MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                          Jul 31 2017, 9:07 am

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.


ATTORNEY FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
Heidi K. Koeneman                                         Randall J. Hammond
Beckman Lawson, LLP                                       Leonard, Hammond, Thoma &
Fort Wayne, Indiana                                       Terrill
                                                          Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrea Simon and Jimmie                                   July 31, 2017
Busbee,                                                   Court of Appeals Case No.
Appellants-Intervenors,                                   02A03-1612-JP-02811
       v.                                                 Appeal from the Allen Superior
                                                          Court
Amanda Lynn Busbee,                                       The Honorable Daniel G. Heath,
                                                          Judge
Appellee-Petitioner,
                                                          The Honorable Daniel G. Pappas,
and                                                       Magistrate
                                                          Trial Court Cause No.
Levi A. Fuller,                                           02D07-1206-JP-000348
Appellee-Respondent.




Najam, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017      Page 1 of 15
                                            Statement of the Case
[1]   Andrea Simon and Jimmie Busbee (collectively, “Grandparents”) appeal the

      trial court’s denial, following a bench trial, of their petitions for child custody

      and grandparent visitation. They raise three issues, which we restate as follows:

                 1. Whether the trial court committed clear error when it denied
                    Grandparent’s Petition to Modify Custody.


                 2. Whether the trial court committed clear error when it denied
                    Grandparent’s Petition for Grandparent Visitation.


                 3. Whether the trial court abused its discretion when it ordered
                    Grandparents to pay Amanda Lynn Busbee’s (“Mother”)
                    attorney’s fees without an evidentiary hearing.


[2]   We affirm.


                                     Facts and Procedural History
[3]   Minor child, A.B., was born on June 7, 2012, to Mother and Levi Fuller

      (“Father”).1 Mother filed a petition to establish paternity and support on June

      26, 2012. On August 6, the trial court entered an order establishing paternity

      and awarded sole legal custody to Mother and parenting time to Father.


[4]   Although Mother had obtained a four-year degree in criminal justice from

      Indiana Tech, she worked as a waitress and/or bartender after A.B. was born,




      1
          Father did not seek custody of A.B. and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 2 of 15
      until approximately September 2015. During that time, Mother and A.B. lived

      together but Mother relied on Grandparents to provide work-related child care

      for A.B. Because Mother’s jobs required her to work late hours—often until

      1:00 or 2:00 a.m.—A.B. frequently spent the night at Grandparents’ home.

      Grandparents frequently encouraged Mother to allow A.B. to spend the night

      with them.


[5]   Grandparents had never been married but had been in a relationship for

      approximately thirty-two years. They owned a tobacco retail store in Fort

      Wayne at which they sold, among other things, various tobacco products,

      smoking devices, and sex toys. Grandparents were not salaried employees of

      the store, but received all net proceeds from the sales of the business, totaling

      approximately $60,000-$70,000 per year. During the day, Jimmie Busbee

      (“Grandfather”) was primarily responsible for providing child care for A.B.,

      although the Grandparents sometimes took A.B. with them to their store.

      When A.B. spent the night with Grandparents, she slept with Grandfather in

      his bed.


[6]   On September 25, 2014, Mother married Shane Ortega, who is employed with

      Jack Cooper Transport and earns approximately $60,000-$70,000 per year.

      Mother and Ortega had a child together, S.O., who was born on July 4, 2015.

      Ortega also has two minor daughters from a previous marriage, and he has joint

      legal custody of them and parenting time with them every other weekend.

      After marrying Ortega, Mother began working only two nights per week.

      However, by August 2016, Mother had ceased working and stayed at home

      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 3 of 15
      with the children full-time. Mother and Ortega shared a three-bedroom home

      with A.B., S.O., and Ortega’s two minor children.


[7]   Even after Mother ceased employment, she still permitted A.B. to have liberal

      visitation with Grandparents. However, Mother became concerned that the

      Grandparents were not respecting her wishes regarding A.B. Grandparents did

      not always bring A.B. home to Mother when asked, and they were sometimes

      not at their home with A.B. when Mother tried to pick A.B. up from them.

      Mother asked Grandparents to cease taking A.B. to their store, which Mother

      believed was inappropriate because of the items sold there, but Grandparents

      did not honor that request. Grandparents enrolled A.B. in a school without

      Mother’s consent, and Grandfather continued to visit A.B. at school even after

      Mother told him not to do so.


[8]   Grandfather disliked Ortega, and the two men engaged in a physical fight at

      A.B.’s birthday party at Mother and Ortega’s house on June 8, 2015. The fight

      led to an investigation by the Allen County Department of Child Services

      (“DCS”), which concluded that Mother’s home was safe and proper and the

      allegation of neglect was unsubstantiated. On September 23, 2015,

      Grandparents contacted DCS regarding an alleged bruise on A.B.’s buttock.

      DCS investigated that same day and found no cause to initiate an action

      concerning abuse or neglect by Mother or Ortega. However, Grandfather

      contacted DCS again on September 25 and reported that he felt A.B. was

      unsafe around Ortega. Grandfather admitted to DCS that Grandfather visited

      A.B. at her school without Mother’s permission. On September 29,

      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 4 of 15
       Grandfather again reported to DCS that he had visited A.B. at her school

       without Mother’s consent because Mother had told Grandfather she was going

       to move A.B. to another school if Grandfather kept visiting A.B. at school.

       Around the end of September, Mother ceased allowing Grandparents to visit

       with A.B. DCS completed its investigation in mid-October and concluded that

       the allegations of abuse and/or neglect of A.B. were unsubstantiated.


[9]    On October 13, 2015, Grandparents filed a motion to intervene in the paternity

       action involving A.B. and an emergency petition to modify custody of A.B.

       The trial court granted the motion to intervene but found no emergency relating

       to custody. Grandparents then filed a petition for grandparent visitation,

       seeking a visitation order as to A.B. in the alternative to a modified custody

       order. The trial court held a four-day hearing on the Grandparents’ petitions

       and, on November 14, 2016, it denied those petitions. The magistrate judge

       issued detailed findings and recommendations, which the judge approved. In

       addition to denying Grandparents’ petitions, the trial court also ordered

       Grandparents to pay Mother’s attorney’s fees. This appeal ensued.


                                       Discussion and Decision
                                   Issue One: Modification of Custody

[10]   Grandparents appeal the trial court’s findings denying their petition to modify

       custody of A.B. from her natural mother to them.

               A party challenging a trial court’s findings in this regard will not
               succeed unless the order is clearly erroneous “and due regard
               shall be given to the opportunity of the trial court to judge the
       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 5 of 15
               credibility of the witnesses.” Ind. Trial Rule 52. A judgment is
               clearly erroneous when it relies on an incorrect legal standard.
               Shell Oil Co. v. Meyer, 705 N.E.2d 962, 972 (Ind. 1998). “We
               disturb the judgment only where there is no evidence supporting
               the findings or the findings fail to support the judgment.” Yoon v.
               Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). We do not reweigh the
               evidence; rather we consider the evidence most favorable to the
               judgment with all reasonable inferences drawn in favor of the
               judgment. Id.


       T.H. v. R.J., 23 N.E.3d 776, 784 (Ind. Ct. App. 2014), trans. denied.


[11]   As the trial court correctly noted, we presume that a parent, rather than a

       nonparent, should have custody of his or her child. See, e.g., Francis v. Francis,

       759 N.E.2d 1106, 1113 (Ind. Ct. App. 2001), trans. denied. This presumption is

       consistent with a parent’s constitutionally protected fundamental right to raise

       his or her children. Troxel v. Granville, 530 U.S. 57, 73 (2000). The nonparent

       has the burden of overcoming that presumption by clear and convincing

       evidence of “a parent’s present unfitness, or past abandonment of the child such

       that the affections of the child and third party have become so interwoven that

       to sever them would seriously mar and endanger the future happiness of the

       child.” Froelich v. Clark (In re L.L.), 745 N.E.2d 222, 230-31 (Ind. Ct. App.

       2001), trans. denied. A general finding that it would be in the child’s “best

       interests” to be placed with a nonparent is not sufficient to rebut the

       presumption. Id. at 231. Rather, only after the nonparent rebuts the

       presumption in the parent’s favor by clear and convincing evidence will the

       court move on to an analysis of whether a modification of custody would be in


       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 6 of 15
       the child’s best interests and a consideration of the Grandparent’s status as de

       facto custodians,2 if applicable. T.H., 23 N.E.3d at 786.


[12]   Here, Grandparents failed to rebut the presumption that Mother’s custody of

       A.B. is in the child’s best interests. The evidence supported the trial court’s

       findings that Mother is a fit parent. The evidence established that A.B. has a

       good relationship with Mother, Ortega, and her siblings and step-siblings.

       Mother and her husband have a safe and appropriate home for A.B., and

       Grandparents failed to show otherwise. In fact, despite Grandparents’ repeated

       complaints to DCS and DCS’s related investigations, DCS found each time that

       Mother and her home were appropriate.


[13]   Grandparents also failed to prove by clear and convincing evidence that Mother

       had abandoned A.B. or acquiesced to Grandparents’ custody of A.B. such that

       A.B.’s and Grandparents’ affections had “become so interwoven that to sever

       them would seriously mar and endanger” A.B.’s future happiness. In re L.L.,

       745 N.E.2d at 231. While it was undisputed that A.B. spent a significant

       amount of time with Grandparents from June 2012 to September 2015, the trial

       court found that the reason for that was Mother’s work schedule. Specifically,

       the evidence established that Grandparents provided child care to A.B. while

       Mother worked, often late at night. The trial court found that it would have

       been unreasonable for Mother to retrieve A.B. from Grandparents’ home after



       2
         Grandparents alleged they were the de facto custodians of A.B. pursuant to Indiana Code Sections 31-14-
       13-2.5(b) and 31-17-2-8.5(b).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017          Page 7 of 15
       she worked late at night, rather than allowing A.B. to spend the night with

       Grandparents. Moreover, the evidence established that “Grandparents were

       willing and able to watch [A.B.] while Mother worked, so the arrangement

       benefited Mother financially by not having to hire daycare, plus it allowed her

       to earn an income which permitted her to rent her own apartment for a period

       of time, and it benefited [G]randparents because they were willing, able and

       content to have [A.B.] in their care.” Appellant’s App. at 20. Thus, the trial

       court found that Mother’s acquiescence to A.B. spending so much time with

       Grandparents was for the mutual convenience of Mother and Grandparents.

       Id. at 17. And the trial court was “convinced that Mother [was] truthful” when

       she testified that “it was never her intent to allow [G]randparents to have

       custody of [A.B.].” Id. at 20.


[14]   The trial court did not commit clear error when it denied the petition to modify

       custody because Grandparents had not overcome by clear and convincing

       evidence the presumption “that [A.B.’s] best interests [were] best served by

       placement with . . . Mother.” Id. at 17. Grandparents’ contentions to the

       contrary are simply requests that we reweigh the evidence, which we will not

       do. Further, because Grandparents failed to overcome the presumption in

       Mother’s favor, we need not address A.B.’s best interests any further, nor do we

       address the de facto custodian statutory factors. T.H., 23 N.E.3d at 786.


                                   Issue Two: Grandparent Visitation

[15]   In the alternative to custody, Grandparents sought visitation pursuant to

       Indiana Code Sections 31-17-5-1 through 31-17-5-10, the Grandparent
       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 8 of 15
       Visitation Act, which authorizes grandparent visitation when a court finds such

       to be in the best interests of the child. The trial court supported its order

       denying grandparent visitation with specific findings of fact and conclusions

       thereon. Therefore, as with the custody order, we apply our well-established

       two-tiered Indiana Rule 52 standard of review:


               [F]irst, we consider whether the evidence supports the trial
               court’s findings; second, we determine whether the findings
               support the judgment. We 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. We will find clear error if there is no evidence
               supporting the findings or the findings fail to support the
               judgment, or if the trial court applies the wrong legal standard to
               properly found facts.


       F.M. v. K.F. (In re K.M.), 42 N.E.3d 572, 576 (Ind. Ct. App. 2015) (citations and

       quotations omitted).


[16]   In proceeding under the Grandparent Visitation Act, the trial court must

       address the following four factors:

               (1) a presumption that a fit parent’s decision about grandparent
               visitation is in the child’s best interests (thus placing the burden
               of proof on the petitioning grandparents);


               (2) the “special weight” that must therefore be given to a fit
               parent’s decision regarding nonparental visitation (thus
               establishing a heightened standard of proof by which a
               grandparent must rebut the presumption);



       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 9 of 15
                (3) “some weight” given to whether a parent has agreed to some
                visitation or denied it entirely (since a denial means the very
                existence of a child-grandparent relationship is at stake, while the
                question otherwise is merely how much visitation is appropriate);
                and


                (4) whether the petitioning grandparent has established that
                visitation is in the child’s best interests.


       K.J.R. v. M.A.B. (In re M.L.B.), 983 N.E.2d 583, 586 (Ind. 2013) (quotation and

       citation omitted).


[17]   Here, Grandparents contend that the trial court placed too much emphasis on

       the discord between Grandparents and Mother and failed to properly consider

       that Mother had “completely denied” them visitation since approximately

       September 2015.3 Appellant’s Br. at 23. We disagree. Conflict between the

       parent and nonparent is an appropriate consideration when determining

       whether grandparent visitation is in a child’s best interests. See e.g., Daugherty v.

       Ritter, 646 N.E.2d 66, 68 (Ind. Ct. App. 1995) (“Because the court had before it

       evidence of extensive family conflict, it could have reasonably concluded that it

       was not in [child’s] best interest for the Daughertys to exercise visitation with

       her.”), adopted, 652 N.E.2d 502 (Ind. 1995).




       3
         Grandparents’ additional contention that the trial court “ignored” their strong bond with A.B. is without
       merit as the court repeatedly referred to that strong relationship throughout its order. See, e.g., Appellant’s
       App. at 17 (“No party disputes that a strong emotional bond formed between [A.B.] and grandparents during
       the first three years of the child’s life.”).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017            Page 10 of 15
[18]   Moreover, it is clear that the trial court did consider the amount of visitation

       Mother wished to provide the Grandparents. The trial court found that Mother

       is a fit parent and that she had discontinued grandparent visitation because

       Grandparents “may not be willing to comply with reasonable restrictions placed

       upon them by Mother with regard to any interaction they may have with

       [A.B.].” Appellant’s App. at 23. These findings are supported by the evidence.

       When Mother had granted Grandparents visitation in the past, Grandparents

       did not always allow Mother to take A.B. back from them when she wished to

       do so. Grandparents also refused to cease taking A.B. to their store as Mother

       had requested due to what she considered to be inappropriate items sold in the

       store. Grandparents enrolled A.B. in a school without Mother’s consent, and

       Grandfather continued to visit A.B. at school even after Mother told him not to

       do so. Grandfather fought with Ortega and made repeated complaints to DCS

       about Mother and/or Ortega, even after DCS investigated and found neglect

       allegations were unsubstantiated. Yet, despite Grandparents’ lack of

       cooperation with her, Mother testified that she was, in fact, willing to grant

       Grandparents some visitation with A.B. in the future, but only if they would

       “respect the decision that [she] ma[d]e and the guidelines that can be set down”

       by her. Tr. Vol. III at 177.


[19]   The above evidence supported the trial court’s findings that:


               [t]he wounds created by the decisions of the parties herein need
               time to mend; the Court’s forcing a grandparent visitation
               schedule upon the parties at this time will not improve their
               relationships, and may only further damage said relationships.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 11 of 15
               The Court finds that grandparents have not rebutted the
               presumption that the decision made by Mother to limit or deny
               their visitation with [A.B.] was made in [A.B.’s] best interest[s].
               Grandparents have not demonstrated that court-ordered
               visitation is in [A.B.’s] best interest. The Court finds that it is
               contrary to the best interests of [A.B.] to grant grandparent’s
               petition for grandparent visitation.


       Appellant’s App. at 23. The trial court did not commit clear error when it held

       that Grandparents failed to rebut the presumption that Mother’s visitation

       decision was in A.B.’s best interests and therefore denied their petition for

       visitation. Again, Grandparents’ contentions otherwise merely request that we

       reweigh the evidence, which we will not do.


                                        Issue Three: Attorney’s Fees

[20]   Grandparents challenge the trial court’s order requiring them to pay Mother’s

       attorney’s fees in the amount of $21,664.46. We review a decision to award

       attorney’s fees for an abuse of discretion. Montgomery v. Montgomery, 59 N.E.3d

       343, 354 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion occurs

       where the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances before the court. Allen v. Proksch, 832 N.E.2d 1080, 1102

       (Ind. Ct. App. 2005). Indiana follows the American Rule, which ordinarily

       requires each party to pay his or her own attorney’s fees. Id. “Generally,

       attorney’s fees are not recoverable from the opposing party as costs, damages,

       or otherwise, in the absence of an agreement between the parties, statutory

       authority, or [a] rule to the contrary.” Id.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 12 of 15
[21]   Initially, we note that there appears to be some confusion among the parties as

       to the statutory basis for the trial court’s attorney fee order. The trial court

       stated that it awarded Mother the attorney’s fees she incurred “in defending

       [the] action brought by [Grandparents].” Appellant’s App. at 23-24. The

       action the Grandparents brought was a petition to modify custody of A.B.

       pursuant to Indiana Code Section 31-17-2-1 through 31-17-2-26. Indiana Code

       Section 31-17-7-1 allows a trial court to award reasonable attorney’s fees to a

       party maintaining or defending a custody action. Thus, because the trial court

       did not award attorney fees under the General Recovery Rule, it was

       unnecessary for the court to find that Grandparents’ claim was frivolous,

       unreasonable, groundless, or litigated in bad faith. Indiana Code Section 34-52-

       1-1. Moreover, Mother is incorrect when she contends that custody actions

       under Article 17 are only commenced through divorce or child support matters.

       Appellee’s Br. at 16-17. Rather, Indiana Code Section 31-17-2-3(2) specifically

       states that a “child custody proceeding” may be commenced under Article 17

       by “a person other than a parent.” Therefore, fees can be awarded under

       Article 17 in nonparent custody actions such as this one.


[22]   Both parties in this case requested an award of their attorney fees. In order to

       award attorney fees pursuant to Indiana Code Section 31-17-1-1, “a trial court

       must consider the parties’ resources, their economic condition, their ability to

       engage in gainful employment and earn adequate income, and any other factors

       bearing on the reasonableness of the award.” Montgomery, 59 N.E.3d at 354.

       When a trial court “fail[s] to hold an evidentiary hearing in order to consider


       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017   Page 13 of 15
       these issues, [it] abuse[s] its discretion.” Allen, 832 N.E.2d at 1103, citing

       Bertholet v. Bertholet, 725 N.E.2d 487 (Ind. Ct. App. 2000) and Barnett v. Barnett,

       447 N.E.2d 1172 (Ind. Ct. App. 1984).


[23]   Here, the trial court did hold such an evidentiary hearing. During the course of

       the hearing, the parties presented evidence of their average annual earnings

       from employment, their income from other sources, their debts and the

       composition of their households. The evidence showed that Grandparents’

       average annual employment earnings were $60,000-$70,000, and Mother’s and

       Ortega’s combined annual employment earnings were also in that range.4 Tr.

       Vol. II at 123; Tr. Vol. III at 50-51. Grandmother and Mother also each had

       student loan debts of similar amounts. Tr. Vol. II at 208; Tr. Vol. III at 127.

       However, Grandfather had civil judgments in his favor totaling approximately

       $18,000. Tr. Vol. II at 126, 139. Moreover, unlike Grandparents, Mother and

       Ortega had children in their household for whom they were financially

       responsible. Tr. Vol. III at 49-50, 152-53. Given the evidence of the parties’

       respective economic circumstances, the trial court did not abuse its discretion

       when it ordered Grandparents to pay Mother’s attorney fees incurred in

       defending against their petition to modify custody.




       4
         We disregard Mother’s assertion that it is “inappropriate” to consider the income of Mother’s husband,
       with whom she lives, because he “is not a party to this action,” Appellee’s Br. at 16, since she cites no
       supporting authority. Ind. Appellate Rule 46(A)(8) and (B).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017          Page 14 of 15
                                                    Conclusion

[24]   The trial court did not commit clear error when it denied Grandparents’

       petitions to modify custody and for visitation, nor did it abuse its discretion

       when it awarded Mother her attorney’s fees.


[25]   Affirmed.


       Kirsch, J., and Brown, J., concur.




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