      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                          FILED
      regarded as precedent or cited before any                                 May 07 2018, 8:54 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                                  ATTORNEYS FOR APPELLEE
      Florence Anne Briggs                                    Amanda R. Blystone
      Briggs Law Office                                       Broyles Kight & Ricafort, P.C.
      Flora, Indiana                                          Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      T.A.S.,                                                 May 7, 2018
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              32A01-1709-DR-2193
              v.                                              Appeal from the Hendricks
                                                              Superior Court
      J.S.,                                                   The Honorable Karen M. Love,
      Appellee-Respondent                                     Judge
                                                              Trial Court Cause No.
                                                              32D03-1211-DR-753



      Crone, Judge.


                                             Case Summary
[1]   T.A.S. (“Father”) appeals a custody modification order awarding primary

      custody of his three children to their mother, J. S. (“Mother”). He raises


      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018                 Page 1 of 13
      several issues, which are essentially challenges to the admission of certain

      medical evidence and to the sufficiency of the evidence supporting the custody

      modification order. Mother cross-appeals, claiming that the trial court used

      inaccurate parenting time figures in calculating Father’s child support

      obligation. Finding that Father has waived his evidentiary challenge, that the

      evidence is sufficient to support the custody modification order, and that the

      trial court erred in calculating Father’s weekly child support obligation, we

      affirm the custody modification and reverse and remand for a recalculation of

      Father’s weekly child support obligation.


                                    Fact and Procedural History1
[2]   Mother and Father were married in June 1998 and had three children: C.S.,

      born in 2001; A.S., born in 2004; and M.S., born in 2006 (collectively “the

      Children”). C.S. takes medicine for asthma, and M.S. takes medicine for

      chronic acid reflux, from which she has suffered since she was a toddler.

      Mother and Father’s marriage was dissolved in April 2014. Per the agreed

      custody order, they shared joint legal and physical custody, with parenting time

      on alternating weeks and opposite Tuesdays. At the time of the dissolution,

      C.S. and M.S., ages twelve and seven respectively, both suffered “toileting

      issues,” which involved bedwetting and intermittent daytime accidents. Tr.

      Vol. 2 at 11. The toileting issues have persisted throughout these proceedings.



      1
        We note that Father’s primary and reply briefs violate Indiana Appellate Rule 46 in many respects. For
      example, the facts section contains argument, the enumerated issues are addressed out of order or not at all in
      the argument section, and the arguments are at times incoherent.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018                Page 2 of 13
      The dissolution decree required that the Children participate in counseling, that

      Mother and Father alternate taking the Children to their weekly counseling

      appointments, and that each parent follow the recommendations of the

      counselor. Parenting coordinator Ann Knotek was appointed to facilitate

      communication between Mother and Father. Other professionals appointed to

      work with the family include guardian ad litem Sally Steward (“GAL

      Steward”) and Dr. Pam Reed, the Children’s counselor.


[3]   In September 2015, Mother filed a petition requesting sole legal custody, a

      modification of physical custody, and a modification of child support

      commensurate with the change in physical custody. She alleged that Father’s

      inconsistency and lack of stability presented a risk to the Children’s physical

      and mental well-being. She cited inconsistent bedtimes at Father’s house that

      caused the Children to be overtired for school and other activities, Father’s

      inconsistency in administering C.S.’s and M.S.’s medications, his failure to

      cooperate with measures recommended by Dr. Reed to alleviate or minimize

      the number of toileting accidents, and his tardiness for and general attitude

      toward the Children’s counseling appointments.


[4]   The trial court conducted hearings on the modification petition, during which

      the GAL testified concerning her report and recommendations. GAL Steward

      conferred with both Dr. Reed and Knotek and recommended as follows: that

      Mother and Father maintain joint legal custody, with Mother having the tie-

      breaking vote in the event of an impasse concerning medical or counseling

      decisions; and that Mother be given primary physical custody, with Father

      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 3 of 13
      having parenting time every other Friday afternoon through Monday morning

      and every Tuesday after school until 8:00 p.m. (until C.S.’s and M.S.’s toileting

      issues are resolved) and overnight Tuesdays thereafter. Mother testified that

      she would agree to GAL Steward’s recommendations. In September 2017, the

      trial court issued an order with limited sua sponte findings that essentially

      adopted GAL Steward’s recommendations regarding custody. The court

      ordered Father to pay child support arrearages and calculated his current child

      support obligation at $53.00 per week.


[5]   Father appeals the custody modification order, claiming that certain evidence

      was improperly admitted and that Mother failed to establish that custody

      modification is in the Children’s best interests due to a substantial change in

      conditions. Mother cross-appeals the child support portion of the order,

      claiming that the trial court erred in giving Father a parenting time credit for

      181 to 183 days for purposes of calculating his weekly child support obligation.

      Additional facts will be provided as necessary.


                                     Discussion and Decision

       Section 1 – Father has waived any challenge to the admission
                           of medical evidence.
[6]   In the statement of issues section of his brief, Father questions whether the trial

      court erred in admitting certain medical evidence. However, he has failed to

      address that argument in the argument section of his brief. As such, he has




      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 4 of 13
      waived it for review. Zivot v. London, 981 N.E.2d 129, 137-38 (Ind. Ct. App.

      2012).


           Section 2 – The evidence is sufficient to support the trial
                       court’s order modifying custody.
[7]   Father raises numerous claims that amount to a challenge to the sufficiency of

      the evidence to support its custody modification order. Custody modification is

      a determination that rests within the trial court’s sound discretion. In re

      Marriage of Sutton, 16 N.E.3d 481, 484 (Ind. Ct. App. 2014). On review, we

      neither reweigh evidence nor reassess witness credibility. Id. Rather, we

      consider only the evidence and reasonable inferences favorable to the trial

      court’s judgment. Id. Where, as here, the trial court enters findings of fact and

      conclusions sua sponte, the specific findings control only with respect to the

      issues they cover. Id. at 484-85. The findings or judgment will be set aside only

      if they are clearly erroneous, meaning that there are no facts or inferences

      drawn therefrom to support them. Id. at 485. A general judgment standard

      applies to issues outside the trial court’s findings. Id.


[8]   Indiana Code Section 31-17-2-21(a) allows a trial court to modify a child

      custody order only if modification is in the best interests of the child and there is

      a substantial change in at least one of the factors listed in Indiana Code Section

      31-17-2-8. These factors include the following:


               (1) The age and sex of the child.


               (2) The wishes of the child’s parent or parents.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 5 of 13
                (3) The wishes of the child, with more consideration given to the
                child’s wishes if the child is at least fourteen (14) years of age.


                (4) The interaction and interrelationship of the child with:


                (A) the child’s parent or parents;


                (B) the child’s sibling; and


                (C) any other person who may significantly affect the child’s best
                interests.


                (5) The child’s adjustment to the child’s:


                (A) home;


                (B) school; and


                (C) community.


                (6) The mental and physical health of all individuals involved.


      (7) Evidence of a pattern of domestic or family violence by either parent.



      Ind. Code § 31-17-2-8.


[9]   Here, the trial court issued the following relevant sua sponte findings:2




      2
          We have replaced any reference to the Children’s names with initials.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 6 of 13
        1.2 The Court finds there is a substantial change in one or more
        of the factors which the Court may consider under I.C. 31-17-2-8.

        1.3 It is in the best interest of the parties’ minor children that
        custody be modified.

        1.4 It is in the best interest of the parties’ children that legal
        custody be modified and that Mother and Father shall have joint
        legal custody of the children, but Mother shall have the authority
        to “break the tie” concerning any medical or counseling decision.
        Accordingly, joint legal custody is awarded to Mother and
        Father.

        ….

        1.6 The Petition to Modify Child Custody is thus GRANTED.

        ….

        The children need counseling at least until C.S. and M.S. have
        resolved all of their toileting issues.
        Father shall have parenting times on Tuesdays (Scout night)
        which shall be from after school until 8:00 pm until such time as
        C.S. and M.S.’s toileting problems are resolved. After those
        issues are resolved, the Tuesdays shall be overnights until
        Wednesday mornings. Father shall also have parenting time
        every other weekend from Friday after school until Monday
        morning before school. However, Father shall STRICTLY
        ADHERE to an age appropriate bedtime for all three children on
        his Tuesday and Sunday overnights and shall follow[] specifically
        all recommendations regarding resolution of the toileting
        problems including stopping liquid intake at a certain time,
        waking the children to use the bathroom in the night, etc.
        The parent who has the children for overnight parenting time
        shall be responsible for insuring that all homework due the next
        day is completed in a timely manner well before bedtime.


Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 7 of 13
               ….

               The children, all three (3), shall continue in counseling with Dr.
               Pam Reed until further Order of this Court. Both parents shall
               participate as directed by Dr. Reed and shall be punctual in
               attendance at such appointments.

               ….

               The Agreement of Property Settlement and For Child Custody
               and Support filed 4-16-14 required the children to participate in
               counseling and required the parties to take the children for
               appointments and to implement the counselor’s
               recommendations. Despite this agreement, Father unilaterally
               decided to stop taking the children for counseling in August,
               2016. Father has failed to take the children for counseling
               appointments and continually arrived late for appointments.
               Father has failed to implement the counselor’s recommendations.


       Appellant’s App. Vol. 2 at 26-28.


[10]   Father asserts that the trial court abused its discretion by failing to consider the

       relevant statutory factors. He correctly observes that Indiana Code Section 31-

       17-2-21 requires the trial court to consider the factors listed in Section 8 when

       making a custody modification. The court indicated that it did consider the

       factors, specifically finding that there was a substantial change in one or more

       of them. Appellant’s App. Vol. 2 at 26. Father appears to argue that the trial

       court was required to issue a finding indicating the specific factor(s) upon which

       it relied. However, in making custody determinations, courts are not required

       to issue special findings at all unless requested by a party. Milcherska v.



       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 8 of 13
       Hoerstman, 56 N.E.3d 634, 640 (Ind. Ct. App. 2016). Neither parent requested

       special findings here.


[11]   The trial court’s sua sponte findings emphasize the Children’s need to continue

       counseling due to their significant physical and mental issues that must be

       addressed on a consistent basis. These findings enjoy support throughout the

       record. With respect to the Children’s physical needs, GAL Steward and Dr.

       Reed both reported that Father lacks consistency in administering medications

       and attending to the specific medical needs of each child. C.S. suffers from

       chronic asthma and requires consistent dosages of inhaled medication.

       However, the record shows that he did not consistently receive both his

       morning and evening doses when he stayed at Father’s house. M.S. has

       suffered from acid reflux for several years. A doctor diagnosed her with

       gastroesophageal reflux disease, a diagnosis with which Father disagreed. He

       scheduled an appointment with a specialist for a second opinion but neglected

       to tell Mother about the upcoming appointment until the night before, when it

       was too late for her to rearrange her work schedule. Mother asked him to

       reschedule the appointment so that she could ask questions and provide the

       specialist with her pertinent information. Father agreed to reschedule the

       appointment but admits that he never did so. When M.S. went to camp for a

       week and did not have her medicine with her, Father did not take measures to

       replace the medicine but instead told camp personnel to give her Pepto Bismol.

       Similarly, A.S. spent a week at camp without his antibiotic during a protracted

       ear infection because Father could not find the medicine at daycare and did not


       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 9 of 13
       get a refill or communicate with Mother so that she could get a refill. Father

       permitted A.S. to swim in his pool with earplugs during his ear infections.

       During one such ear infection, when A.S. returned from Father’s house,

       Mother could tell from the amount of antibiotic remaining in his returned

       prescription bottles that Father had not given him the medicine as prescribed.

       Tr. Vol. 2 at 72.3


[12]   Father also demonstrated a pattern of inconsistency in dealing with the

       Children’s mental and emotional issues. The record shows that he was

       generally about thirty to forty-five minutes late for the Children’s counseling

       sessions and that by August 2016, he had ceased taking them at all. The

       original custody decree mandated that he ensure the Children’s participation as

       well as his own and that he follow the counselor’s recommendations. Of most

       grave concern to GAL Steward were M.S.’s and C.S.’s toileting issues, which

       she characterized as behavioral and psychological rather than structural or

       physical. Father argues that because the toileting issues had been ongoing since

       before the divorce, they are not probative of a substantial change in

       circumstances. However, Father’s response to the toileting issues is highly

       probative. He disagreed with Dr. Reed’s methods for dealing with the toileting




       3
         Additionally, A.S. was bitten by one of the family dogs while at Father’s house, which necessitated a trip to
       the emergency room. Father and his girlfriend kept the dog, hired a trainer, and reported that A.S. had no
       further issues with any of their dogs. Because the dog bite occurred in 2014 and there have been no further
       reported incidents, we find it to be of minor significance in the grand scope of these proceedings. That said,
       the communication breakdown between Father and Mother during A.S.’s emergency room visit is one
       example of the ongoing communication issues that precipitated the appointment of parenting coordinator
       Knotek.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018               Page 10 of 13
       issues and simply refused to adhere to them, even though he was under a court

       order to do so. He also refused Knotek’s attempts to implement a parenting

       contract aimed at consistency in handling these issues. For example, he did not

       cut back on M.S.’s and C.S.’s evening fluid intake as instructed. Instead, the

       Children often ate late dinners at his house, during which he provided M.S. and

       C.S. with beverages later than the instructed times. Mother testified concerning

       a specific incident in which she had seen Father give M.S. a bottled water at

       one of C.S.’s nighttime football games. Id. at 80. The record also shows that

       Father was less consistent in waking up M.S. and C.S. to go to the bathroom in

       the middle of the night. As a result, they had more bedwetting incidents when

       staying at his house. Father punished them as he saw fit, i.e., taking away

       M.S.’s favorite shoes, and not according to the instructions from the

       professionals involved in their cases.


[13]   The Children’s toileting issues have impacted not only their physical and

       mental health but also their social well-being. GAL Steward, a former middle

       school teacher, testified concerning the major negative social impact of toileting

       issues for an adolescent or teenage child. Id. at 54. Dr. Reed noted that during

       one session with M.S., when M.S. had been staying at Father’s house, she

       noticed a foul smell indicating poor hygiene, urine, and serious foot odor.

       Mother reported that M.S. would sometimes stash her soiled underwear in her

       backpack to avoid punishment. This, of course, led to the social stigma

       attendant to a foul-smelling backpack.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 11 of 13
[14]   Simply put, the court ordered Mother and Father to adhere to the

       recommendations of the professionals involved in the Children’s case. Mother

       did so; Father did not. He now attempts to downplay his noncooperation by

       claiming that it does not amount to a substantial change of circumstances. In

       doing so, he asks us to credit his self-serving arguments and disregard the

       evidence offered not only by Mother but also by the professionals working with

       the Children. We must decline his invitation to reweigh evidence and reassess

       credibility. The evidence and inferences most favorable to the judgment are

       sufficient to support the trial court’s conclusion that custody modification is in

       the Children’s best interests due to a substantial change in circumstances

       affecting their physical and mental health. See Sutton, 16 N.E.3d at 485 (“[A]

       change in circumstances must be judged in the context of the whole

       environment, and the effect on the child is what renders a change substantial or

       inconsequential.”) (quoting Jarrell v. Jarrell, 5 N.E.3d 1186, 1193 (Ind. Ct. App.

       2014)). As such, we affirm the custody modification order.


          Section 3 – Mother has established prima facie error in the
         trial court’s calculation of Father’s child support obligation.
[15]   Mother raises a cross-appeal argument that the trial court used an inaccurate

       number of overnights in calculating Father’s child support obligation. In his

       reply brief, Father failed to address the issue in any way. Because the

       procedural posture of this cross-appeal is substantively equivalent to a case in

       which an appellee fails to provide us with a brief, we review the issue for prima

       facie error. In re Riddle, 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). Prima facie


       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 12 of 13
       error is error “at first sight, on first appearance, or on the face of it.” Billings v.

       Odle, 891 N.E.2d 106, 108 (Ind. Ct. App. 2008) (citation omitted). The prima

       facie error rule relieves us of the burden of controverting Mother’s arguments

       for reversal on this issue. Id.


[16]   Here, the trial court modified physical custody from equal parenting time of

       alternating weeks (181 to 183 nights per year per parent) to Mother having the

       Children for ten to eleven out of every fourteen nights, with holidays divided

       according to the Parenting Time Guidelines. Yet, the child support obligation

       worksheet attached to the order indicates that Father’s $53.00 weekly support

       obligation was calculated using a parenting time credit for 181 to 183

       overnights. Appellant’s App. Vol. 2 at 32. Mother correctly cites this as error,

       given the court’s modification of physical custody, and asks that Father’s child

       support obligation be recalculated using an accurate number of overnights. We

       agree and therefore reverse and remand for a recalculation of Father’s weekly

       child support obligation.


[17]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-DR-2193 | May 7, 2018   Page 13 of 13
