April 8, 2016, as contained in the last
        paragraph on page 2 thereof. She points out that under the
        proposal with mother having custody, the mother would giving
        up all “free time” with [Daughter] to maximize the father’s time,
        but recognizes that in the current Order, the converse is not true.
        She suggested that additional time could be provided to the
        mother by giving her every fall break, Presidents’ Day weekend.
        Easter Break, and a week or so of the father’s time from the
        summer. She points out that some arrangement would have to be
        made so that each parent can plan vacations during the summer
        months which may be easier to do under the North Knox school
        system calendar.


        37. With little or no demonstrated change in any of the
        statutory factors or other circumstances rendering the current
        custody and parenting time order unreasonable and no longer in

Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 13 of 28
               [Daughter]’s best interests, this Court declines to modify the
               custody arrangement as agreed previously between the parties.


               IT IS THEREFORE ORDERED, ADJUDGED, AND
               DECREED that the mother’s Petition for Modification of
               Custody is denied.


               IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
               that the parties shall continue to share joint legal custody of
               [Daughter], and that [Father] shall continue to be [Daughter]’s
               primary and physical custodian. The Court further ORDERS
               that the parties confer and arrange a parenting time/visitation
               schedule which shall maximize [Mother]’s access to [Daughter].


       Appellant’s App. pp. 12-23 (italics in original). From this order, Mother now

       appeals.


                Applicable Statutory Rule and Standard of Review

[13]   Modification of child custody may occur only when a parent can demonstrate

       both that (1) “modification is in the best interests of the child,” and (2) “there is

       a substantial change in one or more of the factors the court may consider” in its

       initial custody determination. Ind. Code § 31-14-13-6. These factors include: (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 years of age; (4) the interaction and interrelationship of the child

       with the child’s parents, siblings, and any other person who may significantly

       affect the child’s best interest; (5) the child’s adjustment to home, school, and

       community; (6) the mental and physical health of all individuals involved; (7)


       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 14 of 28
       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. Ind. Code §

       31-14-13-2.

[14]   In this case, Mother filed the motion to modify custody, and she therefore had

       the burden to demonstrate the requisite change in circumstances. See Heagy v.

       Kean, 864 N.E.2d 383, 388 (Ind. Ct. App. 2007), trans. denied. By appealing the

       denial of her motion to modify custody, Mother appeals from a negative

       judgment. See Nunn v. Nunn, 791 N.E.2d 779, 783 (Ind. Ct. App. 2003). We will

       reverse a negative judgment only if it is contrary to law, meaning that the

       evidence points unerringly to a conclusion different from that reached by the

       trial court. Id. It is not enough that the evidence might support some other

       conclusion; it must instead positively require the conclusion contended for by

       the appellant before there is a basis for reversal. Kirk v. Kirk, 770 N.E.2d 304,

       307 (Ind. 2002). “[I]t is particularly difficult for a reviewing court to second-

       guess a situation that centers on the personalities of two parents battling for

       control of a child.” Id. at 308.


[15]   Indiana appellate courts have a preference for granting latitude and deference to

       our trial courts in family law matters. Wolljung v. Sided, 891 N.E.2d 1109, 1111

       (Ind. Ct. App. 2008) (citing Kirk, 770 N.E.2d at 307). On appeal, we will not

       reweigh the evidence or judge the credibility of the witnesses. Id. Instead, we

       view only the evidence favorable to the trial court’s judgment and the

       reasonable inference that may be drawn from this evidence. Id. Judgments in

       custody matters generally turn on essential factual determinations and will be

       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 15 of 28
       set aside only when they are clearly erroneous. Id. at 1112. We will not

       substitute our own judgment if any evidence or legitimate inferences support

       the trial court’s judgment. Id.


[16]   Furthermore, it appears that the trial court here voluntarily entered special

       findings. In such a situation, the specific factual findings control only the issues

       that they cover, and a general judgment standard applies to issues upon which

       there are no findings. Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013),

       aff’d on reh’g, 4 N.E.3d 666. It is not necessary that each and every finding be

       correct, and even if one or more findings are clearly erroneous, we may affirm

       the judgment if it is supported by other findings or is otherwise supported by the

       record. Id. We may affirm a general judgment with sua sponte findings upon any

       legal theory supported by the evidence introduced at trial. Id. Although sua

       sponte findings control as to the issues upon which the court has found, they do

       not otherwise affect our standard of review of general judgment, and we may

       look both to other findings and beyond the findings to the evidence of record to

       determine if the result is against the facts and circumstances before the trial

       court. Id.


                    I. Mother Waived Her Right to a Full Evidentiary Hearing

[17]   Mother first claims that the trial court denied her due process when it failed to

       hold a full evidentiary hearing on her motion to modify custody.


[18]   Procedural due process must be provided to protect the substantive rights of the

       parties in child custody proceedings, and an opportunity to be heard is essential

       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 16 of 28
       before a parent can be deprived of custody. Jendreas v. Jendreas, 664 N.E.2d 367,

       370 (Ind. Ct. App. 1996) (citing Van Etta v. Van Etta, 583 N.E.2d 767, 768 (Ind.

       Ct. App. 1991)). The relevant statutes contemplate an evidentiary hearing to

       determine whether there was a substantial change in at least one of the factors

       relevant to the children’s best interests and whether modification would be in

       the children’s best interests. In re Paternity of R.A.F., 766 N.E.2d 718, 726 (Ind.

       Ct. App. 2002) (citing Alexander v. Cole, 697 N.E.2d 80, 83 (Ind. Ct. App. 1998);

       Ind. Code § 31-17-2-8; Ind. Code § 31-17-2-21).


[19]   Here, the trial court held a meeting in chambers with counsel for both Mother

       and Father. At the start of the hearing, the trial court made it clear to both

       parties that it did not need to hold a full evidentiary hearing as most of the basic

       facts were undisputed. The trial court indicated its desire to meet with the GAL

       but stated that it did not feel it necessary to hear any testimony. The trial court

       also told both parties that they could submit any documentary evidence they

       wished the court to consider. Mother made no objection to this summary

       procedure and indicated that she did not have any documentary evidence to

       submit to the court.

[20]   We find this case to be similar to Bogner v. Bogner, 29 N.E.3d 733, 739 (Ind.

       2015), where the trial court held a summary hearing on the father’s motion to

       modify his support obligation. Father did not object to this and made no

       objection to Mother’s exhibits. Id. On appeal, our supreme court noted:


               Summary proceedings function to efficiently resolve disputes by
               allowing parties and the court to forego the use of formal rules of
       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 17 of 28
               procedure and evidence and instead allow the court to base its
               findings and conclusions upon the arguments of counsel and
               limited evidence. Summary proceedings commonly take place
               when parties are not disputing essential facts, but rather the legal
               outcome compelled by those facts.


       Id. Because neither party objected to the summary nature of the proceedings,

       the court held that the father had waived any objection to the summary nature

       of the proceeding: “if [f]ather did not want to proceed summarily and believed

       that a full evidentiary hearing was necessary, that objection should have been raised

       at the time of the hearing. Only at that point would it be appropriate for [f]ather to

       assert that there was other evidence relevant to the modification

       determination.” Id. at 741 (emphasis supplied); see also Reynolds v. Reynolds, 64

       N.E.3d 829, 834 (Ind. 2016) (holding that the father failed to preserve any error

       regarding the summary nature of contempt proceeding by failing to object to the

       form of the proceeding).

[21]   Here, Mother was represented by counsel, and when the trial court indicated its

       desire to proceed without a full hearing, Mother made no objection. Under

       these facts and circumstances, Mother has waived any issue regarding the

       nature of the proceedings. See Bogner, 29 N.E.3d at 741.


[22]   Mother claims that the present case is more similar to Wilson v. Myers, 997

       N.E.2d 338 (Ind. 2013). In Wilson, the father was initially awarded primary

       physical custody of the parties’ children. The mother then filed a petition to

       modify custody, seeking primary physical custody of the children. Id. At the

       beginning of the hearing on the mother’s motion, the trial judge announced her
       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 18 of 28
       intent to rule on the motion. Id. at 339. The father then requested an evidentiary

       hearing on custody. Id. The hearing then shifted to the topic of father having

       recorded the audio of the family counseling sessions, during which, as

       characterized by our supreme court, “[n]o courtroom formalities (and few

       civilities) seem to have been observed at all. Parties, attorneys, counselors, and

       the judge talked freely, interrupted, and questioned each other without any

       semblance of order or procedure.” Id. at 341. The trial court then abruptly

       concluded the hearing, saying, “I feel like we’ve wasted a year. And it shouldn’t

       go on any longer. I don’t want to have another in-camera. And I don’t

       understand why we would need an evidentiary hearing. Because I want to grant

       the Amended Motion to Modify Custody to give both the children to [the

       mother].” Id. at 339. The court then requested the mother prepare and file an

       order consistent with its announced decision, and no witnesses were heard or

       other evidence presented. Id.


[23]   Our supreme court reversed the trial court, noting that the trial court’s order

       contained no mention of whether the modification of custody was in the best

       interests of the children, nor was there any mention of a substantial change in

       any of the factors a trial court is required to consider in modifying custody. Id.

       at 341. Although the trial court referenced “the whole picture” in making its

       decision, it provided no insight into what was contained in that picture before

       simply announcing that it planned to grant the mother’s motion to modify

       custody. Id. The trial court did contact the family counselors directly, but

       nothing during those conversations was reflected in the record, and nothing in

       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 19 of 28
       the transcript of the hearing related to any of the factors enumerated in Indiana

       Code section 31-17-2-8. Thus, the court could not assume these factors were

       considered. Id.


[24]   The mother argued that the father had waived his argument with regard to the

       trial court’s process by signing a release authorizing the trial court to contact the

       counselors, not insisting that the witnesses be sworn, and not filing a motion

       requesting specific findings of fact and conclusions of law. Id. The court rejected

       this argument, noting that the children were not represented at the hearing. Id.

       Accordingly, the court reversed the trial court’s order after concluding, “[W]hat

       we are now faced with on appeal is an order directing one parent to hand over

       two children to another parent with no mention or hint that doing so is in

       accordance with the Indiana Code.” Id.


[25]   We consider the present case to be much more similar to Bogner than Wilson.

       Unlike the father in Wilson, Mother did not request an evidentiary hearing on

       the issue of custody. Instead, like the father in Bogner, Mother did not object to

       the trial court’s summary proceeding and did not object to Father’s exhibits or

       present any evidence herself. In fact, Mother indicated to the trial court that she

       had no other evidence to present. See Tr. p. 5 (“The [proposed parenting-time]

       calendars are what they are, they’ll be what they’ll be and as you meet with the

       Guardian Ad Litem, I think that’s the issue and you’ll take that under

       advisement. So, I have nothing else to submit that way.”).




       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 20 of 28
[26]   To paraphrase the Bogner court, if Mother did not want to proceed summarily

       and believed that a full evidentiary hearing was necessary, that objection should

       have been raised at the time of the hearing, as only at that point would it be

       appropriate for Mother to assert that there was other evidence relevant to the

       modification determination. See Bogner, 29 N.E.3d at 741. Having failed to

       object to the trial court’s procedure, Mother cannot now present the issue for

       the first time on appeal. See id. Moreover, here, unlike in Wilson, it is clear that

       the trial court considered the relevant statutory factors and did not announce its

       decision from the bench. Indeed, the trial court entered detailed findings

       supporting its conclusion and considered each and every one of the required

       statutory factors. Moreover, Daughter’s interests were represented by the GAL

       in her various reports to the trial court.


[27]   In short, we conclude that Mother waived any claim regarding the summary

       nature of the trial court’s proceeding by failing to make a contemporaneous

       objection. Perhaps Mother believed that a full evidentiary hearing would be

       unnecessary, as the GAL’s report recommended modifying custody in Mother’s

       favor, but regardless of the reasons, Mother cannot now complain about a

       proceeding that she had no objection to at the time.4




       4
        Mother also summarily claims that “[t]o the extent that Father argues this substantive right is waived,
       Mother would assert that this would constitute fundamental error.” Appellant’s Br. at 10. However, Mother
       does not further develop this argument, and we therefore consider it waived. See York v. Frederic, 947 N.E.2d
       969, 979 (Ind. Ct. App. 2011) (noting that a party waives an issue where the party fails to develop a cogent
       argument or provide adequate citation to authority and portions of the record) (citing Ind. Appellate Rule
       46(A)(8)(a)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017              Page 21 of 28
[28]   Mother argues that she should have been afforded the opportunity to cross-

       examine the GAL regarding her supplemental report, which was filed after the

       hearing. She also claims that she could not have waived any objection to the

       trial court’s consideration of the GAL’s supplementary report because it was

       submitted after the hearing. However, the trial court indicated at the hearing

       that it desired to meet with the GAL, to which Mother had no objection. As

       noted by Father, the GAL’s supplemental report was filed before the deadline

       for the parties to submit their proposed entries. Thus, if Mother desired to cross-

       examine the GAL regarding the supplemental report or had any objection to

       the trial court considering this report, she could have made the trial court aware

       of her objection and desire to cross-examine the GAL. Instead, Mother allowed

       the trial court to consider the supplemental report without objection. This is not

       surprising; in her supplemental report, the GAL repeated her prior

       recommendation that Daughter attend school with Mother in Michigan, noting

       that the balanced schedule permitted Daughter to be with both parents each

       month, whereas attending school where Father lived in Indiana would require

       Daughter to be away from Mother for four months. Thus, the trial court’s

       consideration of the GAL’s supplemental report could only have helped

       Mother’s position, not hurt it, and we fail to see how any cross-examination

       would have assisted Mother’s argument. Any error was therefore harmless.


                                      II. Sufficiency of the Evidence

[29]   Mother also claims that the trial court’s order was not supported by sufficient

       evidence. Specifically, Mother argues that the trial court’s order was not

       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 22 of 28
       supported by any evidence because the trial court did not hold a full evidentiary

       hearing. However, it was Mother’s burden as the moving party to establish that

       there had been a substantial change in the circumstances and that modification

       was in the best interests of the child. See Heagy, 864 N.E.2d at 388. Yet Mother

       made no objection to the trial court’s summary procedure and presented no

       documentary evidence, nor did she request to present any testimonial evidence.

       Instead, it seems that Mother was content to rely on the GAL’s report, which

       was favorable to her. This strategy having failed, Mother cannot now change

       her mind and request a full evidentiary hearing. If that is what she desired, she

       should have made this clear to the trial court or objected to the trial court’s

       summary procedure.

[30]   To the extent that Mother argues that the trial court could not have sufficiently

       considered Daughter’s best interests without a full evidentiary hearing, we note

       that the trial court’s duty to consider the best interests of the child is

       independent of holding an evidentiary hearing. Indeed, custody disputes are

       often resolved by settlement agreements. Regardless of whether there is any

       hearing on the settlement agreement, the trial court is still obligated to consider

       the agreement of the parties and determine whether the proposed settlement

       agreement is in the best interest of the child or children. See Reno v. Haler, 734

       N.E.2d 1095, 1100 (Ind. Ct. App. 2000), aff’d on reh'g, 743 N.E.2d 1139 (2001)

       (noting that it is the duty of the trial court to determine if the settlement agreed

       to by the parents is in the best interest of the child and that no agreement

       between parties affecting custody automatically binds the trial court); see also


       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 23 of 28
       Stone, 991 N.E.2d at 1001 (noting that when a trial court reviews a custody

       agreement, the “overriding policy concern” is the best interests of the child or

       children) (citing Voigt v. Voigt, 670 N.E.2d 1271, 1278 n.10 (Ind. 1996)).


[31]   Here, the trial court had before it more than just a settlement agreement. As

       detailed in the trial court’s order denying Mother’s motion to modify custody,

       the trial court considered the entire history of this case, including the parties’

       prior settlement agreements and the reports of the GAL, which dated back

       several years. Unlike in Wilson, where there was no indication that the trial

       court had considered the statutory factors, here the trial court’s order listed each

       statutory factor and explained its reasoning as to why the court did or did not

       believe there had been a substantial change in that factor.

[32]   Mother further claims that the trial court erred in determining that there was no

       change in the relevant statutory factors. We disagree. The trial court entered

       detailed findings on each factor, which we address seriatim.


[33]   The first factor is “the age and sex of the child.” I.C. § 31-14-13-2(1). Here, the

       trial court noted that although Daughter had grown slightly since the last

       settlement agreement, she was still a young girl in elementary school. Thus, the

       trial court concluded that there had been no substantial change in this factor.

       Given the undisputed age of Daughter, we cannot say that the trial court clearly

       erred in this conclusion.

[34]   The next statutory factor is “the wishes of the child’s parents.” Id. at § 2(2). The

       trial court noted that both parents desired Daughter to reside with them full

       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 24 of 28
       time, if possible. Thus, the trial court concluded that there had been no

       significant change in this factor, a conclusion we cannot say is clearly

       erroneous.


[35]   The third factor for the trial court to consider is “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.” Id. at § 2(3). Relying on the GAL’s report, the trial court

       determined that Daughter loves both of her parents and her extended family,

       and accordingly found no substantial change in this factor. Again, this is not a

       clearly erroneous conclusion.


[36]   The fourth factor is “the interaction and interrelationship of the child with the

       child’s parents, siblings, and any other person who may significantly affect the

       child’s best interest.” Id. at § 2(4). With regard to this factor, trial court found

       that, based on the GAL’s report, Daughter had a good relationship with both of

       her parents, her grandparents, and extended family. The trial court also

       recognized that Father had remarried and noted that Daughter had a good

       relationship with her new stepmother and stepsisters. Mother claims that

       Father’s remarriage is a substantial change in the circumstances regarding

       Daughter’s interaction and interrelationship with her parents and siblings, but

       the trial court was well within prerogative to conclude that, despite the

       remarriage, Daughter’s interaction and relationship with her parents had not

       substantially changed since the previous custody agreement.




       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 25 of 28
[37]   The fifth factor the trial court that the trial court was required to consider was

       Daughter’s “adjustment to home, school, and community.” Id. § 2(5). The trial

       court found, based on the GAL’s report, that Daughter was doing well at home

       and at school in Indiana and was thriving both educationally and socially.

       Mother presented no evidence to the contrary and does not argue that the trial

       court clearly erred in this regard.

[38]   The next factor the trial court considered was “the mental and physical health

       of all individuals involved.” Id. § 2(6). The trial court noted that no new

       evidence was submitted concerning any change in Mother’s physical or mental

       health status, nor did the GAL note any concerns regarding the health of

       Father, his new wife, or his stepdaughters. Thus, the trial court did not clearly

       err in determining that there was no substantial change in this factor.


[39]   The penultimate factor for the trial court to consider was “evidence of a pattern

       of domestic or family violence by either parent.” Id. at § 2(7). The trial court

       noted that there was not even a suggestion of any violence by either party,

       whom the trial court referred to as “fine parents.” Tr. p. 21. Similarly, there was

       no evidence that Daughter had ever been cared for by a de facto custodian,

       which is the final statutory factor for the trial court to consider. Id. at § 2(8).


[40]   The trial court ultimately determined that the school system in Michigan where

       Mother lived and in Indiana where Father lived were both good options.

       However, the trial court concluded that the more balanced calendar at the

       Michigan school did not rise to the level of a substantial and continuing change


       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 26 of 28
       in any of the above-listed factors. Indeed, the trial court noted that “the fact that

       [Daughter] aged a year or [two] since the last [custody] order and has started

       school, and in fact is completing the 2nd grade as of the date of this order, was

       or should have been within the [parents’] contemplation at the time of the

       divorce and at the time of the last modification and agreed entry in this cause.”

       Appellant’s App. p. 21. We are unable to say that the trial court’s reasoning in

       this regard is clearly erroneous. The parties were well aware that Daughter

       would soon be attending school and came to a custody agreement that gave

       Father primary physical custody.


[41]   As noted by the trial court, the only real change in circumstances was Father’s

       remarriage and the subsequent deterioration in the parties’ previously

       exceptional communications. Indeed, the trial court chastised the parties for the

       breakdown in their co-operation and communication and encouraged them to

       restore their once laudable behavior. However, the fact that Father remarried

       and that the parties no longer communicated at the level they once did does not

       mean that the trial court clearly erred in denying Mother’s motion to modify

       custody.

[42]   In short, it was Mother’s burden to prove that there had been a substantial and

       continuing change in any of the above-enumerated factors and that a change in

       custody was in Daughter’s best interests. Certainly, the GAL’s reports would

       have supported such a decision by the trial court. However, it is not enough that

       the evidence might have supported another decision; it must instead positively



       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 27 of 28
       require the result sought by the appellant. D.C. v. J.A.C., 977 N.E.2d 951, 957

       (Ind. 2012). That is simply not the case here.


                                                Conclusion

[43]   Mother waived her right to a full evidentiary hearing when she failed to object

       to the trial court’s summary procedure and failed to submit any other evidence

       or request to submit testimonial evidence. The trial court’s decision was based

       on sufficient evidence, and the trial court did not err in denying Mother’s

       request to modify custody.

[44]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 42A01-1606-DR-1340 | May 30, 2017   Page 28 of 28
