      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                Jun 26 2019, 8:55 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
      Jeffrey A. Flores
      Flores Law Office
      Madison, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Paternity of                         June 26, 2019
      Brogan Hensley,                                           Court of Appeals Case No.
                                                                18A-JP-2758
      Megan Orcutt,
                                                                Appeal from the
      Appellant-Respondent,                                     Dearborn Circuit Court
              v.                                                The Honorable
                                                                James D. Humphrey, Judge
                                                                The Honorable
      John Hensley,                                             Kimberly A. Schmaltz, Magistrate
      Appellee-Petitioner.                                      Trial Court Cause No.
                                                                15C01-1507-JP-55



      Kirsch, Judge.


[1]   Megan Orcutt (“Mother”) appeals the trial court’s order granting a petition filed

      by John Hensley (“Father”) to modify custody of the parties’ minor child,


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019                     Page 1 of 9
      Brogan Hensley (“Child”) raising the following restated issue for our review:

      whether the trial court abused its discretion when it granted Father’s petition to

      modify custody.


[2]   We vacate and remand with instructions.


                                  Facts and Procedural History
[3]   Mother and Father have one child together, Child, who was born on September

      13, 2012. Appellant’s App. Vol. 2 at 10. In an order issued on April 6, 2016,

      paternity was established and child support, parenting time, and child custody

      were also ordered. Id. at 22-25. Pursuant to this order, Mother was given

      primary legal and physical custody of Child. Id. at 22. Father was given

      parenting time on alternating weekends from Friday at 6:00 p.m. to Sunday at

      6:00 p.m., and every Wednesday from 4:00 p.m. to 7:30 p.m. Id. Due to

      conflict between the parties, the provisions of the Indiana Parenting Time

      Guidelines (“IPTG”) regarding the right of first refusal did not apply. Id. The

      parties were ordered to communicate only through a communication notebook,

      until Father completed an anger management course. Id. at 23-24. Parenting

      time exchanges were to take place at the Aurora police station. Id. at 23. At

      the time of the original custody order, Mother had a protective order against

      Father under cause number 15C01-1508-PO-108. Id. at 31. The trial court kept

      the protective order in place but modified it to be consistent with the terms of

      the custody order. Id. at 23.




      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019   Page 2 of 9
[4]   On April 7, 2017, Father filed a “Verified Emergency Petition to Modify

      Custody, Parenting Time and Child Support.” Id. at 5. After evidentiary

      hearings were held, the trial court issued an order on May 25, 2017, granting

      Father temporary custody of Child. Id. at 14. In the temporary custody order,

      the trial court found that circumstances had substantially changed, making the

      original custody order unreasonable and not in Child’s best interests because

      the Department of Child Services (“DCS”) had substantiated neglect against

      Mother and had entered an Informal Adjustment in cause number 15C01-1703-

      JC-029. Id. at 14-15.


[5]   The trial court found that Mother had been in many fights with her live-in

      boyfriend, Phillip Clark (“Clark”), while they were drunk and that the police

      had responded to the home. Id. at 15. Mother admitted that Clark had a drug

      problem, and on a follow-up visit, DCS smelled marijuana when Child was

      present in Mother’s home. Id. at 16. Mother also had two homeless

      individuals living with her, and one was a drug user. Id. Mother left Child

      home alone while taking her daughter to school. Id. at 17. Mother admitted

      she had installed a deadbolt to keep Child from leaving his room and had

      locked Child in his room numerous times. Id. Mother had removed the

      deadbolt before DCS’s initial visit because she realized it “sounded bad.” Id.

      Mother had difficulty disciplining Child, and prior to DCS involvement, Child

      was out of control and would hit Mother after Mother spanked him. Id. at 18.

      Child had tooth enamel problems, but Mother did not take him to the dentist

      from August 9, 2015 to March 7, 2017. Id. at 19.

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[6]   At the time of the temporary custody order, DCS had no concerns with Father

      having custody of Child. Id. at 20. The trial court ordered that neither party

      was to allow any contact between Child and Clark. Id. At that time, Mother’s

      relationship with Clark had ended, and he no longer lived in Mother’s home.

      Id. at 21. Both parties were prohibited from drinking alcohol or using illicit

      substances when Child was in their care. Id. Mother was granted parenting

      time per the IPTG. Id. at 20.


[7]   On May 15, 2018, Mother filed a motion for a final hearing on custody

      modification. Id. at 6. The trial court held an evidentiary hearing on

      September 21, 2018. Id. at 10. In its final order on modification of child

      custody and child support issued on October 21, 2018, the trial court made its

      temporary custody order permanent, modified custody of Child in favor of

      Father, and incorporated the findings contained in the temporary custody order

      into the final order. Id. The trial court awarded Father sole legal and physical

      custody of Child and granted Mother parenting time in accordance with the

      IPTG. Id. at 10-11. At the time of the temporary custody hearing, Child was

      four years old, and at the final hearing, he was six years old. Tr. at 8-9. Mother

      now appeals.


                                     Discussion and Decision
[8]   Mother asserts that the trial court abused its discretion in granting Father’s

      petition for custody modification and awarding sole legal and physical custody

      of Child to Father. We review custody modifications for an abuse of discretion


      Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019   Page 4 of 9
       “with a preference for granting latitude and deference to our trial judges in

       family law matters.” In re the Paternity of C.S., 964 N.E.2d 879, 883 (Ind. Ct.

       App. 2012), trans. denied. This is because the trial court is able to observe the

       parties’ conduct and demeanor and hears their testimonies. Id. We will not

       reweigh the evidence or judge the credibility of witnesses and will reverse the

       trial court’s custody determination based only upon a trial court’s abuse of

       discretion that is “clearly against the logic and effect of the facts and

       circumstances or the reasonable inferences drawn therefrom .” Id. “[I]t is not

       enough that the evidence might support some other conclusion, but it must

       positively require the conclusion contended for by the appellant before there is a

       basis for reversal.” Id.


[9]    Father did not file an appellee’s brief. When an appellee fails to submit a brief

       on appeal, we apply a less stringent standard of review with respect to the

       showing necessary to establish reversible error. In re Paternity of S.C., 966

       N.E.2d 143, 148 (Ind. Ct. App. 2012), trans. denied. We may reverse if the

       appellant establishes prima facie error, which is an error at first sight, on first

       appearance, or on the face of it. Riggen v. Riggen, 71 N.E.3d 420, 422 (Ind. Ct.

       App. 2017). Moreover, we will not undertake the burden of developing legal

       arguments on the appellee’s behalf. Id.


[10]   Mother argues that the trial court abused its discretion when it modified

       custody of Child in favor of Father and awarded Father sole legal and physical

       custody. Specifically, Mother contends that the trial court did not expressly

       indicate which statutory factors regarding custody had substantially changed

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       and did not explain why a change in custody is in the best interests of Child.

       She asserts that the trial court’s previous grant of temporary change of custody

       to Father was not sufficient to warrant a permanent custody modification and

       that evidence was presented that the circumstances that supported the

       temporary change of custody had been remedied at the time of the final

       hearing. Mother further maintains that, although it was permissible for the trial

       court to consider the temporary custody order in its determination of the

       custody modification, it is only a part of the consideration of whether

       modification is in the best interests of a child, and Father presented no evidence

       to support a finding that custody modification in favor of Father was in Child’s

       best interests.


[11]   Here, the trial court entered findings and conclusions sua sponte. When the

       trial court enters findings sua sponte, the specific 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. Montgomery v. Montgomery, 59 N.E.3d 343, 349

       (Ind. Ct. App. 2016), trans. denied. The specific findings will not be set aside

       unless they are clearly erroneous. Collyear-Bell v. Bell, 105 N.E.3d 176, 184 (Ind.

       Ct. App. 2018). A finding is clearly erroneous when there are no facts or

       inferences drawn therefrom that support it. Id. In reviewing the trial court’s

       findings, we neither reweigh the evidence nor judge the credibility of the

       witnesses. Id.


[12]   Pursuant to Indiana Code section 31-17-2-21, a trial court may not modify an

       existing custody order unless: (1) the modification is in the best interests of the

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019   Page 6 of 9
child; and (2) there has been a substantial change in one or more of the

statutory factors set forth in Indiana Code section 31-17-2-8. The factors a trial

court is to consider under section 31-17-2-8 are:


        (1) The age and sex of the child.


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


        (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.




Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019   Page 7 of 9
               (7) 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. . . .


       To support a modification of custody under Indiana Code section 31-17-2-21,

       the trial court must find that (1) the change would be in the child’s best

       interests, (2) it considered the factors listed above, and (3) there has been a

       substantial change in one of those factors. Collyear-Bell, 105 N.E.3d at 184.


[13]   In the present case, the trial court’s findings in its order modifying custody are

       insufficient to support a modification of custody. In the order, the trial court

       simply stated, “Modification of custody is in the best interest of the child.

       Father shall have sole legal and physical custody of the minor child.”

       Appellant’s App. Vol. 2 at 11. It then went on to list the statutory factors it

       considered in making that determination. However, the trial court made no

       explicit finding that there had been a substantial change in one of the statutory

       factors under Indiana Code section 31-17-2-8 that warranted a modification of

       custody. Id. at 10-12.


[14]   In order to support a modification of custody, the trial court is required to make

       “a finding that a change would be in the child’s best interests,” to consider “the

       factors listed in [Indiana Code section 31-17-2-8], and [to make] a finding that

       there has been a substantial change in one of those factors.” Nienaber v.

       Nienaber, 787 N.E.2d 450, 456 (Ind. Ct. App. 2003). Indiana courts have


       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019   Page 8 of 9
       interpreted the language of the statute to require the trial court to find there has

       been a substantial change in one or more of the statutory factors. Kanach v.

       Rogers, 742 N.E.2d 987, 989 (Ind. Ct. App. 2001). The court must “consider”

       the statutory factors and find there has been a substantial change. Id.


[15]   Here, nowhere in the trial court’s order was there a finding that there had been

       a substantial change in any of the factors set out in Indiana Code section 31-17-

       2-8. Based on our less stringent standard of review due to Father’s failure to file

       an appellee’s brief, we conclude that Mother has shown prima facie error. The

       trial court abused its discretion when it modified custody in favor of Father.1

       We, therefore, vacate the trial court’s order and remand for further findings.


[16]   Vacated and remanded with instructions.


       Vaidik, C.J., and Altice, J., concur.




       1
         Mother also raises an issue contending that the parties effected a de facto modification of Mother’s
       parenting time because an exhibit that she presented at the evidentiary hearing showed that Mother signed
       Child into school all but five days during a seven-month period. Appellant’s Br. at 21 (citing Ex. Vol. at 13).
       However, although the cited exhibit does show that Mother signed Child into school thirty-four times in the
       seven-month period reflected in the exhibit, this is not enough to extrapolate that she had Child an additional
       ninety-six nights per year and that the trial court erred in giving Mother credit for only ninety-eight
       overnights.

       Court of Appeals of Indiana | Memorandum Decision 18A-JP-2758 | June 26, 2019                       Page 9 of 9
