MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                          May 24 2018, 5:54 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Matthew T. Black                                        Ary Avnet
Adam Clay                                               Metzger Rosta, LLP
Black Clay LLC                                          Noblesville, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Marriage of:                       May 24, 2018

Bobbie Sales (f/k/a                                     Court of Appeals Case No.
                                                        29A02-1709-DR-2150
Bobbie Herron),
                                                        Appeal from the
Appellant-Respondent,                                   Hamilton Superior Court
        v.                                              The Honorable
                                                        Steven R. Nation, Special Judge
Richard Allen Moulder, Jr.,                             Trial Court Cause No.
                                                        29D01-1112-DR-12869
Appellee-Petitioner.



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018                Page 1 of 24
[1]   Bobbie Sales, formerly known as Bobbie Herron, (“Mother”) appeals the trial

      court’s order denying her petition for modification of custody and parenting

      time for her children, K.M. and R.M., raising the following restated issues:


                 I. Whether the trial court erred by denying Mother’s petition for
                 modification of custody;


                 II. Whether the trial court erred by restricting Mother’s
                 parenting time and access to K.M.’s and R.M.’s educational
                 records; and


                 III. Whether the trial court erred by modifying child support.


[2]   We affirm in part, reverse in part, and remand with instructions.1


                                    Facts and Procedural History2
[3]   Mother and Richard Allen Moulder, Jr. (“Father”) (together, “Parents”) were

      married in 2007 and had two children, K.M., born October 11, 2008, and R.M.,

      born January 19, 2010 (together, “Children”). Parents’ marriage was dissolved

      by “Waiver of Final Hearing, Mediated Settlement Agreement, and Decree of

      Dissolution of Marriage,” which the trial court approved on September 5, 2012.

      Pursuant to that Decree, Parents agreed to share joint legal custody of Children,




      1
          By separate order, we deny Father’s motion for oral argument.
      2
        The facts are, in part, taken from the “Preliminary Findings and Conclusions” that the trial court made in
      its March 17, 2015 “Findings of Fact, Conclusions of Law, and Order.” Appellant’s App. Vol. 2 at 64-85.
      Because Mother petitioned the trial court to modify that order’s terms of custody, and we focus on events
      that occurred after the March 2015 Order, we include facts that occurred between September 5, 2012 and
      March 17, 2015 only for historical context.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018               Page 2 of 24
      with Mother having primary physical custody subject to Father’s parenting time

      and reasonable phone contact. Both Parents also agreed to refrain from

      discussing the other with Children except in a manner that was “supportive of

      or complementary to the other” and “refrain from any effort to alienate the

      children from the other party, the absolute aim of the parties to be a healthy,

      respectful relationship between the children and each party.” Appellee’s App.

      Vol. II at 3.


[4]   In early 2013, both Parents filed petitions regarding modification of custody,

      support, and parenting time, and Father filed a petition for rule to show cause.

      A hearing was held on those pending petitions on July 9, 2013 and, on July 30,

      2013, the trial court issued its Order (“the 2013 Order”), finding that Mother

      had: (1) made “unilateral legal custody decisions”; (2) “intentionally acted to

      exclude Father from the children’s legal custody decisions”; and (3) “engaged in

      a pattern of conduct aimed at entirely excluding Father from the children’s

      lives.” Id. at 7. The 2013 Order designated that Father, upon his return to

      Indiana following his military service in California, would have sole legal

      custody of and be the primary physical custodian for Children. However,

      Mother was granted physical custody of Children until Father’s return. The

      2013 Order required Mother to “attend psychotherapy with Dr. Mac Greene or

      another psychotherapist at the recommendation of Dr. Greene” and “execute

      all necessary documentation so that her psychotherapy and counseling records

      [could] be obtained by Father.” Id. at 11. The trial court noted it would




      Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 3 of 24
      consider restricting Mother’s parenting time if she continued to disparage

      Father and inappropriately involve Children in disputes. Id. at 9.


[5]   Father returned to Indiana in July 2014 and discovered that Mother had moved

      Children to Kansas without filing a Notice of Intent to Relocate as required by

      Indiana law. On Father’s motion, the trial court held an emergency hearing

      and issued its order, requiring Mother to immediately return Children to Father

      in Hamilton County, Indiana. Thereafter, the trial court, with input from

      Father’s counsel and Mother’s then-counsel, ordered that Mother’s parenting

      time be supervised.


[6]   On July 25, 2014, Mother filed a Verified Petition for “Ph.D. Forensic Custody

      Evaluation,” and on September 5, 2014, she filed a “Verified, Renewed,

      Petition for Ph.D. Forensic Custody Evaluation and Advance Hearing on the

      Matter.” Appellant’s App. Vol. 2 at 65. Pursuant to an agreed entry, Parents

      decided that therapist Janine Miller would perform the custody evaluation at

      Mother’s sole expense; however, around October 29, 2014, Mother withdrew

      her petition. Father had no objection to the withdrawal of Mother’s request for

      evaluation, but reserved the right to present evidence as to his attorney fees

      incurred for Mother’s request and later withdrawal.


[7]   On March 10, 2015, the trial court held a hearing to address ten pending

      motions, including four of Father’s motions to show cause, Mother’s motion to

      enforce parenting time, and Mother’s petition for modification of physical and

      legal custody. On March 17, 2015, the trial court entered its order (“March


      Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 4 of 24
      2015 Order”), reaffirming Father’s sole legal custody and primary physical

      custody of Children and voicing its concerns about Mother’s mental health and

      the fact that she had not complied with the trial court’s past orders to participate

      in psychotherapy. Id. at 78. The trial court found that Mother’s 2014 action of

      moving Children to Kansas, without filing a Notice of Intent to Relocate or

      notifying Father as to Children’s whereabouts, endangered Children’s physical

      health and impaired their emotional development. The trial court also found

      that Mother remained a flight risk because she was planning to move to

      California on March 21, 2015, yet had failed to inform Father or the trial court

      until the March 10, 2015 hearing. Furthermore, the trial held that Mother’s

      disparagement of Father, her inability to display appropriate boundaries with

      Children, and her continued reports to the police and DCS, were damaging to

      Children’s physical health and impaired their emotional development.

      Therefore, the trial court found that supervised parenting time for Mother was

      in Children’s best interests until she completed psychotherapy with a licensed

      professional. Additionally, the trial court ordered Mother to participate in joint

      therapy with Children and their therapist at a frequency determined by

      Children’s therapist, Jessi Wild (“therapist Wild”).


[8]   About eight months later, Father filed a petition for modification of custody.

      The trial court held a hearing in December 2015, during which Father testified

      that Mother had made disparaging remarks about Father to Children during

      telephone calls. Therapist Wild corroborated Father’s testimony, as did a

      recording of a phone call between Mother and Children. Based on the evidence


      Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 5 of 24
       presented, the trial court found that Mother’s “current telephonic contact” with

       Children was harmful to them and that it was in the best interests of Children

       that such contact be reduced. Id. at 89. Accordingly, the trial court reduced

       Mother’s telephone contact to two days a week and gave Father the option to

       monitor the calls and to terminate any call he found was inappropriate.


[9]    In the spring of 2016, Mother participated in therapy with therapist Wild and

       Children. On May 26, 2016, the parties filed, and the trial court approved, an

       agreed entry, which provided: (1) “[Mother] has been in therapy with the

       parties’ children and [therapist Wild] since March 2016”; (2) “[therapist Wild]

       approves of [Mother] having parenting time with children over the summer;

       and Parents “agree that [Mother] shall have visitation with the children in

       California, beginning May 27, 2016 through July 25, 2016.” Id. at 90.


[10]   On July 29, 2016, four days after the end of Children’s summer parenting time

       with Mother, Mother filed her petition for modification of custody, motion for

       change of judge, and motion for appointment of a guardian ad litem (“Petition

       for Custody Modification”). Id. at 92. Judge Steven R. Nation was selected as

       special judge on August 12, 2016, and the trial court approved the appointment

       of a guardian ad litem (“the GAL”) on January 19, 2017. Id. at 97, 100. In

       March 2017, the GAL requested a continuation of the scheduled May 2017

       custody modification hearing, citing the need to complete the GAL Report.

       Mother objected to a continuation and requested that the hearing proceed as

       scheduled or, in the alternative, that the hearing proceed only for the purpose of

       deciding summer parenting time. Id. at 102. The trial court agreed to proceed

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 6 of 24
       with a hearing on summer parenting time and, following the May 18, 2017

       hearing, took the matter under advisement until such time as the evidence on

       all pending motions was complete. The trial court ordered that Mother’s

       parenting time continue to be supervised.


[11]   Two months later, on July 21, 2017, the trial court held a hearing on Mother’s

       Petition for Custody Modification. About forty-five days prior to that hearing,

       the GAL completed and filed with the trial court the GAL Report, which

       contained facts and procedural history obtained through interviews and

       contacts with, among others, Parents, Children, school personnel, therapists,

       doctors and other medical personnel, childcare providers, and references

       supplied by Mother. During the 2017 hearing, the GAL Report was amended,

       “made part of the record[,] and admitted into evidence”;3 the individuals who

       testified at the hearing included, Mother, Father, Father’s fiancée, therapist

       Wild, and the GAL. Tr. Vol. 2 at 212.


[12]   On August 17, 2017, the trial court entered written findings of fact and

       conclusions thereon (“the instant Order”) pursuant to Mother’s written request.

       In the instant Order, the trial court denied Mother’s request to modify custody,

       denied her request to return to unsupervised parenting time and further

       restricted her supervised parenting time, restricted her access to Children’s




       3
        The version of the GAL Report that was filed with the trial court was amended, on Father’s motion,
       without objection. Tr. Vol. 2 at 213. That amendment is not pertinent to this appeal.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018           Page 7 of 24
       educational records, and modified Mother’s child support order.4 Mother now

       appeals.


                                        Discussion and Decision

                                  I. Custody and Parenting Time
[13]   Mother contends that the trial court erred when it denied her Petition for

       Custody Modification. In that Petition, Mother argued that because it was in

       Children’s best interest to spend more time with her, the trial court should

       change her parenting time to unsupervised and evaluate Parents’ custodial

       arrangement to determine if modification is in Children’s best interests.

       Appellant’s App. Vol. 2 at 93.


[14]   Here, Mother filed the Petition for Custody Modification and, therefore, bore

       “the burden of demonstrating the existing custody should be altered.” Steele-

       Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). Indeed, this “more stringent

       standard” is required to support a change in custody, as opposed to an initial

       custody determination where there is no presumption for either parent because

       “permanence and stability are considered best for the welfare and happiness of

       the child.” Id. (citation omitted). When evaluating whether a change of

       circumstances has occurred that is substantial enough to warrant a modification

       of custody, the context of the whole environment must be judged, “‘and the




       4
        The trial court also denied as moot Mother’s request for summer parenting time. Appellant’s App. Vol. 2 at
       59.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018              Page 8 of 24
       effect on the child is what renders a change substantial or inconsequential.’”

       Montgomery v. Montgomery, 59 N.E.3d 343, 350 (Ind. Ct. App. 2016) (quoting In

       re Marriage of Sutton, 16 N.E.3d 481, 485 (Ind. Ct. App. 2014)), trans. denied.


[15]   The Indiana Supreme Court has expressed a preference for granting latitude

       and deference to our trial judges in family law matters. Steele-Giri, 51 N.E.3d at

       124. “‘On appeal it is not enough that the evidence might support some other

       conclusion, but it must positively require the conclusion contended for by

       appellant before there is a basis for reversal.’” Id. (quoting Kirk v. Kirk, 770

       N.E.2d 304, 307 (Ind. 2002)). We neither reweigh the evidence nor assess

       witness credibility. Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App.

       2010). Rather, we consider only the evidence and inferences most favorable to

       the trial court’s judgment. Id.


[16]   By appealing the denial of her request to modify custody and parenting time,

       Mother appeals from a negative judgment. See Nunn v. Nunn, 791 N.E.2d 779,

       783 (Ind. Ct. App. 2003). We will reverse a negative judgment only if it is

       contrary to law, meaning that the evidence points unerringly to a conclusion

       different from that reached by the trial court. Id.


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

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

       child; and (2) there is a substantial change in one or more of the factors that the

       court may consider under section 8 of this chapter. The pertinent factors in

       section 8 include: (1) the wishes of the child’s parent or parents; (2) the


       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 9 of 24
       interaction and interrelationship of the child with his or her parents, siblings,

       and anyone else significant to the child’s best interest; (3) the child’s adjustment

       to his or her home, school, and community; and (4) the mental and physical

       health of all individuals involved. Ind. Code § 31-17-2-8.


[18]   Here, Mother’s actions have caused her custody and parenting time to become

       more restricted over time. In 2012, as part of the mediated dissolution, Parents

       agreed that they would share joint legal custody of Children and that Mother

       would have primary physical custody subject to Father’s parenting time. In its

       2013 Order, the trial court, citing Mother’s “unilateral legal custody decisions”

       and intentional exclusion of Father in Children’s lives, modified Parents’

       custody arrangement and granted Father sole legal custody and primary

       physical custody of Children. Appellee’s App. Vol. II at 7. By 2015, the trial

       court found it was in Children’s best interest that Mother’s parenting time be

       supervised until she completed psychotherapy with a licensed professional.

       Appellant’s App. Vol. 2 at 79. The trial court found that Mother’s 2014 action of

       relocating Children to Kansas without notifying Father or the State endangered

       Children’s physical health and impaired their emotional development. Id.

       Furthermore, the trial court held that Mother’s disparagement of Father in front

       of Children, her inability to display appropriate boundaries with Children, and

       her continued reports to the police and DCS, were damaging to Children’s

       physical health and impaired their emotional development. Id.


[19]   Four days after the end of Mother’s summer parenting time with Children, she

       filed her Petition for Custody Modification, citing in support thereof that: (1)

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 10 of 24
       Mother sees a clinical psychologist on a regular basis; (2) she completed family

       therapy with Children and therapist Wild in May 2016; (3) Parents agreed in

       May 2016, with the approval of therapist Wild, that Mother would have two

       months of unsupervised parenting time with Children at Mother’s California

       home; (4) during the summer parenting time, Mother expressed to Father

       concerns for Children’s health and took Children for various medical check-

       ups; and (5) it is in the best interests of Children for them to spend more time

       with her, that such time be unsupervised, and that the trial court evaluate

       Parents’ custodial arrangement to determine if modification is in Children’s best

       interests. Appellant’s App. at Vol. 2 at 92 (emphasis added). A hearing on the

       Petition for Custody Modification was held in July 2017, during which, the trial

       court, without Mother’s objection, admitted into evidence the 132-page GAL

       Report. Also during that hearing, Mother testified that she planned to live in

       California, where her husband is stationed, for at least six years. Mother

       further admitted that she and Father do not have “good communication.” Tr.

       Vol. 2 at 87, 91.


[20]   The trial court entered its written findings of fact and conclusions thereon

       pursuant to Mother’s written request under Trial Rule 52(A). Indiana Trial

       Rule 52(A) provides that a court on appeal “shall not set aside the findings or

       judgment unless clearly erroneous, and due regard shall be given to the

       opportunity of the trial court to judge the credibility of the witnesses.” Indiana

       law requires a determination on “whether the evidence supports the findings

       and whether the findings support the judgment.” Pitcavage v. Pitcavage, 11


       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 11 of 24
       N.E.3d 547, 552 (Ind. Ct. App. 2014). The trial court’s findings and

       conclusions will be found clearly erroneous “if they are unsupported by the

       facts and inferences contained in the record.” Id. at 553. “We will find the

       judgment to be clearly erroneous if, after reviewing the record, we are left with

       a firm conviction that there has been a mistake.” Id.


[21]   Citing to findings 29 through 43 in the instant Order, Mother argues that the

       trial court “issued findings that merely identify what Father (and in some cases

       Mother) testified to or contended.” Appellant’s Br. at 20. Mother asserts that

       the trial court neither referred to corroborating evidence, see e.g., Bowyer v. Ind.

       Dep’t of Nat. Res., 944 N.E.2d 972, 984 (Ind. Ct. App. 2011), nor indicated how

       the recounting of Father’s testimony led it to specific findings. Pitcavage, 11

       N.E.3d at 533. Our court has said, “Findings of fact are a mechanism by which

       a trial court completes its function of weighing the evidence and judging

       witnesses’ credibility,” and a trial court “does not find something to be a fact by

       merely reciting that a witness testified to X, Y, or Z.” Id. Instead, “the trier of

       fact must find that what the witness testified to is the fact.” Id. Thus, “where a

       trial court’s findings are merely recitations of a witness’s testimony, they cannot

       be construed as ‘true factual determinations.’” Id. (citing Garriott v. Peters, 878

       N.E.2d 431, 438 (Ind. Ct. App. 2007), trans. denied). We treat the trial court’s

       inclusion of these findings as “mere surplusage” rather than harmful error. Id.

       Here, we need not address whether the challenged findings are valid because,

       even if we treat some as surplusage, Mother’s testimony, her admissions in the

       GAL Report, and the remaining findings support the trial court’s determination

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 12 of 24
       that Father should retain sole legal and primary physical custody of Children,

       and that Mother’s parenting time should continue as supervised.


[22]   Regarding custody, this court recently held:


               [W]hether the parents are willing and able to cooperate in
               advancing the child’s welfare, is of particular importance in
               making legal custody determinations. . . . Where the parties have
               made child-rearing a battleground, then joint custody is not
               appropriate. Indeed, to award joint legal custody to individually
               capable parents who cannot work together is tantamount to the
               proverbial folly of cutting the baby in half in order to effect a fair
               distribution of the child to competing parents.


       Milcherska v. Hoerstman, 56 N.E.3d 634, 641-42 (Ind. Ct. App. 2016) (internal

       citations, quotation marks, and parentheticals omitted). Here, Mother does not

       dispute the trial court’s finding that she and Father do not have “good

       communication.” Tr. Vol. 2 at 87. In denying Mother’s Petition for Custody

       Modification, the trial court concluded that “a change of custody [was] not in

       the best interest of the children at this time.” Appellant’s App. Vol. 2 at 59. The

       evidence before us does not point unerringly to a conclusion different from that.

       The trial court did not err when it denied Mother’s request to modify legal

       custody.


[23]   Mother’s claim that the trial court erred when it did not grant her unsupervised

       parenting time likewise fails. Mother and Children took part in therapy with

       therapist Wild for about three months in the spring of 2016. Thereafter, Parents

       and therapist Wild agreed, with the consent of the trial court, that Mother could


       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 13 of 24
       have two months of unsupervised parenting time in California during the

       summer of 2016. This agreed entry, however, did not change the underlying

       status that parenting time would be supervised upon Children’s return to

       Indiana. Mother had the burden to prove that parenting time should no longer

       be supervised.


[24]   In the spring of 2017, to gather information for the GAL Report, the GAL

       reviewed various videos of telephone conversations between Mother and

       Children, some of which she described in the GAL Report as follows. In an

       April 2017 call, Mother asked K.M. if she missed Mother anymore and asked if

       K.M. was saying that Mother was not her mom anymore. Appellee’s Conf. App.

       at 91-92. K.M. began to cry and, twice, said she was sorry. Id. at 92. Mother

       told K.M., “[Y]ou don’t have to fake cry, okay.” Id. at 92. K.M. told Mother

       she was not fake crying, said she did not want to speak with Mother anymore,

       and hung up the phone. Id. In a call to R.M. that same day, R.M. asked

       Mother why she made K.M. cry. Id. Mother told R.M. that she didn’t make

       K.M. do anything, “I asked her a question and she decided to act the way she

       did.” Id. Mother told R.M. she heard that Children are saying Mother is not

       their mom, which hurts Mother’s feelings. Id. R.M. explained that Father’s

       fiancée could be their mom too, saying, “[Y]ou don’t have to be our only

       mom.” Id. Mother responded, “[S]he’s a live-in girlfriend, and she has no legal

       rights to you.” Id.


[25]   The GAL Report also reflected statements made by Mother directly to the

       GAL—statements made through written and verbal communication. Mother,

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 14 of 24
       describing a 2017 telephone conversation she had with K.M., admitted to

       calling K.M. “disrespectful” and “accusatory” when K.M. raised a topic that

       Mother did not want to discuss. Id. at 39. Mother confirmed with the GAL

       that she was being treated for Post-Traumatic Stress Disorder, yet believed that

       she had never been diagnosed with a mental health condition. Id. at 40.

       Mother also said that she had taken the Minnesota Multiphase Personality

       Inventory, and there were no findings. Id. The GAL requested a copy of that

       test, but through Mother’s counsel, the GAL was told that the evaluation was

       completed as part of a psychological evaluation to see if she could participate in

       a “TV show,” and the test could not be released because one of the television

       networks owned the rights. Id.


[26]   Although Mother filed a motion to exclude part of the GAL Report as being

       inaccurate, she made no such request about the rest of the GAL Report.

       Mother cannot contest findings that are based on her own words. Based on this

       evidence, the findings were supported by properly admitted evidence. Here, the

       trial court did not err in finding in favor of the continuation of supervised

       parenting time.


                     II. Parenting Time and Educational Records
[27]   Mother next argues that the trial court erred “[b]y failing to identify the basis of

       its conclusion or meet the statutory basis for restricting Mother’s parenting

       time.” Appellant’s App. at 26. “‘Indiana has long recognized that the rights of

       parents to visit their children is a precious privilege that should be enjoyed by


       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 15 of 24
       noncustodial parents.’” Patton v. Patton, 48 N.E.3d 17, 21 (Ind. Ct. App. 2015)

       (quoting Duncan v. Duncan, 843 N.E.2d 966, 969 (Ind. Ct. App. 2006), trans.

       denied). “A parent not granted custody of the child is entitled to reasonable

       parenting time rights unless the court finds, after a hearing, that parenting time

       by the noncustodial parent might endanger the child’s physical health or significantly

       impair the child’s emotional development.” Ind. Code § 31-17-4-1 (emphasis

       added). Indiana Code section 31-17-4-2 provides:


               The court may modify an order granting or denying parenting
               time rights whenever modification would serve the best interests
               of the child. However, the court shall not restrict a parent’s
               parenting time rights unless the court finds that the parenting
               time might endanger the child’s physical health or significantly
               impair the child’s emotional development.


       Despite the statute’s use of the word “might,” for over twenty-five years

       Indiana Courts have interpreted the statute to require evidence that parenting

       time “would,” not “might,” endanger or impair the physical or mental health of

       the child. Patton, 48 N.E.3d at 21 (citing Perkinson v. Perkinson, 989 N.E.2d 758,

       763 (Ind. 2013)).


[28]   Here, the March 2015 Order provided:


               9. Mother’s actions[,] in leaving the State of Indiana without
               filing a Notice of Intent to Relocate in May 2014, and failure to
               provide any notification to Father as to where the Children
               were[,] endangers the Children’s physical health and impairs their
               emotional development. The Court also believes Mother continues
               to be a flight risk because she testified at the March 10, 2015,
               hearing that she was moving to California on March 21, 2015,

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 16 of 24
               without any notification to the Court or to Father in advance of
               the March 10, 2015 hearing. Furthermore, Mother’s
               disparagement of Father, inability to display appropriate
               boundaries with the Children, continued reports to the police and
               DCS are damaging to the Children’s physical health and impairs their
               emotional development.


               10. The Court finds that supervised parenting time for Mother is
               in the Children’s best interest until such time as she completes
               psychotherapy with a licensed professional recommended by Dr.
               Mac Greene.


       Appellant’s App. Vol. 2 at 79. Based on the finding of endangerment, the trial

       court ordered that Mother have “supervised parenting time with the Children at

       the Family Access Center in Noblesville, Indiana.” Id. at 82. The trial court

       further ordered that “Mother shall arrange the times for supervised parenting

       time directly with the Family Access Center when she returns to Indiana for

       visits on at least seven (7) days’ notice to Father; Mother may enjoy up to four (4)

       hours of parenting time with the Children. Id. (emphasis added)


[29]   In the summer of 2016, by agreement of Parents and approval of therapist Wild,

       Mother enjoyed two months of unsupervised parenting time. At the end of the

       parenting time, Mother returned Children to Father safely and promptly. Four

       days later, Mother filed a Petition for Custody Modification, requesting a

       modification of custody and parenting time. Here, evidence was before the trial

       court through the GAL Report and the testimony of various witnesses, and, in

       the instant Order, the trial court held:



       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 17 of 24
               12. That prior to the commencement of Mother’s therapeutic
               parenting time, Mother shall participate in treatment with Ms.
               Wild and the children in a manner and for a duration that Ms.
               Wild recommends. Once Ms. Wild recommends that Mother and the
               children are ready for parenting time then parenting time shall proceed in
               that Mother shall have therapeutic supervised parenting time
               through Meridian Psychological Associates with Janine Miller,
               Psy.D. or another doctoral level therapist with experience in
               therapeutic supervised parenting time. Said supervised parenting
               time shall occur in Indiana and shall be no more than 4 hours per
               month unless determined by Dr. Miller or other doctoral level
               therapist that such frequency or duration should be increased or
               decreased.


       Appellant’s App. Vol. 2 at 60-61 (emphasis added). Mother claims the trial court

       erred, first, by improperly suspending all of her parenting time (until therapist

       Wild determined that parenting time should proceed) without making a

       concurrent finding that her parenting time would “endanger the [C]hild[dren]’s

       physical health or significantly impair [their] emotional development,” and

       second, by restricting her parenting time, once commenced, to four hours per

       month. Appellant’s Br. at 23, 26.


[30]   Father argues that a finding of endangerment is inapplicable here because that

       language applies only where “no parenting time was granted to the noncustodial

       parent,” not where, as here, “parenting time was ordered to be supervised and

       within certain parameters designed to protect the best interests of” the child.

       Appellee’s Br. at 23 (quoting J.M. v. N.M, 844 N.E.2d 590, 599-600 (Ind. Ct. App.

       2006) (emphasis original), trans. denied). Assuming without deciding that

       Father is correct, we agree with Mother that the trial court suspended all of

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 18 of 24
       Mother’s parenting time, including supervised parenting time, until such time

       as therapist Wild recommended that Mother and the Children were ready for

       parenting time. Appellant’s Br. at 25. The trial court’s suspension of Mother’s

       parenting time is open-ended. Nothing precludes Mother from requesting that

       the trial court require therapist Wild to provide progress reports to the court or

       otherwise keep the court informed as to when therapeutic parenting time may

       begin.


[31]   The determination of whether Mother’s parenting time posed a danger to

       Children’s physical or mental health is a question of fact that requires the trial

       court to weigh the evidence and judge witness credibility. Here, we cannot say

       that the GAL Report and the testimony of witnesses at the modification hearing

       provided insufficient evidence to make such a finding; we can only say that

       those explicit findings were not made. Accordingly, we remand to the trial

       court the question of whether parenting time with Mother would endanger

       Children’s physical health or significantly impair their emotional development.


[32]   In addition to restricting Mother’s parenting time, the trial court ordered “[t]hat

       Mother shall cease all contact and be denied contact with the [C]hildren’s school,

       extracurricular activities, clubs, doctors, therapists, and other activities that the

       [C]hildren participate in until therapeutic therapy as previously outlined is

       completed and either Ms. Wild or Dr. Janine Miller recommends such

       contact.” Appellant’s App. Vol. 2 at 62. Mother interprets the italicized language

       to mean that the trial court has restricted her from having access to Children’s



       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 19 of 24
       “educational records,” and she argues that the evidence before the trial court

       does not support that conclusion. Appellant’s Br. at 30.


[33]   Here, the language used by the trial court—Mother is “denied contact with the

       [C]hildren’s school”—does not specifically state that Mother is denied access to

       the educational records, but such a conclusion is implicit in the trial court’s

       order “[t]hat Mother shall cease all contact and be denied contact with the [C]hildren’s

       school.”


[34]   The Indiana General Assembly has shown a preference for each parent having

       access to a child’s educational records. Indiana Code section 20-33-7-2

       provides:


               (a) Except as provided in subsection (b), a nonpublic or public
               school must allow a custodial parent and a noncustodial parent
               of a child the same access to their child’s education records.


               (b) A nonpublic or public school may not allow a noncustodial
               parent access to the child’s education records if:


               (1) a court has issued an order that limits the noncustodial
               parent’s access to the child’s education records; and


               (2) the school has received a copy of the court order or has actual
               knowledge of the court order.


       Nothing in the trial court’s order precludes Mother from asking the trial court to

       provide alternative access to the Children’s educational records.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 20 of 24
                             III. Modification of Child Support
[35]   Finally, Mother argues that the trial court abused its discretion when it

       modified her weekly child support payments from $76.47, as of March 2015, to

       $133.00, beginning August 25, 2017. Appellant’s Br. at 30-31; Appellant’s App.

       Vol. 2 at 63, 86. We begin by noting that Father did not respond to that

       argument in his brief. Father’s failure to respond to an issue raised in Mother’s

       brief is “akin to failing to file a brief as to that issue.” Gwinn v. Harry J. Kloeppel

       & Assocs., Inc., 9 N.E.3d 687, 690 (Ind. Ct. App. 2014). “‘Although this failure

       does not relieve us of our obligation to correctly apply the law to the facts in the

       record in order to determine whether reversal is required, counsel for appellee

       remains responsible for controverting arguments raised by the appellant.’” Id.

       (quoting Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 837 (Ind. Ct.

       App. 2005), trans. denied). “To obtain reversal, the appellant need only establish

       that the trial court committed prima facie error.” Id. Prima facie error in this

       context means “‘at first sight, on first appearance, or on the face [of] it.’” Id.

       (quoting Ponziano Constr. Servs. Inc. v. Quadri Enters., LLC, 980 N.E.2d 867, 875

       (Ind. Ct. App. 2012)).


[36]   “‘Decisions regarding child support rest within the sound discretion of the trial

       court.’” Taylor v. Taylor, 42 N.E.3d 981, 986 (Ind. Ct. App. 2015) (quoting

       Haley v. Haley, 771 N.E.2d 743, 752 (Ind. Ct. App. 2002)), trans. denied. “Thus,

       we reverse child support determinations only if the trial court abused its

       discretion or made a determination that is contrary to law.” Id. “‘An abuse of

       discretion occurs when the decision is clearly against the logic and effect of the

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 21 of 24
       facts and circumstances before the court, including any reasonable inferences

       therefrom.’” Holtzleiter v. Holtzleiter, 944 N.E.2d 502, 505 (Ind. Ct. App. 2011)

       (quoting In re Paternity of E.M.P., 722 N.E.2d 349, 351 (Ind. Ct. App. 2000)).


[37]   Modification of child support may be made only under certain conditions.

       Indiana Code section 31-16-8-1 in pertinent part provides:


               (b) Except as provided in section 2 of this chapter, modification
               may be made only:


               (1) upon a showing of changed circumstances so substantial and
               continuing as to make the terms unreasonable; or


               (2) upon a showing that:


               (A) a party has been ordered to pay an amount in child support
               that differs by more than twenty percent (20%) from the amount
               that would be ordered by applying the child support guidelines;
               and


               (B) the order requested to be modified or revoked was issued at
               least twelve (12) months before the petition requesting
               modification was filed.


       Ind. Code § 31-16-8-1. Our court has said, “[W]hen a change in the parent’s

       income would modify the child-support order by less than 20%, that change, by

       itself, is not enough to meet the statutory burden of subsection (b)(1), but

       ‘[t]here may be situations where a variety of factors converge to make such a

       modification permissible under the terms of the statute.’” Maple v. Maple, 71

       N.E.3d 75, 80 (Ind. Ct. App. 2017) (quoting MacLafferty v. MacLafferty, 829
       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 22 of 24
       N.E.2d 938, 942 (Ind. 2005)). “In other words, in order to satisfy subsection

       (b)(1) a parent must prove that one or more factors, in addition to any change in

       income, have ‘converged’ to create a change in circumstances so substantial and

       continuing as to make the prior order unreasonable.” Id. While possible, “it

       will be uncommon for multiple factors to ‘converge’ to create a change in

       circumstances so substantial and continuing as to make the prior order

       unreasonable.” Id.


[38]   This case is not one of those instances. Here, we find no evidence in the record

       before us to establish that one of the Parents was paying child support in an

       amount that was more than twenty percent of the child support guideline as

       required by Indiana Code section 31-16-8-1(b)(2)(A). Furthermore, because

       sole legal custody and primary physical custody remained with Father, there

       was no evidence of “changed circumstances so substantial and continuing as to

       make the terms [of child support] unreasonable.” I.C. § 31-16-8-1(b)(1).


[39]   Moreover, the evidence before the trial court did not support the trial court’s:

       (1) finding 45, which stated, “Father makes $64,500 annually [and] . . . .

       receives a vehicle allowance of $3,600 annually”; and (2) conclusion 19 that

       was based on finding 45 and stated in pertinent part, “That Mother shall pay

       child support to Father in the amount of $133 weekly[,] . . . [which] shall

       commence on August 25, 2017.” Appellant’s App. Vol. 2 at 57. During the

       custody hearing, Father testified that he earned $55,000 per year and received a

       fringe benefit of a $3,000 car allowance. Tr. Vol. 2 at 121. In the GAL Report,

       which was filed with the trial court on June 1, 2017, the GAL noted, “[Father]

       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 23 of 24
       is currently employed . . . earning $55,000.00 working 40 hours per week.”

       Appellee’s App. Vol. II at 42. The trial court’s modification of child support,

       requiring Mother to pay Father $133 per week, was based on a Child Support

       Obligation Worksheet that neither party signed. Appellant’s App. at 63. We find

       no evidence to support the finding that Father made $64,500 per year or a

       conclusion that Mother should pay Father child support in the amount of $133

       per week. The trial court’s determination to the contrary is clearly against the

       logic and effect of the facts and circumstances before it. Accordingly, we

       reverse the trial court’s determination to modify Mother’s child support

       obligation and remand for the trial court to reinstate the child support order that

       was in place prior to the instant modification.


[40]   Affirmed in part, reversed in part, and remanded with instructions.


       Bailey J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1709-DR-2150 | May 24, 2018   Page 24 of 24
