      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                       FILED
      this Memorandum Decision shall not be                                   Nov 14 2017, 8:42 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                                 CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
      the defense of res judicata, collateral                                       and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Mark S. Lenyo                                           Frederick B. Ettl
      South Bend, Indiana                                     South Bend, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Jeffrey Alan Perry,                                     November 14, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              71A03-1703-DR-704
              v.                                              Appeal from the St. Joseph
                                                              Superior Court
      Julieann Perry,                                         The Honorable David C.
      Appellee-Plaintiff.                                     Chapleau, Judge
                                                              Trial Court Cause No.
                                                              71D06-0611-DR-686



      Vaidik, Chief Judge.



                                          Case Summary
[1]   Jeffrey Alan Perry (“Father”) appeals the trial court’s order modifying custody

      of his daughter, granting Julieann Perry nka Heater (“Mother”) primary


      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017          Page 1 of 15
      physical custody. Before the hearing, Father sought two continuances, and

      while the first request was granted, the court denied his second request. After

      the hearing, the court ordered Father’s parenting time to be reduced to every

      other weekend, starting Saturday morning and ending Sunday evening. Father

      was also permitted a visit every Wednesday afternoon after school. The court

      also awarded Mother roughly $4800 in attorney’s fees.


[2]   Father argues that the trial court abused its discretion when it: (1) denied his

      second request for a continuance, (2) modified physical custody, and (3)

      granted Mother’s request for attorney’s fees. We affirm on the first two issues

      but reverse the award of attorney’s fees because the court failed to inquire about

      the parents’ current financial resources.



                            Facts and Procedural History
[3]   Mother and Father divorced in November 2008. They shared joint legal

      custody of their daughter, E.P., who was born in November 2004, and each

      exercised equal parenting time with E.P. In 2014, E.P. was touched

      inappropriately while at an after-school program. Mother began taking E.P. to

      a therapist, Kathy James. E.P.’s therapy sessions, while initially focused on the

      touching incident, always had a theme of what is and is not safe for E.P. Over

      the course of these sessions, E.P. disclosed incidents of physical and emotional

      abuse while in Father’s custody and indicated that she was afraid of Father.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 2 of 15
[4]   Based on these disclosures, James felt that E.P. was “not safe” in Father’s care

      and reported her concerns to Mother. Tr. Vol. II p. 12. In January 2016,

      Mother petitioned the trial court for an emergency modification of custody.

      After a brief hearing, the court denied Mother’s petition. The court, however,

      appointed Andrea Halpin as the guardian ad litem (GAL) and ordered Mother,

      Father, and E.P. to submit to a psychological custody evaluation by Dr. Tony

      Berardi. Dr. Berardi notified the court, Mother, and Father that he had worked

      previously with Mother during a custody dispute for Mother’s current husband.

      Father sought to have a new therapist assigned to the case. A hearing was held

      on the motion, and the court ultimately denied his request.


[5]   As part of Dr. Berardi’s evaluation, he interviewed E.P. by herself. Dr. Berardi

      submitted his summary of this interview “in camera,” and the trial court

      “seal[ed] it for appellate review only.” Id. at 103. After Dr. Berardi and the

      GAL had conducted their evaluations, they recommended that Mother be given

      sole legal and primary physical custody of E.P. Mother then petitioned the

      court to modify custody in accordance with these recommendations. An

      evidentiary hearing on Mother’s requests was set for January 6, 2017.

[6]   In November 2016, a month after Mother filed her petition, Father changed

      attorneys. On December 30, Father’s new attorney requested a continuance,

      arguing that he had represented Father for approximately six weeks and needed

      more time to review Dr. Berardi’s file on the case, which included 200 pages,

      some of which were handwritten notes. The trial court granted the motion,

      moving the hearing from a Friday to a Monday. The day of the hearing,

      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 3 of 15
      Father’s attorney renewed his request for a continuance, arguing that he had

      not been able to meet with Dr. Berardi except for a ten-minute period right

      before the hearing commenced. When questioned about his efforts to contact

      Dr. Berardi after the court granted the continuance, Father’s attorney stated

      that “we’ve had a four-day week” and that he had not placed a call to Dr.

      Berardi’s office to talk about his case notes. Id. at 90. The court denied the

      request for an additional continuance.

[7]   During the hearing, the GAL and Dr. Berardi both testified that Father had

      “vulnerabilities” in his parenting style that needed to be addressed for E.P.’s

      well-being. Id. at 110-112, 190. Those vulnerabilities included “reactive anger”

      that occasionally “spill[ed] over into violence,” denial of his actions and how

      they impacted E.P., self-centeredness, and “lack of insight and appreciation for

      how people have different views and different feelings.” Id. at 190. Father’s

      violent acts included kicking E.P., throwing things at her head, kicking a wall

      so hard that framed pictures fell to the ground and broke, and placing his hand

      under E.P.’s chin and lifting her up so that she was standing on her tip toes.

      Because of these vulnerabilities, Dr. Berardi expressed concerns about Father’s

      parenting and the emotional toll it was having on E.P. Dr. Berardi concluded

      that it would be in E.P’s best interests for Mother to be granted sole legal

      custody and primary physical custody, with Father receiving parenting time

      consistent with the Indiana Parenting Time Guidelines (“Guidelines”).


[8]   Concerns were also raised regarding Father’s willingness to help E.P. with her

      homework. Specifically, there was an instance where “Father punished [E.P.]

      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 4 of 15
       and wouldn’t let her do her homework.” Id. at 112. “Father had had [E.P.]

       clean her room instead of do her homework, and he told the teacher that [E.P.]

       had responsibilities, and if she couldn’t do them, that there would be

       punishment.” Id. When asked directly what his policy was regarding

       homework, Father stated, “The policy is do it yourself, pretty much.” Tr. Vol.

       III p. 27. Mother had a “more interactive” process to help E.P. with her

       homework. Id.


[9]    Father has also struggled with getting E.P. to school on time. When E.P. was

       in fifth grade she had approximately seventeen tardies, all on days when she

       was in Father’s care. E.P.’s school sent home a note stating that “if she missed

       anymore, she was going to have to have doctors’ notes for being late[.]” Tr.

       Vol. II p. 113. At the time of the hearing in January 2017, E.P. was in sixth

       grade and had accumulated three tardies, all during Father’s parenting time.


[10]   Mother also requested that the trial court award her attorney’s fees and order

       Father to share the cost of the custody evaluation Dr. Berardi conducted. Her

       attorney was sworn in and gave a brief statement to the court regarding his legal

       expertise—custody proceedings, divorces, paternity actions, and visitation—

       and hourly rate—$225. As of December 30, 2016, Mother’s attorney fees

       totaled $9485.13.


[11]   The trial court issued an eleven-page order that examined every statutory factor

       for the modification of a custody order. The court found that there was a

       substantial change in one or more of the statutory factors and that Dr. Berardi


       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 5 of 15
       recommended that “parenting time for [F]ather be consistent with the

       Guidelines, including alternate weekends.” Appellant’s App. Vol. II p. 74. The

       trial court granted Mother’s petition to modify custody, awarding her sole legal

       and primary physical custody of E.P. Father’s parenting time was reduced to

       every other weekend, starting on Saturdays at 9:30 a.m. and ending on Sundays

       at 6:00 p.m. Father was also given “Wednesday evening care” of E.P. from

       after school until 7:00 p.m. Id. at 75. The court denied Mother’s request that

       Father contribute to the cost of the custody evaluation but granted her request

       for attorney’s fees. Father was ordered to pay $4742, roughly half of Mother’s

       fees.


[12]   Father filed a motion to correct errors, arguing that the court improperly

       reduced his parenting time to less than the Guidelines’ recommendation and

       that it improperly awarded Mother attorney’s fees. After holding a hearing on

       the motion, the court stated that it was willing to “amend” Father’s parenting

       time once it received a report from Father’s counselor that “he’s gotten over

       some of these anger issues[.]” Tr. Vol. III p. 83. The court denied Father’s

       request to reverse its award of attorney’s fees.

[13]   Father appeals.



                                 Discussion and Decision
[14]   Father raises three arguments on appeal. He contends that the trial court erred

       when it: (1) denied his second motion for a continuance; (2) granted Mother


       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 6 of 15
       primary physical custody of E.P.;1 and (3) ordered him to pay a portion of

       Mother’s attorney’s fees.


[15]   The issues Father raises are all decisions that rest within the sound discretion of

       the trial court, and we will reverse only upon a showing that the trial court has

       abused its discretion. See F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App.

       2012) (“The decision to grant or deny a motion for a continuance is within the

       sound discretion of the trial court.”); Fields v. Fields, 749 N.E.2d 100, 107-08

       (Ind. Ct. App. 2001) (“The modification of custody lies within the sound

       discretion of the trial court.”), trans. denied; In re Marriage of Bartley, 712 N.E.2d

       537, 547 (Ind. Ct. App. 1999) (“In awarding attorney’s fees, the court has broad

       discretion.”). An abuse of discretion occurs “when the decision is clearly

       against the logic and effect of the facts and circumstances that were before the

       trial court, including any reasonable inferences to be drawn therefrom.” Mertz

       v. Mertz, 971 N.E.2d 189, 193 (Ind. Ct. App. 2012), trans. denied.


                                       I. Motion for Continuance
[16]   Father’s first argument is that the trial court abused its discretion when it denied

       his second motion for a continuance. Indiana Trial Rule 53.5 states in part that

       “trial may be postponed or continued in the discretion of the court, and [a

       continuance] shall be allowed upon a showing of good cause established by

       affidavit or other evidence.” “No abuse of discretion will be found where the




       1
           Father does not appeal the trial court’s modification of legal custody.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 7 of 15
       moving party has not shown that he was prejudiced by the denial of his

       continuance motion.” In re J.E., 45 N.E.3d 1243, 1246 (Ind. Ct. App. 2015),

       trans. denied.


[17]   After the evidentiary hearing was originally set for January 6, 2017, Father

       obtained new counsel, who filed his appearance in November 2016. Just over a

       month later, on December 29, Dr. Berardi provided both parents with a 200-

       page file that included his handwritten notes on this case. The following day

       Father’s attorney made his first motion for a continuance so that he could meet

       with Dr. Berardi to discuss what the doctor’s “illegible” notes said. Father’s

       attorney sought a two-week continuance. The trial court granted the request in

       part, moving the hearing from a Friday to the following Monday. At the start

       of the rescheduled hearing, Father’s attorney again sought a continuance so that

       he could meet with Dr. Berardi. The trial court questioned both Mother’s and

       Father’s attorneys about their ability to review the 200-page file. Mother’s

       attorney stated, “I’ve gone over them, and I’ve read them to my satisfaction.”

       Tr. Vol. II p. 88. The trial court then specifically asked Father’s attorney about

       his attempts to contact Dr. Berardi:

               Court:           Have you tried to call him and talk to him between
                                last Friday and today?


               Attorney:        Last Friday and today, so you’re saying - -


               Court:           Any time this morning?



       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 8 of 15
               Attorney:        No, I have not called Dr. Berardi any time this
                                morning.


                                                       ****


               Court:           If I was representing a client, I would be on the
                                phone to his office as soon as I got the illegible
                                records and try to have a meeting with him. Did
                                you make any effort to do that?


               Attorney:        Well, your Honor, Dr. Berardi was out of town
                                when we initially got those notes and then we’ve
                                had a four-day week, and - -


               Court:           Did you place a phone call to his office saying I
                                need to talk to you about your notes?


               Attorney:        No, your Honor, I did not.


       Id. at 89, 90. The trial court denied the second motion for a continuance.


[18]   Father contends that the request for a two-week continuance “was not

       unreasonable” because his attorney had been on the case for a short period of

       time. Appellant’s Br. p. 23. But, as Father acknowledges, “[t]he unexpected

       and untimely withdrawal of counsel does not necessarily entitle a party to a

       continuance.” Hess v. Hess, 679 N.E.2d 153, 154 (Ind. Ct. App. 1997). Father

       still has to show how he was prejudiced by the denial of the continuance, either

       through an affidavit or other evidence. He has not met that burden. The

       motion to continue was premised on the fact that Father’s attorney claimed that

       he could not read Dr. Berardi’s handwritten notes from a file that he received
       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 9 of 15
       well over a month after appearing on the case. Both Mother’s and Father’s

       attorneys received the 200-page file on the same day, and Mother’s attorney

       was able to read through it in time for the hearing ten days later. Additionally,

       Father’s attorney failed to contact Dr. Berardi’s office to set up an appointment

       to discuss the doctor’s “illegible” notes. Any prejudice that befell Father from

       the denial of his motion was of his attorney’s own doing. The trial court did

       not abuse its discretion when it denied Father’s second request for a

       continuance.


                                   II. Custody Modification
[19]   Father also argues that the court abused its discretion when it granted Mother’s

       motion to modify physical custody. The court may not modify an existing

       custody order unless the modification is in the best interests of the child and

       there has been a substantial change in one or more statutory factors. Ind. Code

       § 31-17-2-21. Indiana Code section 31-17-2-8 lists the statutory factors for a

       modification of physical custody: the age and sex of the child; the wishes of the

       child’s parents; the wishes of the child (with more consideration given to a child

       fourteen-years-old or older); the child’s interactions and relationships with any

       person who may significantly affect her best interest; the child’s adjustment to

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

       persons involved in the case; evidence of a pattern of domestic or family

       violence by either parent and evidence that a de facto custodian has cared for

       the child; and a designation of power of attorney of the child’s parent or a

       person found to be the child’s de facto custodian.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 10 of 15
[20]   In its order, the court entered detailed findings on several of these statutory

       factors. In part, the court found: E.P. was more comfortable discussing private

       concerns with Mother; both Mother and Father love E.P. and wish to spend as

       much time as possible with her; Mother was more willing to assist E.P. with

       homework than Father; Father and E.P. had an emotionally strained

       relationship; all psychological testing favored Mother over Father regarding

       their strengths and weaknesses, competency and supportiveness, and other

       admirable character traits; Father engaged in inappropriate discipline that is

       harsh, impulsive, and hurtful to E.P.’s sense of security and well-being; Mother

       did not use inappropriate discipline; Father had refused to do anything about

       building a collaborative, co-parenting relationship with Mother; E.P. and her

       stepfather had an appropriate, respectful relationship; and Father had a

       tendency to blame others for his negative reactions and was prone to react in

       anger when criticized. Appellant’s App. Vol. II pp. 69-75. The court concluded

       that a substantial change in one or more of the statutory factors had occurred

       and that it was in E.P.’s best interests to modify custody. The court granted

       Mother primary physical custody of E.P.


[21]   Father contends that these findings are not supported by the evidence. We

       disagree. The court’s findings are based on the testimony heard during the

       hearing. Specifically, Father, as a form of punishment, made E.P. clean his

       house instead of completing her homework. Father, himself, stated that he

       does not believe it is his job to help E.P. with her homework and that the policy

       in his house is “do it yourself . . . .” Tr. Vol. III p. 27. Father also repeatedly


       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 11 of 15
       failed to get E.P. to school on time. During Father’s parenting time, E.P.

       accumulated seventeen tardies in fifth grade. At the time of the hearing in

       January 2017, E.P. was in sixth grade and had accumulated three tardies, all of

       which occurred during Father’s parenting time.


[22]   Furthermore, the GAL and Dr. Berardi stated that Father had “vulnerabilities”

       that have negatively affected E.P. His vulnerabilities include “reactive anger”

       that occasionally “spill[ed] over into violence” and denial of his actions and

       how they impacted E.P. Tr. Vol. II p. 190. The GAL and Dr. Berardi also

       reported multiple instances of when Father had become violent either in front

       of or with E.P.— kicking a wall so hard that framed pictures fell to the ground

       and broke, kicking E.P., throwing things at her head, and placing his hand

       under E.P.’s chin and lifting her up so that she was standing on her tip toes.

       There is ample evidence to support the court’s conclusion, so it was not an

       abuse of discretion to modify physical custody. 2




       2
         Father also raises arguments regarding the credibility of the GAL’s and Dr. Berardi’s testimony. First,
       Father contends that the GAL’s testimony was “stale” because, at the time of trial, she had not seen E.P. in
       eight months. Appellant’s Br. pp. 18, 25. Next, he claims that the GAL “abrogated her responsibility” to
       make recommendations in E.P.’s best interests and merely “adopt[ed] Dr. Berardi’s recommendations
       without fulfilling her responsibilities as GAL.” Id. at 25. Father’s argument asks us to reweigh the evidence
       and determine witness credibility, which we will not do. Pawlik v. Pawlik, 823 N.E.2d 328, 330 (Ind. Ct. App.
       2005), trans. denied.
       Father also contends that Dr. Berardi was not able to conduct an unbiased, independent custody evaluation
       because of his involvement with Mother’s husband’s custody evaluation. But Dr. Berardi disclosed this
       potential conflict to the court and a hearing was held. The court concluded that Dr. Berardi could serve as
       the expert in this case. Father did not seek an interlocutory appeal of the court’s decision, nor did he raise it
       as a separate issue in this appeal. Even if we wanted to address Father’s concerns, Father failed to provide us
       with a transcript of that hearing. We would have no meaningful way to review the trial court’s decision, and,
       furthermore, it is the trial court that weighs evidence and determines witness credibility, not this Court. Id.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017            Page 12 of 15
[23]   Additionally, Father points out that the new parenting-time schedule is “less

       than recommended.” Appellant’s Br. p. 27. He does not explain what he

       means by this, but we assume that Father means to draw our attention to

       Section II of the Guidelines. Section II states that “regular parenting time” for

       the non-custodial parent shall be on alternating weekends “from Friday at 6:00

       p.m. until Sunday at 6:00 p.m.” and one evening per week “for a period up to

       four hours.” Ind. Parenting Time G. II(D)(1). We presume that the Guidelines

       are applicable in all cases. Id. at Preamble. “Deviations from these Guidelines

       by either the parties or the court that result in parenting time less than the

       minimum time set forth [in Section II] must be accompanied by a written

       explanation indicating why the deviation is necessary or appropriate in the

       case.” Id.


[24]   In its order, the court noted that Dr. Berardi and the GAL recommended that

       Father be granted parenting time consistent with the Guidelines. The court

       then ordered Father’s parenting time to be limited to every other weekend,

       beginning at 9:30 a.m. on Saturdays and ending at 6:00 p.m. on Sundays.

       Father was also granted a midweek visit on Wednesdays starting at the end of

       school until 7:00 p.m. The court ordered Father to have less parenting time

       than recommended in the Guidelines—starting on Saturday morning rather

       than on Friday night. At the hearing on Father’s motion to correct errors, the

       court explained its rationale for the deviation: “Show me that he’s gotten over

       some of these anger issues that he’s dealt with in counseling, and Dad may have

       two nights every other weekend.” Tr. Vol. III p. 83. The written order stated,


       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 13 of 15
       “The issue of Friday and Saturday overnight parenting time for Father on

       alternate weekends shall be considered upon a report from Father’s counselor.”

       Appellant’s App. Vol. II p. 60. Father was provided with a written explanation

       for why the court deviated from the Guidelines’ recommended parenting-time

       schedule. As already discussed, there was sufficient evidence to support the

       change in physical custody; that evidence also supported a reduction in Father’s

       parenting time to an amount less than what the Guidelines recommend.


                                        III. Attorney’s Fees
[25]   Father’s final argument is that the trial court erred when it ordered him to pay

       $4742 of Mother’s attorney’s fees. The trial court may order a party to pay “a

       reasonable amount” for the cost of the other party maintaining or defending a

       custody-modification proceeding or “any action filed to enforce or modify an

       order granting or denying parenting time rights[.]” Ind. Code §§ 31-17-7-1, 31-

       17-4-3. In the context of a parenting-time action, when the trial court considers

       making an award of attorney’s fees, it “must consider the [financial] resources

       of the parties, their economic condition, the ability of the parties to engage in

       gainful employment and to earn adequate income, and such factors that bear on

       the reasonableness of the award.” In re B.J.N., 19 N.E.3d 765, 771 (Ind. Ct.

       App. 2014).


[26]   There is nothing in the record as to either parent’s current financial resources.

       The trial court gave Mother the opportunity to present her case for attorney’s

       fees. Accordingly, her attorney testified about his legal expertise in family law


       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017   Page 14 of 15
       and his hourly rate. After the attorney’s testimony, the court asked, “Does that

       conclude your case?” Tr. Vol. III p. 77. Without introducing any evidence of

       Father’s or Mother’s financial resources, the attorney replied, “It does.” Id. On

       appeal, Mother contends that evidence of the parents’ finances was on file with

       the court via a 2008 child-support order. She contends that the child-support

       order constituted “sufficient evidence of the income and concomitant ability of

       each party to contribute to attorney’s fees.” Appellee’s Br. p. 21. This child-

       support order, however, was issued approximately nine years before the

       modification hearing. Furthermore, this child-support order shows that Father

       made $390 per week, while Mother made $550 per week and was responsible

       for 58.51% of E.P.’s expenses. Appellant’s App. Vol. II p. 185. Because no

       evidence was presented on the parents’ current financial resources, we reverse

       the award of attorney’s fees.3


[27]   Affirmed in part and reversed in part.


       Mathias, J., and Crone, J., concur.




       3
         Mother also argues that Father’s pre-litigation behavior constituted misconduct and that this misconduct
       was justification for the order of attorney’s fees. Even in cases of misconduct, the court must consider the
       parties’ financial resources. See Montgomery v. Montgomery, 59 N.E.3d 343 (Ind. Ct. App. 2016) (reversing an
       award of attorney’s fee based on father’s violation of court-ordered parenting time because trial court failed to
       consider parents’ financial resources), trans. denied; Francis v. Francis, 654 N.E.2d 4, 7 (Ind. Ct. App. 1995)
       (upholding award of attorney’s fees to father based on mother’s willful violations of a court order because
       mother “suffered from ‘no money pressure’”). The trial court failed to consider the financial resources of the
       parents; therefore, we do not address Mother’s misconduct argument.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-DR-704 | November 14, 2017            Page 15 of 15
