MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 28 2018, 11:06 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                                   ATTORNEY FOR APPELLEE
Nicholas F. Wallace                                      Patricia L. Martin
Leonard, Hammond, Thoma & Terrill                        Martin Law Offices, PC
Fort Wayne, Indiana                                      Angola, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Marriage of Albertson:                            September 28, 2018
                                                         Court of Appeals Case No.
Amanda Albertson,                                        18A-DR-441
Appellant-Petitioner,                                    Appeal from the Dekalb Circuit
                                                         Court
        v.                                               The Honorable Kurt Bentley
                                                         Grimm, Judge
William Albertson,                                       Trial Court Cause No.
Appellee-Respondent.                                     17C01-0903-DR-65




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018                Page 1 of 13
                                          Case Summary
[1]   Amanda Albertson (“Mother”) and William Albertson (“Father”) are the

      parents of J.A. and L.A. (collectively, the “Children”). Mother was initially

      awarded custody of the Children. However, after Mother made a series of

      unsubstantiated allegations of physical and sexual abuse against Father, Father

      petitioned for and was granted custody of the Children. Mother was also

      ordered to pay $13,125.00 of Father’s attorney’s fees. On appeal, Mother

      contends that the trial court abused its discretion in modifying the prior custody

      order, violated her procedural due process rights by considering certain

      evidence, and abused its discretion by ordering her to pay a portion of Father’s

      attorney’s fees. We affirm.



                            Facts and Procedural History
[2]   Mother and Father were married and are the parents of the Children. Their

      divorce was finalized on February 18, 2011. Mother was granted custody of the

      Children on February 12, 2012. After receiving custody, Mother and the

      Children lived with her parents.


[3]   On October 14, 2016, Father was granted expanded, unsupervised parenting

      time with the Children. Shortly after Father began exercising his unsupervised

      parenting time, Mother began making allegations of physical and sexual abuse

      of the Children by Father. All of the allegations were investigated and found to

      be unsubstantiated.


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 2 of 13
[4]   In May of 2017, Mother and Father each filed petitions seeking to modify the

      existing custody and parenting time orders. The trial court conducted a two-

      day hearing on the parties’ petitions on December 14–15, 2017. At the time of

      the hearing, J.A. and L.A. were eight and six years old, respectively.


[5]   On February 14, 2018, the trial court issued an order modifying custody and

      awarding custody of the Children to Father. In its order, the trial court found

      that (1) Father “is a fit father”; (2) Mother “is currently an unfit mother and

      that she is consciously inflicting on her two boys what is in essence emotional

      abuse to suit her own goals and objectives”; (3) “modification of custody is in

      the best interests of [the Children] and … that if such modification does not

      swiftly transpire irreparable damage will occur, if it has not already, to these

      two young boys”; and (4) “parenting time with [Mother], if not carefully

      supervised and controlled, would significantly impair the emotional

      development” of the Children. Appellant’s App. Vol. II, p. 33.



                                 Discussion and Decision
[6]   On appeal, Mother contends that the trial court abused its discretion in granting

      Father’s request for a modification of custody and in granting custody to

      Father. In making this contention, Mother argues that the evidence does not

      support the trial court’s determination that a change of custody was in the

      Children’s best interests. Mother also contends that the trial court violated her

      procedural due process rights by considering certain evidence. Lastly, Mother



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 3 of 13
      contends that the trial court abused its discretion in ordering that she pay

      $13,125.00 of Father’s attorney’s fees.


                                     I. Modification Order
[7]   “We review custody modifications for abuse of discretion with a preference for

      granting latitude and deference to our trial judges in family law matters.” Kirk

      v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (internal quotation omitted). Where,

      as here, a trial court has entered findings of fact and conclusions thereon,


              Indiana’s appellate courts 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. Appellate judges are not to reweigh the evidence nor
              reassess witness credibility, and the evidence should be viewed
              most favorably to the judgment. Findings are clearly erroneous
              only when the record contains no facts to support them either
              directly or by inference. Appellate deference to the
              determinations of our trial court judges, especially in domestic
              relations matters, is warranted because of their unique, direct
              interactions with the parties face-to-face, often over an extended
              period of time. Thus enabled to assess credibility and character
              through both factual testimony and intuitive discernment, our
              trial judges are in a superior position to ascertain information and
              apply common sense, particularly in the determination of the best
              interests of the involved children.


      Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations and quotations omitted).

      “Therefore, on appeal it is not enough that the evidence might support some

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




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 4 of 13
      appellant before there is a basis for reversal.” Kirk, 770 N.E.2d at 307 (brackets

      and quotation omitted).


[8]   Indiana Code section 31-17-2-21(a) provides that a trial court may modify a

      child custody order if “(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 … of this chapter.” The factors listed in

      Indiana Code 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.
              (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.
              (9) A designation in a power of attorney of:
                     (A) the child’s parent; or
                     (B) a person found to be a de facto custodian of the
                     child.



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 5 of 13
[9]    The trial court found that the evidence presented “demonstrates numerous

       substantial changes in the factors identified in [Indiana Code section] 31-17-2-8

       as illustrated in the Court’s findings of fact and the evidence presented shows

       that a modification of custody in this case would be in the best interests of the

       children.” Appellant’s App. Vol. II, p. 36. While the trial court did not specify

       which factors had substantially changed, we have previously held it was not

       necessary for the trial court to do so. See Nienaber v. Marriage of Nienaber, 787

       N.E.2d 450, 456 (Ind. Ct. App. 2003) (noting that we had previously rejected

       the argument that the court must specifically identify which of the statutory

       factors had substantially changed). As such, we will affirm the trial court’s

       order modifying custody so long as the evidence supports the trial court’s

       conclusion.


[10]   The record reveals that Mother has engaged in a pattern of behavior seemingly

       aimed at controlling the proceedings in a manner intended to make any

       interaction between the Children and Father appear stressful and harmful to the

       Children. Court-Appointed Special Advocate (“CASA”) Lee Marki’s reports

       and testimony indicated that Mother would occasionally prod the Children to

       make statements about Father which appeared to be coached by Mother or

       maternal grandparents. Throughout CASA Marki’s participation in the case,

       Mother also displayed a reluctance to allow CASA Marki to speak to the

       Children without her present. In addition, the trial court found that Mother

       had “done little or nothing to assist” Father in rebuilding a relationship with the

       Children and had shown a knowing, willful, intentional, and contemptuous


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 6 of 13
       disregard for court orders regarding parenting time. Appellee’s App. Vol. II, p.

       17.


[11]   During the evidentiary hearing, the trial court heard significant testimony

       relating to Mother’s numerous allegations that Father had both physically and

       sexually abused the Children. Mother’s allegations were investigated by DCS

       “on several occasions and in all cases were deemed unsubstantiated.”

       Appellant’s App. Vol. II, p. 31. In addition, no action was taken after the

       allegations were investigated by the State Police and the Steuben County

       Sheriff’s Department. While one of Mother’s witnesses indicated that he

       believed the allegations simply because they were made, even this witness

       testified that he found no physical evidence of the claimed abuse. The trial

       court noted that CASA Marki was of the opinion “that the allegations of sexual

       abuse have been fabricated by [Mother] with the end goal of alienating Father

       from his boys and ultimately removing him altogether from his children’s lives”

       and “that Mother’s ongoing allegations of sexual abuse are having a damaging

       and traumatic effect upon the emotional development of the [Children.]”

       Appellant’s App. Vol. II, p. 31.


[12]   The trial court also heard evidence that maternal grandmother, with whom

       Mother and the Children lived, made negative comments to the Children about

       Father prior to their visitation with Father. During one visit, J.A. told Father

       that maternal grandmother had told him “that if someone was being mean to

       him he was supposed to kick them in the nuts” and that Father “was being

       mean.” Father’s Ex. 7, p. 13. During another visit, L.A. indicated that he

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 7 of 13
       wanted to go home and “didn’t want to see [his] dad anymore” before

       admitting that “that’s what my grandma told me to say.” Father’s Ex. 7, p. 16.

       During yet another visit, J.A. hit Father with a fist and stated that Father was

       being mean and maternal grandmother told him “that he should hit his dad

       because he was mean.” Father’s Ex. 7, p. 17. J.A. also said that he did not

       want to see Father and was going to run away from him “because Grandma

       said.” Father’s Ex. 7, p. 17. CASA Marki indicated that she believed “the

       negative and hurtful suggestions the [Children] state they have been given by

       [maternal] grandma … have them, especially [J.A.], extremely confused.”

       Father’s Ex. 7, p. 31.


[13]   The trial court further noted that CASA Marki recommended that “custody be

       transferred to [Father] to prevent further emotional damage to the children as

       well as their relationship with their Father.” Appellant’s App. Vol. II, p. 31.

       CASA Marki also recommended that the trial court consider a mental health

       evaluation for Mother. The trial court found CASA Marki’s opinions to be

       persuasive and correct when considered in light of the evidence coupled with

       “the Court’s own observations as to presentment and demeanor of the

       witnesses.” Appellant’s App. Vol. II, p. 32.


[14]   Based on the above-discussed evidence, the trial court found that the allegations

       of sexual and physical abuse by Father were false and were the result of

       fabrication by Mother. The trial court further found that in fabricating

       allegations of sexual abuse of the Children by Father, Mother “has engaged in a

       consistent pattern of conduct designed to alienate [Father] from [the Children],

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 8 of 13
       and the Court further finds that the conduct of [Mother] is currently

       significantly impairing the emotional development of [the Children] and will

       continue to do so if there is not intervention to accomplish cessation of the

       conduct.” Appellant’s App. Vol. II, p. 32. For these reasons, the trial court

       concluded that a change in custody was in the Children’s best interests. The

       trial court acknowledged that the change in custody would likely have a

       temporary negative affect on the Children in that they would have to change

       schools, but determined that the short-term negative impact was outweighed by

       the Children’s other interests.


[15]   Upon review, we conclude that the trial court’s findings and conclusions are

       supported by the record. As such, the trial court did not abuse its discretion in

       granting Father’s request for a modification of custody or in awarding custody

       to Father.


                                  II. Procedural Due Process
[16]   Mother next contends that the trial court violated her procedural due process

       rights by considering reports filed by CASA Marki after the close of the

       evidence. Mother’s contention is perplexing because the trial court’s order

       explicitly stated that the trial court did not consider the reports in question in

       reaching its decision. Specifically, the trial court stated the following:


               The Court would note that subsequent to the close of the
               evidence the Court received additional Department of Child
               Services reports filed by CASA volunteer Lee Marki. These
               reports relate to numerous additional claims of sexual abuse

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 9 of 13
               being perpetrated by the father against his children. The reports
               indicate that all claims as they relate to the father were
               unsubstantiated and that the Department of Child Services did
               substantiate as against the mother Amanda Albertson for
               emotional abuse of her children. The reports indicate that the
               Department of Child Services has offered a plan of informal
               adjustment to the mother. These reports, while filed with the
               court, were not considered by the Court in reaching its decision
               as herein announced, and in fact this decision was already in
               rough draft form at the time the Court received these reports and
               the only impact upon this decision was the addition of this
               footnote and the dealing with the subsequent motions generated
               by this filing.


       Appellant’s App. Vol. II, p. 31. Later in its order, the trial court again

       reiterated that it “did not consider the CASA filing in question in rendering this

       decision.” Appellant’s App. Vol. II, p. 39. Given that the trial court’s explicit

       statements that it did not consider the reports in question, we conclude that

       Mother’s claim is without merit.


                                        III. Attorney’s Fees
[17]           In reviewing a trial court’s award of attorney’s fees, we apply an
               abuse of discretion standard. A trial court has wide discretion in
               awarding attorney’s fees. We will reverse such an award only if
               the trial court’s award is clearly against the logic and effect of the
               facts and circumstances before the court. The trial court may
               look at the responsibility of the parties in incurring the attorney’s
               fees. Furthermore, the trial judge possesses personal expertise
               that he or she may use when determining reasonable attorney’s
               fees.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 10 of 13
       Mason v. Mason, 775 N.E.2d 706, 711 (Ind. Ct. App. 2002) (internal citations

       omitted).


[18]   In awarding attorney’s fees, the trial court found as follows:


               Because the Court has found that the issues presented arose due
               to the deliberate fabrication of false accusations against [Father]
               by [Mother], designed to thwart and prevent [Father]’s parenting
               time with his children, the Court finds that an award of
               attorney’s fees is appropriate in this case. [Mother] shall pay to
               [Father] the amount of $13,125.00 towards [Father]’s attorney’s
               fees in this matter. This attorney fee amount shall be a judgment
               as against [Mother] in favor of [Father].


       Appellant’s App. Vol. II, p. 38.


[19]   The parties filed competing requests for attorney’s fees. Father’s request

       indicated that he owed $17,259.88 in fees. Mother’s request indicated that she

       owed $39,549.60 in fees. Mother challenges the trial court’s award of attorney’s

       fees to Father, claiming that the trial court failed to hold a hearing on her ability

       to pay.


[20]   The Indiana Supreme Court has noted that in determining an award of

       attorney’s fees, the trial court shall consider the “resources of the parties, their

       respective economic circumstances, and their ability to engage in gainful

       employment and earn adequate income.” Masters v. Masters, 43 N.E.3d 570,

       576 n.8 (Ind. 2015). A trial court may also consider factors bearing on

       reasonableness including, for example, “which party initiated the action,

       whether fees and expenses were incurred due to a party’s misconduct, and the

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 11 of 13
       ability of the party to pay.” Id. at n.8. Thus, contrary to Mother’s claim, the

       trial court could, but was not required to, consider her ability to pay when

       entering the award of attorney’s fees for Father. See id. at n.8 (providing that

       the trial court “may” consider the ability of a party to pay).


[21]   The record reveals that the trial court considered the parties’ economic

       circumstances and employment potential. During the hearing, the parties

       presented evidence relating to their respective employment and income. The

       trial court also considered that most, if not all, of Father’s fees were incurred

       because of Mother’s behavior. Again, the trial court noted during the

       proceedings that Mother demonstrated a knowing, willful, intentional, and

       contemptuous disregard for court orders. The trial court also noted Mother’s

       decision to levy numerous false accusations of physical and sexual abuse

       against Father, all of which had to be investigated and defended by Father.

       Mother’s decision to make these repeated false accusations amounted to

       misconduct and necessitated further proceedings. As such, we cannot say that

       the trial court abused its discretion in ordering that Mother pay $13,125.00 of

       Father’s attorney’s fees.



                                               Conclusion
[22]   In sum, the trial court did not abuse its discretion in modifying the custody

       award to grant custody of the Children to Father or in ordering Mother to pay

       $13,125.00 of Father’s attorney’s fees. The trial court also did not violate



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 12 of 13
       Mother’s procedural due process rights as it explicitly stated that it did not

       consider the challenged evidence.


[23]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-441 | September 28, 2018   Page 13 of 13
