      MEMORANDUM DECISION
                                                                            Feb 06 2015, 9:58 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Bryan L. Ciyou                                            Angela B. Swenson
      Lori B. Schmeltzer                                        Swensen & Clark LLP
      Ciyou & Dixon, P.C.                                       Carmel, Indiana
      Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Tamara Krebs,                                            February 6, 2015

      Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                               49A02-1402-DR-66
              v.                                               Appeal from the Marion County
                                                               Superior Court
                                                               The Honorable Timothy W. Oakes,
      Michael C. Krebs,                                        Judge
      Appellee-Respondent                                      Cause No. 49D13-0708-DR-35061




      Vaidik, Chief Judge.



                                            Case Summary
[1]   Tamara Krebs (“Mother”) appeals from the trial court’s order granting Michael

      C. Krebs (“Father”) primary physical custody of the parties’ two children.

      Mother argues that the trial court abused its discretion in finding a substantial


      Court of Appeals of Indiana | Memorandum Decision 49A02-1402-DR-66 | February 6, 2015        Page 1 of 9
      change in circumstances warranting a modification. Because we find no abuse

      of discretion, we affirm.



                            Facts and Procedural History
[2]   Mother and Father were divorced in 2008. The parties have two children,

      H.K., born in August 2001, and I.K., born in September 2003. Mother moved

      to Michigan shortly after the parties divorced. Although Mother and Father

      have shared legal and physical custody since the divorce, the children have

      lived primarily in Michigan with Mother since 2008. Both parties have

      remarried.


[3]   Father filed a petition to modify custody in April 2013. His petition alleged

      that a custody modification was necessary for a number of reasons, including

      domestic violence that had occurred between Mother and the children’s

      stepfather (“Stepfather”) and Stepfather’s violence toward I.K. See Appellant’s

      App. p. 90-93. The court held a hearing on Father’s petition in January 2014.


[4]   Father explained his concerns more thoroughly at the hearing. He testified that

      Mother and Stepfather had a volatile relationship and described repeated

      incidents of domestic violence dating back to 2008. See Tr. p. 14-17. Father

      also expressed concern about Stepfather’s treatment of the children—Father

      testified that Stepfather called the children disparaging names and had been

      violent toward I.K. Id. at 17 (“[I.K.] was hit in the back of the head by

      Stepfather.”), 18-19 (describing I.K. being hit on the leg with a twisted towel),


      Court of Appeals of Indiana | Memorandum Decision 49A02-1402-DR-66 | February 6, 2015   Page 2 of 9
      34 (testifying that Stepfather called H.K. a b**** and I.K. a mother******).

      Stepfather had also threatened to kill the children’s friends and family. Id. at

      33. Father believed that Stepfather’s behavior was negatively affecting I.K.’s

      mental health and described an incident in 2013 when I.K. overdosed on his

      ADHD medication. Id. at 21-22 (“He took an overdose of medication so he

      could be good.”). Father also testified that six months before the hearing, he

      took I.K. to the hospital after I.K. told him that he wanted to kill himself.1 Id.

      at 35.


[5]   Preeti Gupta, the guardian ad litem (GAL) assigned to the case, testified that

      her primary concerns were the domestic violence between Mother and

      Stepfather and I.K.’s mental health, and she cited eight police reports indicating

      domestic violence between Mother and Stepfather and four reports from child-

      protective services.2 Id. at 76. GAL Gupta said that she spoke with Mother and

      that Mother was in denial about the domestic violence. Id. at 64-65. She

      testified that I.K. needed mental-health treatment and she worried that “it could

      get worse” if the children remained in the care of Mother and Stepfather. Id. at

      62. GAL Gupta recommended that Father have custody of the children. Id. at

      61-62.




      1
       The record suggests that I.K. actually attempted suicide, but no further information is given. See Tr. p. 35
      (Counsel: “But there was a suicide?” Father: “Attempt, correct.”), 99 (Counsel: “You also know [that
      Father] took [I.K.] to Riley for attempted suicide?” Mother: “Yes.”).

      2
        It appears that some of these reports were made in response to calls Father made to child-protective
      services.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1402-DR-66 | February 6, 2015               Page 3 of 9
[6]   Mother opposed the custody modification. She testified that H.K. was

      excelling in school and was very involved in extracurricular activities in

      Michigan. Id. at 85, 87. She admitted that I.K. was struggling, but she said that

      his grades were improving and he, like H.K., was involved in extracurricular

      activities. Id. at 84, 87. Mother admitted that domestic violence had occurred

      but testified that she and Stepfather had participated in therapy and had not

      been physically violent with each other since 2012. Id. at 85-89, 101-02. She

      denied Father’s claims that Stepfather had threatened the children and said that

      Stepfather had not been abusive toward the children “in two years.” See id. at

      90, 100.


[7]   Stepfather also testified. He stated that the incidents with Mother involved only

      “argu[ing] and yell[ing].” Id. at 104. He also denied being violent with I.K.

      and said that he was only “jok[ing] around” with I.K. Id. at 106. He testified

      that he could not recall ever threatening the children. Id.


[8]   At the end of the hearing, the trial court granted Father’s request to modify

      custody:

              [A]fter hearing the evidence, the Court decides that there is a
              continuing state of change in circumstances and that it’s in the best
              [interests] of the children that they be switched over with physical
              custody to [] [F]ather. Joint legal custody will be with both parents;
              physical custody with [] [F]ather.


      Id. at 114-15.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1402-DR-66 | February 6, 2015   Page 4 of 9
[9]    The court later entered an order formalizing the custody modification, stating in

       relevant part:

                The Court finds that there has been a continuing and substantial
                change of circumstances to modify custody of the children in this
                matter and that it is in the children’s best interests for a modification of
                custody.


                The parties are granted joint legal custody of the children.


                [Father] is granted physical custody of the children. The Court finds
                that it is in the best interest of the children for this modification of
                custody.


       Appellant’s App. p. 28-29 (formatting altered).


[10]   Mother was granted parenting time according to the Indiana Parenting Time

       Guidelines.


[11]   Mother now appeals.3



                                    Discussion and Decision
[12]   Mother argues that the trial court erred in finding a substantial change in

       circumstances warranting a custody modification.




       3
         Before proceeding with this appeal, Mother filed a motion to correct error that was unrelated to the issue of
       custody. The trial court granted Mother’s motion to correct error. Mother also filed an emergency motion to
       stay the custody-modification order in the Court of Appeals. The motion to stay was denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1402-DR-66 | February 6, 2015              Page 5 of 9
[13]   We give wide latitude to our trial courts in family-law matters, and we review a

       trial court’s custody determination for an abuse of discretion. Julie C. v. Andrew

       C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010). We neither reweigh the

       evidence nor assess witness credibility. Id. Rather, we consider only the

       evidence and inferences most favorable to the trial court’s judgment. Id. The

       party seeking to modify custody has the burden of demonstrating that the

       existing custody arrangement should be altered. Id. In order to reverse a

       custody modification, the evidence must positively require reversal, even if the

       evidence might have supported another conclusion. See Best v. Best, 941 N.E.2d

       499, 503 (Ind. 2011).


[14]   Our legislature has defined the circumstances under which a custody order may

       be modified, providing in relevant part:

               (a) The 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 (1) or more of the factors
                        that the court may consider under section 8 and, if applicable,
                        section 8.5 of this chapter.
               (b) In making its determination, the court shall consider the factors
               listed under section 8 of this chapter.


       Ind. Code § 31-17-2-21.


[15]   Section 31-17-2-21 requires a trial court to “consider the factors listed under

       section 8 of this chapter,” but the court is not, absent a request by a party,

       required to make special findings regarding the substantial changes in the

       parties’ circumstances. In re Paternity of J.T., 988 N.E.2d 398, 400 (Ind. Ct.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1402-DR-66 | February 6, 2015   Page 6 of 9
       App. 2013) (citation omitted). Neither party here requested findings and

       conclusions from the trial court, but the trial court entered some findings sua

       sponte. Such findings control only the issues they cover, and we apply

       a general-judgment standard to any issue on which the court made no

       findings. Rea v. Shroyer, 797 N.E.2d 1178, 1181 (Ind. Ct. App. 2003). A

       general judgment entered with findings may be affirmed based on any legal

       theory supported by the evidence, and we presume the trial court followed the

       law. Id.


[16]   The factors the court must consider under Section 31-17-2-8 include:

               (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.
               (7) Evidence of a pattern of domestic or family violence by either
               parent.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1402-DR-66 | February 6, 2015   Page 7 of 9
               (8) Evidence that the child has been cared for by a de facto custodian,
               and if the evidence is sufficient, the court shall consider the factors
               described in section 8.5(b) of this chapter.


[17]   Mother argues that the trial court erred in finding a substantial change in

       circumstances warranting a custody modification. We disagree.


[18]   The record supports the trial court’s decision to modify custody. Father and

       GAL Gupta testified about Mother and Stepfather’s volatile relationship, and

       GAL Gupta cited eight police reports indicating domestic violence between the

       pair. Although Mother and Stepfather testified that they participated in therapy

       and that their relationship had not been physically violent since 2012, the trial

       court was entitled to consider Mother and Stepfather’s significant history of

       discord. Moreover, GAL Gupta testified that Mother was in denial about what

       had occurred. There was also evidence that Stepfather called the children

       degrading names, was violent toward I.K., and had threatened to kill the

       children’s friends and family. Father and GAL Gupta believed that Stepfather’s

       behavior had a particularly negative impact on the parties’ youngest child, ten-

       year-old I.K., who spoke to Father about committing suicide just six months

       before the custody-modification hearing. GAL Gupta testified that I.K. needed

       mental-health treatment and she worried that “it could get worse” if the

       children remained in the care of Mother and Stepfather. She recommended

       that Father have custody of the children.


[19]   This evidence supports the trial court’s conclusion that there has been a

       substantial change in circumstances warranting a custody modification,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1402-DR-66 | February 6, 2015   Page 8 of 9
       particularly as it relates to a pattern of domestic violence between Mother and

       Stepfather, the children’s adjustment to their home in Michigan, and I.K.’s

       mental health. Likewise, this evidence supports the conclusion that a custody

       modification is in the children’s best interests.


[20]   On appeal, Mother argues that Stepfather has never been physically violent

       toward I.K. and has never mistreated H.K. in any way. She describes the

       children as happy, carefree, and well-adjusted to their Michigan home, and she

       argues that modifying custody would disrupt their lives. Notably, she does not

       address certain important issues, such as I.K.’s talk of suicide. Mother’s view of

       the evidence directly contradicts Father’s and GAL Gupta’s, and accepting it

       would require us to reweigh the evidence and assess witness credibility, which

       we will not do.


[21]   We conclude that the trial court did not abuse its discretion in granting Father’s

       request to modify custody.


       Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1402-DR-66 | February 6, 2015   Page 9 of 9
