MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 31 2020, 9:00 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




APPELLANT PRO SE
J.L.F.-D.
Philadelphia, Pennsylvania



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.L.F.-D.,                                               January 31, 2020
Appellant,                                               Court of Appeals Case No.
                                                         19A-DR-1381
        v.                                               Appeal from the Wayne Circuit
                                                         Court
C.N.D.,                                                  The Honorable David Kolger,
Appellee.                                                Judge
                                                         Trial Court Cause No.
                                                         89C01-1606-DR-160



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020               Page 1 of 10
                                            Case Summary
[1]   J.L.F.-D. (“Father”), proceeding pro se, appeals the trial court order which

      modified child custody and suspended his parenting time, among other things.1

      As Father’s appeal brief is not in compliance with Indiana Appellate Rule 46, it

      is not clear what issue or issues he raises on appeal, and his appeal is waived.

      Waiver notwithstanding and assuming Father raises the issue of whether the

      trial court erred when it modified child custody and suspended parenting time,

      we affirm.



                             Facts and Procedural History
[2]   The marriage of Father and C.N.D. (“Mother”), parents of J.C.D. (“Child”),

      who was born on March 25, 2008, was dissolved in an order dated July 11,

      2018. The dissolution order granted the parents joint legal custody and granted

      Mother physical custody of Child. Mother and Child lived in Richmond,

      Indiana, and Father lived in Philadelphia, Pennsylvania. Child had telephone

      contact with Father and parenting time with Father in Philadelphia.


[3]   At the conclusion of Father’s parenting time with Child during the Christmas

      holiday in 2018, Father refused to return Child to Mother due to Father’s




      1
        The order also: (1) found Father in contempt of the dissolution decree and ordered that he “may purge
      himself of such contempt” by paying $1,775 in Mother’s attorney fees; (2) denied Mother’s petition for
      appointment of a parenting time coordinator; and (3) granted the Mediator’s petition to enforce payment of
      mediation costs and ordered Father to pay such costs. App. at 53-55.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020                Page 2 of 10
      allegations that Child was abused. On five occasions Father had registered

      complaints with the Wayne County, Indiana Department of Child Services and

      a child services agency in Philadelphia in which he alleged Mother neglected

      and/or abused Child. All of those allegations were found by the respective

      child services agencies to be unsubstantiated.


[4]   The trial court held a status conference on January 3, 2019, at which it set an

      additional status conference for January 7 and ordered Father to appear at that

      conference with Child. On January 7, Mother filed a petition to hold Father in

      contempt of the dissolution decree and a motion to modify custody by granting

      her sole legal custody and suspending Father’s parenting time. On the same

      date, Father filed a petition to modify custody and child support. Father

      appeared with Child at the January 7 status conference and turned Child over

      to Mother.


[5]   On May 21, 2019, the trial court conducted a hearing on all pending motions.

      Father failed to personally appear and was not represented by counsel. In an

      order dated May 23, 2019, the trial court denied Father’s petition to modify

      custody and granted Mother’s petition for contempt and to modify custody and

      parenting time. Specifically, the trial court found Father in contempt of the

      dissolution decree for registering false complaints with child service agencies

      and refusing to return Child to Mother’s custody after parenting time.

      Regarding modification of joint legal custody, the trial court found, in relevant

      part, that:



      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 3 of 10
              -        Father had “repeatedly demonstrated his unwillingness” to
                       communicate and cooperate with Mother to advance
                       Child’s welfare;


              -        Father’s “numerous false allegations to the child service
                       agencies in Indiana and Pennsylvania … were
                       undoubtedly aimed by Father at destroying Mother’s
                       credibility,” and that “Father showed no regard for the
                       stress and tension caused to their child by the multiple,
                       intrusive interviews necessitated by his false claims[;]”


              -        “Father’s refusal to return the child to Mother’s custody
                       following the Christmas break not only demonstrated his
                       unwillingness to co-parent with Mother, but also caused
                       further stress on their child[;]”


              -        “Father’s absolute refusal to engage in the mediation
                       process, as well as his repeated failures to meet and
                       cooperate with the court appointed [GAL], was further
                       evidence of his unwillingness to compromise with
                       Mother[;]”


              -        “Father is unwilling to co-parent with Mother in any
                       meaningful sense,” making joint legal custody “no longer
                       a viable option.”


      App. at 53-54. The trial court concluded that the custody order was modified to

      grant Mother “sole legal custody” of Child. Id. at 54.


[6]   Regarding modification of parenting time, the trial court noted that it had

      “grave concerns about the safety and well being of this child while in Father’s

      care and custody” due to his “defiant decision to refuse to return” Child to


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 4 of 10
      Mother in January of 2019. Id. The court also cited testimony of the GAL

      “regarding how traumatic that event was for [Child] and how she felt she might

      not get to see her Mother again.” Id. The court noted its further concern about

      Father’s “‘clandestine’ methods of accessing [Child] through video game

      interaction … and his use of relatives’ … social media accounts and/or

      electronic communication devices.” Id. The court concluded


              that any further access by Father to [Child] could negatively
              impact her emotional development and/or her physical health.
              Accordingly, the Court finds that Father’s parenting access with
              [Child] should be suspended until further order of this court.


              IT IS THEREFORE ORDERED that Father’s parenting time
              access with the parties[’] minor child … is hereby SUSPENDED
              until further order of this Court.


      Id. Father now appeals.



                                 Discussion and Decision
[7]   We begin by noting that, although Father appeals pro se, he is held to the same

      standard as trained counsel and is required to follow procedural rules.

      Meisberger v. Bishop, 15 N.E.3d 653, 656 (Ind. Ct. App. 2014). Therefore, we do

      not “‘indulge in any benevolent presumptions on [his] behalf, or waive any rule

      for the orderly and proper conduct of [his] appeal.’” Id. (quoting Ankeny v.

      Governor of State of Ind., 916 N.E.2d 678, 689 (Ind. Ct. App. 2009), trans. denied).




      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 5 of 10
[8]    We also note that Mother has not filed an appellee’s brief. Under such

       circumstances, “we do not undertake the burden of developing appellee’s

       arguments, and we apply a less stringent standard of review, that is, we may

       reverse if the appellant establishes prima facie error.” Id. Prima facie error

       means error “at first sight, on first appearance, or on the face of it.” Trinity

       Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006).


                                                    Waiver
[9]    Indiana Appellate Rule 46 contains the requirements for appellate briefs. The

       purpose of the rule “is to aid and expedite review and to relieve the appellate

       court of the burden of searching the record and briefing the case.” Tipton v.

       Estate of Hofmann, 118 N.E.3d 771, 776 (Ind. Ct. App. 2019). When an

       appellant’s noncompliance with Rule 46 is “so substantial that it impedes our

       appellate consideration of the errors,” those alleged errors are waived. Id.


[10]   Here, as in Tipton, Father’s brief “fails to comply in virtually every respect with

       Indiana Appellate Rule 46.” Id. Rule 46(A)(1) requires a table of contents that

       lists “each section of the brief, including the headings and subheadings of each

       section and the page on which they begin.” Father’s purported “Table of

       Contents” only consists of the names and relationships of people in the

       subsequent thirty-page narrative, and the following three lines:


               Page 3-21 Summary and facts from 12/2016 to Present


               Page 22-30 Illegal Actions done to my daughter and I


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 6 of 10
               Page 30-32 Parenting Plan


       Appellant’s Br. at 2. Father’s brief does not contain a Table of Authorities,

       App. R. 46(A)(2), a Statement of Issues, App. R. 46(A)(4), a Statement of the

       Case, App. R. 46(A)(5), or a Summary of the Argument, App. R. 46(A)(7), all

       of which are required. Nor does his brief contain a sufficient Statement of

       Facts; under Appellate Rule 46(A)(6), that section must contain facts which are

       supported by references to the Record on Appeal or the Appendix. Father’s

       brief contains not one reference to the Record or Appendix.


[11]   Finally, to the extent Father’s brief contains an Argument section, it is

       completely deficient. Appellate Rule 46(A)(8) requires an Argument section

       that “contains the contentions of the appellant on the issues presented,

       supported by cogent reasoning.” Pages three to twenty-five and thirty through

       thirty-two of Father’s brief do not have any headings or subheadings and are

       each one long, multi-paged paragraph. Moreover, those parts of the brief

       contain nothing but Father’s unsupported statements of his version of the facts

       and argument without supporting authority or cogent reasoning. Father chose

       not to appear and give testimony at the hearing on his and Mother’s petitions to

       modify custody; he certainly may not give such testimony in an appeal brief.

       And the only authority Father references is contained in pages twenty-five

       through thirty and consists of nothing other than a purported recitation of the

       Indiana Parenting Time Guidelines, without citation or ascertainable section

       references. Father’s only statement regarding why those guidelines are relevant

       is the following sentence: “[Mother], [Mother’s] family and the Wayne County

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 7 of 10
       Court have ignored all of these laws and rights [Child] and I have.” Appellant’s

       Br. at 25. That is not the cogent reasoning required by the appellate rules.


[12]   Because Father’s brief is deficient in every way, his arguments are waived.


                                       Waiver Notwithstanding
[13]   Waiver notwithstanding,2 and assuming Father appeals the custody

       modification and parenting time suspension orders, Father has failed to show

       prima facie error. We review both orders for an abuse of discretion. Robertson

       v. Robertson, 60 N.E.3d 1085, 1090-91 (Ind. Ct. App. 2016) (custody

       modification); Meisberger, 15 N.E.3d at 656 (restriction of parenting time). The

       trial court also made findings and conclusions; therefore, we employ a two-

       tiered standard of review under which we first determine whether the record

       supports the findings and then whether the findings support the judgment. E.g.,

       Nelson v. Nelson, 10 N.E.3d 1283, 1285 (Ind. Ct. App. 2014) (quotation and

       citation omitted). Father does not challenge any specific finding; therefore, we

       only address whether the findings support the judgment.


[14]   A trial court may modify a child custody order when it finds that modification

       is in the child’s best interests and there has been a substantial change in one or

       more of the relevant statutory factors, such as the interaction of the child with

       the parents and the mental and physical health of all individuals involve. Ind.




       2
         If possible, we prefer to decide cases on their merits. Picket Fence Prop. Co. v. Davis, 109 N.E.3d 1021, 1030
       (Ind. Ct. App. 2018), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020                    Page 8 of 10
       Code § 31-17-2-21; I.C. § 31-17-2-8(1)-(8). Here, the trial court made the

       following findings in support of its modification of custody: there was a

       breakdown in communication and cooperation caused by Father; Father made

       numerous false allegations of Mother’s alleged abuse/neglect to child services;

       Child suffered emotional harm caused by the “multiple, intrusive interviews

       necessitated by [Father’s] false claims[;]” and Father refused to return Child to

       Mother’s custody following visitation, which the GAL testified was “traumatic”

       for Child. App. at 53-54. Those findings support the trial court’s modification

       order granting Mother sole legal custody of Child. See, e.g., A.W. v. Z.B. (In re

       Paternity of M.P.M.W.), 908 N.E.2d 1205, 1208-09 (Ind. Ct. App. 2009) (custody

       modification supported by findings that parent absconded with the child and

       made false accusations against other parent).


[15]   A trial court may restrict parenting time when it finds that such restriction

       would be in the child’s best interests and that “parenting time might endanger

       the child’s physical health or significantly impair the child’s emotional

       development.” I.C. § 31-17-4-2. Here, the trial court found that Child was

       harmed by: Father’s refusal to cooperate with the GAL; his “defiant decision”

       to refuse to return Child to Mother in January 2019 and the trauma caused to

       Child by that refusal; and his “clandestine” methods of accessing Child in

       subversion of court orders. App. at 54. Moreover, the court specifically found

       that “any further access by Father with [Child] could negatively impact her

       emotional development and/or her physical health.” Id. Those findings are




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 9 of 10
       sufficient to support the suspension of Father’s parenting time with Child. I.C.

       § 31-17-4-2.



                                               Conclusion
[16]   Father’s complete failure to comply with Indiana Appellate Rule 46 resulted in

       waiver of his arguments on appeal. Waiver notwithstanding, the trial court did

       not abuse its discretion when it modified child custody to sole legal custody

       with Mother and suspended Father’s parenting time. Father failed to establish

       prima facie error.


[17]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1381 | January 31, 2020   Page 10 of 10
