MEMORANDUM DECISION
                                                                         Apr 10 2015, 6:06 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.



APPELLANT PRO SE                                          ATTORNEY FOR APPELLEE
Moussa Dahab                                              Jody Dietsch, Esq.
Fort Wayne, Indiana                                       Dietsch Law, LLC
                                                          Fort Wayne, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Moussa Dahab,                                             April 10, 2015

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          02A03-1408-DR-282
        v.                                                Appeal from the Allen Superior
                                                          Court; The Honorable Charles F.
                                                          Pratt, Judge;
Massadjitte Abdelkerim,                                   02D07-1002-DR-103
Appellee-Petitioner.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1408-DR-282 | April 10, 2015            Page 1 of 7
[1]   Moussa Dahab (“Father”) appeals the denial of his motion for a change of

      custody.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Father and Massadjitte Abdelkerim (“Mother”) were married on June 5, 1988.

      Three children were born of the marriage: Ib.D., R.D., and Is.D. On July 27,

      2012, the parties were divorced. Father was granted sole legal and physical

      custody of Ib.D., and Mother was granted sole legal and physical custody of the

      other two children.


[4]   After the divorce, Father moved to Philadelphia with Ib.D., while Mother and

      the other children stayed in Indiana. Mother had a subsequent child, who has a

      different father than her other children.


[5]   Father filed for modification of custody of Is.D. and R.D. The trial court

      denied the request for modification and issued Findings and Conclusions

      Regarding Custody and Parenting Time stating:

              7.    The [Father] also asserts that the [sic] neither child is doing well
              academically and behaviorally.
              8.     In support of his contentions with regard to behavior and
              academic concerns, [Father] submitted his Exhibits (A) and (B).
              [Father]’s Exhibit (A) is a student history report for [Is.D.] for school
              years 2007-08 through 2011-12. [Father’s] Exhibit (B) is a student
              history report [for] [R.D.] for academic years 2008-09 through 2011-
              12.



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        9.     The Court may only consider evidence with regard to
        circumstances since the last custody order (I.C. 31-17-2-21).
        Accordingly, the court will only consider academic year 2011-12 and
        the current reports.
        10.    While in third grade (2011-12) the school records reflect that
        [R.D.] had school infractions for violating bus rules, petty theft, failure
        to comply with instructions and false information (See Respondent’s
        Exhibit B). In contrast, [Mother]’s Exhibit (5), a Student Achievement
        Report for school year 2013-14, reflects marked improvement in the
        category of “Social/Behavior Development”. She received high marks
        in each subcategory. Except for mathematics, [R.D.]’s grades are A’s
        and B’s.
        11.     During school year 2011-12, [Is.D.] had school infractions for
        being tardy and for unexcused absences. He also had behaviors in
        2011 for hitting, biting, and inappropriate gestures. In April and
        March 2012 he had infractions for inappropriate sexual behavior and
        violation of bus rules. His academic scores were generally average
        except for Multidisciplinary studies and Language Arts for which he
        receive [sic] unsatisfactory marks.
        12.    The [Mother] caused [Is.D] to be seen by Dr. Atiya Khan of the
        Fort Wayne Neurological Center. He was diagnosed Hydrocephalus,
        ADHD and a seizure disorder. He was thereafter placed on
        medications (Petitioner’s Exhibit 2). At a school conference in April
        2014 attended by the Mother, the child was placed under an Individual
        Education Plan (Petitioner’s Exhibit 1). [Is.D.]’s Student
        Achievement Report for the 2013-14 school year reflects significant
        improvement. On it his teacher wrote “[Is.D] has been doing better
        than in the last few weeks.”
                                              *****
        21.    As noted in the findings herein above, the children at one point
        struggled both behaviorally and academically. Both children are now
        demonstrating improvement. Thus, this Court cannot find and
        conclude that there has been a substantial and continuing change of
        circumstances with regard to the children’s adjustment to home or
        school.
                                              *****



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              . . . Accordingly, this Court cannot conclude from the evidence that a
              change of custody is necessary for the children’s welfare.
      (App. at 26-29) (emphasis in original).


                                     Discussion and Decision
[6]   We first note Father proceeds pro se. A litigant who proceeds pro se is held to

      the same rules of procedure that trained counsel is bound to follow. Smith v.

      Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed.

      One risk a litigant takes when he proceeds pro se is that he will not know how to

      accomplish all the things an attorney would know how to accomplish. Id.

      When a party elects to represent himself, there is no reason for us to indulge in

      any benevolent presumption on his behalf or to waive any rule for the orderly

      and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind.

      Ct. App. 2006).


[7]   Father asserts the trial court abused its discretion when denying his request for

      modification.

              We review custody modifications for abuse of discretion, with a
              preference for granting latitude and deference to our trial judges in
              family law matters. In the initial custody determination, both parents
              are presumed equally entitled to custody, but a petitioner seeking
              subsequent modification bears the burden of demonstrating that the
              existing custody should be altered. When reviewing a trial court’s
              decision modifying custody, we may not reweigh the evidence or judge
              the credibility of the witnesses. Instead, we consider only the evidence
              most favorable to the judgment and any reasonable inferences
              therefrom.




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      Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010) (citations

      omitted).

[8]   The trial court entered findings of fact and conclusions of law when denying

      modification.

              The conclusions of law are reviewed de novo. But pursuant to Trial
              Rule 52(A), 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. Factual findings
              are only clearly erroneous where there is no support for them in the
              record, either directly or by inference; a judgment is only clearly
              erroneous when it applies an improper legal standard to proper facts.
              In either case, we must be left with the firm conviction that a mistake
              has been made.
      Johnson v. Johnson, 999 N.E.2d 56, 59 (Ind. 2013) (internal citations and

      quotations omitted).


[9]   To modify a child custody order, the court must find modification is in the best

      interest of the child and 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.” Ind. Code § 31-17-2-21. The factors to be considered by

      the trial court are:

              (1) The age and sex of the child.
              (2) The wishes of the child’s parent or parents.
              (3) The wishes of the child, with more consideration given to the
              child’s wishes if the child is at least fourteen (14) years of age.
              (4) The interaction and interrelationship of the child with:
                       (A) the child’s parent or parents;
                       (B) the child’s sibling; and


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                        (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.
       Ind. Code § 31-17-2-8.


[10]   Father asserts that due to his educational level and language expertise, he is a

       better choice for custody of Is.D. and R.D. Father presented school records

       from the 2011-12 school year wherein Is.D. had four behavioral infractions and

       R.D. had five behavioral infractions. Father testified as to his educational

       qualifications and other relevant training he has attended. However, as noted

       by Mother, these factors were in place before the original custody order. “The

       court shall not hear evidence on a matter occurring before the last custody

       proceeding between the parties unless the matter relates to a change in the

       factors relating to the best interests of the child as described in section 8 . . . .”

       Ind. Code § 31-17-2-21. Thus, the court made no error in determining the

       evidence Father presented could not have justified a modification of custody.

       See Gerber v. Gerber, 476 N.E.2d 531, 532 (Ind. Ct. App. 1985) (“modification of




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       custody is warranted only when the moving party shows a decisive change in

       conditions in the custodial home”).


[11]   Mother submitted reports from the 2013-2014 school year showing Is.D. was

       involved in an Individual Education Program (IEP) and had passing grades.

       His Student Achievement Report also contains a handwritten notation that he

       had been doing better in the last few weeks.1 R.D.’s Student Achievement

       Report for 2014 showed all passing grades.2 As the evidence favorable to the

       judgment confirms the court’s finding the “children are now demonstrating

       improvement,” (App. at 21), we find no abuse of discretion in the denial of

       Father’s petition for modification. See Miller v. Carpenter, 965 N.E.2d 104, 110

       (Ind. Ct. App. 2012) (finding no justification for modification when no

       substantial change exists).


                                                    Conclusion
[12]   As Father’s evidence did not demonstrate a substantial and continuing change

       warranting modification of custody, we affirm.


[13]   Affirmed.


       Robb, J., and Mathias, J., concur.




       1
         On appeal, Father questions the origin of this handwritten note but he did not object when it was entered
       into evidence. Therefore, this claim is waived. See Brown v. State, 783 N.E.2d 1121, 1125 (Ind. 2003) (failure
       to make a contemporaneous objection to admission of evidence waives claim on appeal).
       2
           Father now admits R.D. has improved since 2011. (Appellant’s Br. at 8.)


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