MEMORANDUM DECISION                                                                FILED
                                                                              May 19 2016, 9:04 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                   CLERK
this Memorandum Decision shall not be                                          Indiana Supreme Court
                                                                                  Court of Appeals
regarded as precedent or cited before any                                           and Tax Court

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
Oliver S. Younge                                        Pamela Buchanan
Younge Law Office                                       Buchanan & Bruggenschmidt, P.C.
Indianapolis, Indiana                                   Zionsville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Courtney Allen,                                         May 19, 2016
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        06A05-1509-DR-1399
        v.                                              Appeal from the Boone Superior
                                                        Court
Jeffrey Shelburne,                                      The Honorable J. Jeffrey Edens,
Appellee-Petitioner                                     Judge
                                                        Trial Court Cause No.
                                                        06D02-1106-DR-96



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A05-1509-DR-1399 | May 19, 2016              Page 1 of 7
                                               Case Summary
[1]   C.A. (“Mother”) appeals a custody modification order granting the physical

      and legal custody of K.S. to J.S. (“Father”). Mother presents the issue of

      whether the modification order is clearly erroneous.1 We affirm.



                                Facts and Procedural History
[2]   K.S. was born in 2010. After their 2012 divorce, Mother and Father shared the

      physical and legal custody of K.S. However, disputes arose with regard to

      K.S.’s medical care. Mother made allegations of child abuse against Father and

      Father filed petitions seeking to have Mother held in contempt of court. In

      2014, Mother filed a petition for custody modification. 2


[3]   The trial court appointed a Guardian Ad Litem (“GAL”) for K.S. and ordered

      Mother to complete a psychological test. The trial court conducted three

      hearings, on November 5, 2014, April 22, 2015, and May 6, 2015. During the

      second hearing, the trial court heard evidence on Father’s emergency custody

      petition. He was granted sole medical decision-making authority with regard to

      K.S. After the final hearing, the trial court modified the existing custody order

      such that Father has the sole physical and legal custody of K.S. and Mother has




      1
        Mother also purportedly raises an issue of whether the trial court complied with Indiana Code Section 31-
      17-4-1, which concerns restriction of a non-custodial parent’s parenting time. Mother was granted parenting
      time pursuant to the Indiana Parenting Time Guidelines, without restrictions. Thus, it is readily apparent
      that the statute is not implicated by the trial court’s order.
      2
          Father subsequently filed his own petition for custody modification.


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      parenting time pursuant to the Indiana Parenting Time Guidelines. The trial

      court’s decision stated that the most significant weight had been given to the

      reports of the GAL and the psychologist who conducted testing of Mother.


[4]   Mother filed a motion to correct error, which was denied without a hearing.

      Mother now appeals.



                                Discussion and Decision
                                       Standard of Review
[5]   We review the grant or denial of a motion to correct error for an abuse of

      discretion. Williamson v. Williamson, 825 N.E.2d 33, 44 (Ind. Ct. App. 2005).

      Also, a custody modification order is reviewed for an abuse of discretion, with a

      preference for granting deference to the trial judge in a family matter. Wilson v.

      Myers, 997 N.E.2d 338, 340 (Ind. 2013). When the trial court enters findings

      sua sponte, the findings control only as to the issues they cover, while a general

      judgment standard applies to any issue upon which the court has not found.

      Julie C. v. Andrew C., 924 N.E.2d 1249, 1255 (Ind. Ct. App. 2010). We will

      affirm the general judgment on any legal theory supported by the evidence,

      considering only the evidence and reasonable inferences drawn therefrom that

      support the findings. Id. at 1255-56. We neither reweigh the evidence nor

      judge the credibility of the witnesses. Id. at 1256.


[6]   The trial court may modify a child custody order when “(1) the modification is

      in the best interests of the child; and (2) there is a substantial change in one or

      Court of Appeals of Indiana | Memorandum Decision 06A05-1509-DR-1399 | May 19, 2016   Page 3 of 7
      more of the factors that the court may consider under section 8 and, if

      applicable, section 8.5 of this chapter.” Ind. Code § 31-17-2-21(a). The trial

      court is required to consider the factors of section 8, which include: the child’s

      age and sex; the wishes of the parent(s); the child’s wishes; the relationship the

      child has with his or her parent(s), sibling(s), and others; the child’s adjustment

      to home, school, and community; the mental and physical health of all

      involved; any evidence of domestic or family violence; and any evidence that

      the child has been cared for by a de facto custodian. I.C. § 31-17-2-8(1)-(8).


                                                 Analysis
[7]   The trial court entered extensive findings articulating its reasons for the custody

      modification decision. In relevant part, the court found that both parties were

      in agreement that the joint custody arrangement should be modified; the

      parents had refused to communicate regarding K.S.’s health care needs; K.S.

      could suffer harm in the future as a result of such dysfunctional

      communication; one parent needed to be responsible for K.S.’s care; Father was

      better suited to do so; Mother had shown a pattern of being disconnected and

      perhaps delusional about K.S.’s physical health; Mother overstated the severity

      of K.S.’s physical symptoms and believed K.S. to be a special needs child;

      despite being held in contempt of court, Mother had continued to withhold

      pertinent medical information from Father; Mother had not enrolled in a

      parental advocacy program although she had agreed to do so; Father’s home

      provided a safer environment for K.S.; and Mother had not followed through

      with therapy recommendations.

      Court of Appeals of Indiana | Memorandum Decision 06A05-1509-DR-1399 | May 19, 2016   Page 4 of 7
[8]    Mother’s challenge to the decision is two-fold. She argues that the trial court

       ignored favorable evidence of her parenting skills and failed to address the

       majority of the factors of Indiana Code Section 31-17-2-8. Mother describes

       herself as “proactive in facilitating the child’s progress and health.” Appellant’s

       Br. at 25-26. Indeed, there was testimony that Mother had sought appropriate

       medical care for K.S. and that he has benefitted from physical therapy and

       behavioral therapy.


[9]    However, the record is replete with evidence that the parents have not

       historically communicated well in implementing medical advice. Mother has

       been found in contempt of court for refusal to include Father in medical

       decision-making. Also, she was described as being uncooperative with court-

       appointed professionals. A recent episode concerning duplication of a

       prescription was perceived by the trial court to be indicative of future possible

       harm to K.S. After the appointment of successive GALs, multiple contempt of

       court citations, a psychological evaluation, many DCS and police investigations

       without substantiation of abuse, and an emergency hearing, the trial court

       determined that K.S.’s best interests would be served by one parent’s

       designation as the primary decision-maker and custodian. The trial court

       concluded that Father was the parent better suited to fulfill that role.


[10]   Mother’s claim that the trial court wrongly emphasized the opinion of a non-

       physician psychologist while ignoring testimony from K.S.’s therapist as to

       Mother’s excellent parental participation is an invitation to reweigh the

       evidence. We decline to do so. An appellate court may not substitute its own

       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-DR-1399 | May 19, 2016   Page 5 of 7
       judgment for that of the trial court if evidence or legitimate inferences support

       the decision. Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011). In short, there is

       evidence that both parents are caring and attentive to K.S.’s needs. The

       testimony of the expert and court-appointed witnesses is not without conflict.

       In light of the trial court’s unique position to personally hear and adjudge the

       credibility of each witness, “we continue to give substantial deference to the

       trial court’s determination of family law matters.” In re Visitation of L-A.D.W.,

       38 N.E.3d 993, 998 (Ind. 2015).


[11]   As for Mother’s insistence that the trial court erred in failing to “examine or

       address” each of the designated statutory factors, we are unpersuaded.

       Appellant’s Br. at 15. Although the trial court is to consider the relevant

       statutory factors, there is no corresponding requirement that the trial court

       articulate a specific finding with regard to each. The “crucial supporting

       findings” upon which a custody modification order will be upheld consist of a

       finding that there has been a substantial change in at least one of the statutory

       factors, and that modification is in the child’s best interests. Best, 941 N.E.2d at

       502-03.3 Such findings were made in this case, supported by the evidence and

       reasonable inferences.



                                                Conclusion


       3
        We observe that Mother did not make a timely request for findings and conclusions pursuant to Indiana
       Trial Rule 52.

       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-DR-1399 | May 19, 2016            Page 6 of 7
[12]   Mother has not demonstrated that the trial court abused its discretion.


[13]   Affirmed.


       Bradford, J., and Altice, J., concur.




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