       MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                       FILED
      this Memorandum Decision shall not be                                   Apr 15 2019, 9:23 am
      regarded as precedent or cited before any
                                                                                   CLERK
      court except for the purpose of establishing                             Indiana Supreme Court
                                                                                  Court of Appeals
      the defense of res judicata, collateral                                       and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Erik H. Carter                                           William P. Means
      Carter Legal Services LLC                                Roberts Means, LLC
      Noblesville, Indiana                                     Carmel, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In re the Marriage of:                                   April 15, 2019

      Brian Crump,                                             Court of Appeals Case No.
                                                               18A-DR-1924
      Appellant-Respondent,
                                                               Appeal from the Hamilton
              v.                                               Superior Court
                                                               The Honorable David K. Najjar,
      Angela Grannan,                                          Judge
                                                               Trial Court Cause No.
      Appellee-Petitioner
                                                               29D01-1404-DR-3879



      Vaidik, Chief Judge.



                                          Case Summary
[1]   Brian Crump (“Father”) appeals the trial court’s order modifying physical

      custody of his two children. He also argues that the trial court erred by failing
      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019                   Page 1 of 15
      to impute income to Mother when determining the parties’ child-support

      obligations. We affirm.



                            Facts and Procedural History
[2]   Father and Angela Grannan (“Mother”) were divorced in Hamilton Superior

      Court in July 2014. They have two children: A.C., who was born in 2007, and

      M.C., who was born in 2010 (collectively “Children”). The parties reached an

      agreement on child custody and parenting time in which they would share legal

      and physical custody of Children. Father agreed to pay child support to Mother

      in the amount of $350.00 per week. This amount was a deviation from the

      child-support worksheet based on Father’s anticipated partial loss of his income

      and on the uncertainty of Mother’s income while she started her own

      environmental-consulting business. The parties also agreed to “divide equally

      the costs of all agreed upon extracurricular activities” for Children. Appellant’s

      App. Vol. II p. 33. Two months after the divorce was finalized, Mother

      married Chad Grannan (“Stepfather”).


[3]   In 2015, Mother filed a notice of intent to relocate to Florida, where she

      currently resides with Stepfather. Mother requested primary physical custody

      of Children when she relocated. Father objected and requested that he be given

      primary physical custody of Children. The trial court found that relocation to

      Florida was not in Children’s best interests and granted Father primary physical

      custody of Children “subject to Mother’s parenting time pursuant to the

      Indiana Parenting Time Guidelines when distance is a major factor.” Id. at 47.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 2 of 15
      Mother was also ordered to pay child support to Father in the amount of

      $283.00 per week. The parties continued to share legal custody and to divide

      equally the costs of Children’s extracurricular activities. After moving to

      Florida, Mother traveled to Indiana “[a]t least once a month” to exercise

      parenting time with Children in addition to her holiday and summer parenting

      time. Tr. Vol. II p. 51. Mother also Skyped with Children “[e]very day.

      Sometimes more than once a day.” Id. at 56.


[4]   On the evening of December 13, 2017, Mother received a Skype message from

      A.C. that contained a recording. When Mother played the recording, she heard

      Father “screaming” and seven-year-old M.C. “crying in the background.” Id. at

      58. As Mother continued to listen to the audio, she began “shaking

      uncontrollably” and crying. Id. Mother could not believe “what [she] was

      hearing and what was happening to [M.C.].” Id. at 59. Mother thought the

      recording was live, so she called Father’s phone to try to “interrupt the

      situation.” Id. at 58. She spoke with A.C. and decided to book a flight to

      Indiana.


[5]   Mother arrived in Indiana the following evening. The next day, she went to

      M.C.’s school and disclosed the recording. M.C.’s principal told Mother to

      report the recording to the police, which she did, and after playing the recording

      for Carmel Police Department officers, they contacted the Department of Child

      Services (DCS). DCS spoke with Children at school regarding an allegation

      that physical abuse could also be heard on the recording. The allegation of

      physical abuse was unsubstantiated, and DCS closed its investigation. See Ex. 1

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 3 of 15
      p. 40. After the school day ended, Mother arranged to have parenting time

      with Children over the weekend. On Monday, Mother returned Children to

      Father. When saying goodbye, Mother mentioned that she would see M.C. at

      basketball practice that evening. Father said that Mother “wouldn’t be seeing

      [Children] at basketball practice” and told M.C. that “he didn’t want Mommy

      at basketball practice.” Tr. Vol II pp. 62-63. Mother responded that she

      wanted to be there, and Father “immediately became irate and started

      screaming at [Mother] and slammed the door in [her] face.” Id. at 63. Father

      yelled that Mother does not “pay for [Children’s] extracurricular activities” so

      she “need[ed] to stay out of their li[ves].” Id. By that point, Children were

      crying and Mother “didn’t know what to do” and “was worried about [Father]

      taking his anger for [Mother] out on [Children],” so she called the police. Id. at

      63-64. The police came, spoke with everyone, and left once the situation had

      deescalated.


[6]   Mother returned to Florida, and in January 2018 she filed a petition to modify

      physical custody, legal custody, and child support. The trial court appointed

      Catherine Brownson as the guardian ad litem (GAL), and she evaluated

      Mother, Father, and Children. After the GAL completed her evaluations, she

      drafted a report recommending that physical custody be modified so that

      Children can live with Mother in Florida. See id. at 24-25. The GAL stated

      that she did not make this recommendation “lightly” because a change in

      physical custody would mean that Children “would need to relocate a distance

      from Father, a distance from friends, and from their current environment.” Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 4 of 15
      at 25. However, the GAL concluded that she “simply cannot in good

      conscience recommend [Children] remain in Father’s care and custody, as it is

      not in their best interests.” Ex. 1 p. 45.


[7]   A hearing on Mother’s petition was held in June 2018. The GAL testified and

      stated that she determined that, in addition to the December 13 incident, Father

      had engaged in other instances of yelling and cursing at Children—for not

      flushing the toilet or tying shoelaces properly. See id. at 20. The GAL also said

      that Children told her that they wanted to live with Mother. During the GAL’s

      testimony, Mother’s attorney played the recording of the December 13 incident

      for the trial court. On the recording, M.C. can be heard crying while Father

      yells, in relevant part:


              God! God d*mn it. I f*cking worked so f*cking hard on it and
              you just f*cking do that to it. Like a dumb a**. God d*mn it.
              F*ck. . . . What the f*ck were you f*cking thinking? God d*mn
              it, dude. I could -- you just f*cked up your f*cking grade. F*ck,
              you’re going to get a bad f*cking grade on there for f*cking doing
              that. F*cking dumb a**. God. I f*cking work my a** off so you
              can f*cking get a good grade on that and that’s what you f*cking
              do? You come in and write like f*cking shit like that? You
              deserve to get the f*cking grade that you get, you know that? I
              hope you get a f*cking bad grade on it. You know why? ‘Cause
              you only get what you deserve. You deserve a sh*t grade for that
              sh*t a** writing. You can f*cking do better than that. I know
              you can f*cking do better than that. You better f*cking do better
              than that for the rest of your life. Or I’m gonna take away your
              f*cking Play Station. I’m gonna take away all your f*cking toys.
              I’m gonna pull you out of basketball and sit you’re a** on the
              bench. Everything you like to do, I’m gonna f*cking take it away
              if you don’t start f*cking working harder in school. You got me?

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 5 of 15
              You f*cking better get me, because I am f*cking serious. Look at
              me. I’m really f*cking pissed off right now if you can’t tell that.
              I am really pissed off. I did all that f*cking work and you just
              come home and just do that like that. That is unacceptable.
              Unacceptable. You don’t do that sh*t in my house. You work
              f*cking hard in school.


      Tr. p. 23. When asked what she thought about the recording, the GAL said

      that it “is a reflection of what [Children] are experiencing on a regular basis

      with Father while in his care.” Id. at 24.


[8]   To rebut the GAL’s report, Father called three witnesses who testified that they

      had never seen Father get angry, upset, or frustrated with Children. See id. at

      140, 143, 147-48. Father also testified and stated that after the December 13

      recording ended, he apologized to M.C. On cross-examination, when asked if

      he believed that the recording constituted verbal abuse, Father responded:


              A        I was cursing at him.


              Q        I asked you does that not constitute verbal abuse to you?


              A        No.


                                                     *****


              Q        [W]hat to you constitutes verbal abuse if that does not?


              A        I would constitute verbal abuse as something being
                       repetitively, coming at somebody and berating them
                       repetitively. I would consider that verbal abuse.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 6 of 15
       Id. at 210-11. When asked about the incident when Mother said she was

       coming to M.C.’s basketball practice, Father responded that Mother had

       “provoked [him]” by “pushing [his] buttons” and that “it was an ongoing

       thing,” her “not assisting to pay for some activities, and [Mother] knew that.”

       Id. at 206-07. Father also stated that he questioned the accuracy of the GAL’s

       report because he believed that Mother “asked [Children] to say certain things

       and to give certain responses to” the GAL. Id. at 214.


[9]    Mother testified at the hearing regarding her request to modify child support.

       Mother said that after she moved to Florida in July 2015, she had a job making

       $70,000 per year for nine months. See id. at 74. Mother stated that she lost that

       job in June 2016 and now owns her own environmental-consulting business

       and works as a realtor. Mother said that she has worked as an environmental

       consultant “since about 2007” and that her current income is $733 per week, or

       approximately $38,000 per year, which is “what [she] made in the past,” except

       during her first nine months in Florida. Id. at 44. Mother also said that her

       expenses are $1647.55 per week. See id. at 83. When asked how she makes up

       the difference between her income and expenses, Mother responded, “My

       husband.” Id. at 84.


[10]   At the conclusion of the testimony, the trial court found that it is in the best

       interests of Children that custody be modified so that Mother has primary

       physical custody of Children with Father to have parenting time “as the parties

       may agree, but not less than the parenting time guidelines where distance is a



       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 7 of 15
       major factor.” Id. at 243-44. The trial court explained its reasons for modifying

       physical custody, stating in part:


               [R]eading a transcript is one thing; hearing it is another. I don’t
               think that there is anyone with an objective mind that can hear
               the recording of what happened on December 13, 2017 and come
               away with a different conclusion other than it was a horrifying
               and egregious display of abuse. . . . That incident presented a
               clear threat to [Children]. . . . [That] was by all estimates a
               display of emotional and verbal, mental abuse to [Children]. . . .
               [December 13th] was a traumatic incident and you have
               minimized it and failed to acknowledge it. You have. You have
               failed to acknowledge it for the effect that it has had on
               [Children]. Your response to that has been to minimize and
               move on. . . . I believe that this is part of what I have seen in the
               evidence here today and that is overall a lack of self-awareness on
               your part. There is a lack of self-awareness with regard to the
               severity and effects of that incident.


       Id. at 240-42. The trial court also ordered Father to pay Mother child support

       in the amount of $270.00 per week. The trial court did not modify legal

       custody or the parties’ agreement to divide equally Children’s extracurricular

       expenses. However, the trial court did admonish both parties to follow the

       court’s order regarding extracurricular expenses.


[11]   Father now appeals.



                                  Discussion and Decision
[12]   Father raises two arguments on appeal. He contends that the trial court erred

       by granting Mother primary physical custody of Children and by failing to

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 8 of 15
       impute income to Mother when determining the parties’ child-support

       obligations.


[13]   The issues Father raises are all decisions that rest within the sound discretion of

       the trial court, and we will reverse only upon a showing that the trial court has

       abused its discretion. See In re Paternity of Snyder, 26 N.E.3d 996, 998 (Ind. Ct.

       App. 2015) (“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 re Paternity of C.B., 112 N.E.3d 746, 761 (Ind. Ct. App. 2018)

       (“We will reverse a trial court’s decision regarding imputation of income only

       for an abuse of discretion.”), trans. denied. An abuse of discretion occurs “when

       the decision is clearly against the logic and effect of the facts and circumstances

       that were before the trial court, including any reasonable inferences to be drawn

       therefrom.” Mertz v. Mertz, 971 N.E.2d 189, 193 (Ind. Ct. App. 2012), trans.

       denied.


                                     I. Custody Modification
[14]   Father first argues that the trial court abused its discretion when it granted

       Mother primary physical custody of Children. The trial court may not modify

       an existing custody order unless the modification is in the best interests of the

       child and there has been a substantial change in one or more statutory factors.

       Ind. Code § 31-17-2-21. Indiana Code section 31-17-2-8 lists the statutory

       factors for a modification of physical custody, including: the age and sex of the

       child; the wishes of the child’s parents; the wishes of the child (with more


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 9 of 15
       consideration given to a child at least fourteen years old); the child’s

       interactions and relationships with any person who may significantly affect the

       child’s best interests; the child’s adjustment to the child’s home, school, and

       community; the mental and physical health of all individuals involved in the

       case; and evidence of a pattern of domestic or family violence by either parent.

       A change in circumstances “must be judged in the context of the whole

       environment, and the effect on the child is what renders a change substantial or

       inconsequential.” Steele-Giri v. Steele, 51 N.E.3d 119, 127 (Ind. 2016). Mother,

       as the party petitioning for modification, “bears the burden of demonstrating

       that the existing custody [arrangement] should be altered.” In re Paternity of

       Snyder, 26 N.E.3d at 998.


[15]   Father specifically argues that the trial court’s conclusion that a substantial

       change in circumstances had occurred was based on a “single instance of

       yelling at [M.C.]” that has not had “any deleterious effect” on Children.1

       Appellant’s Br. pp. 17, 20. Father further asserts that any other instances where

       Children alleged that he yelled at them, “at worst,” can be “characterized as




       1
         After the trial court issued its order modifying physical custody, Father filed a motion to correct error
       alleging that he had an expert conduct an analysis of the recording and that it was his expert’s opinion that
       the recording could not have been sent to Mother in the way she testified it was. The trial court denied
       Father’s motion to correct error. On appeal, Father also contends that the trial court erred in denying his
       motion to correct error. See Appellant’s Br. p. 21. Generally, a party may not raise an issue for the first time
       in a motion to correct error. Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000), reh’g denied. Because Father
       did not raise this issue at trial, we consider this argument waived.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019                     Page 10 of 15
       isolated acts of misconduct by the custodial parent which is insufficient to

       modify custody.” Appellant’s Reply Br. pp. 7-8. We disagree.


[16]   Here, Mother has shown more than isolated acts of misconduct by Father. Cf.

       Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App. 1996) (noting that,

       generally, “the noncustodial parent must show something more than isolated

       acts of misconduct to warrant a modification of child custody”). Rather, she

       has shown evidence that Father has yelled at Children on other occasions when

       they are in his care—for not flushing the toilet or tying shoelaces properly. See

       Tr. p. 20. The evidence also shows that shortly after the December 13 incident,

       Father yelled at Mother, in front of Children, for telling M.C. that she would

       see him at basketball practice. Father testified that he got mad during that

       incident because Mother “push[ed] [his] buttons.” Id. at 206.


[17]   Furthermore, we agree with Mother that the recording is sufficient grounds for

       the trial court to modify custody. See Appellee’s Br. p. 14. For over two

       minutes, Father screamed, cursed, insulted, and berated his seven-year-old son,

       who continuously cried in the background. When explaining why it was

       modifying physical custody, the trial court stated, “I don’t think there’s anyone

       with an objective mind that can hear the recording of what happened on

       December 13, 2017 and come away with a different conclusion other than it

       was a horrifying and egregious display of abuse.” Tr. p. 240-41. Having

       listened to the recording ourselves, we come away with the same conclusion—

       that it was a shocking display of verbal abuse. Additionally, when the GAL

       was asked her opinion of the recording, she testified that the recording “is a

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 11 of 15
       reflection of what [Children] are experiencing on a regular basis with Father

       while in his care.” Tr. p. 24. Evidently, everyone involved in this case—except

       Father—recognizes that the recording constitutes verbal abuse and is concerned

       about the emotional harm it has caused Children. As the trial court aptly

       concluded, Father’s response—to minimize the recording—shows a remarkable

       “lack of self-awareness with regard to the severity and effects” of the incident.

       Id. at 242.


[18]   Moreover, the statute specifically authorizes the trial court to consider “all

       relevant factors,” including the wishes of the child, with more consideration

       given to the child’s wishes if the child is at least fourteen years old. Ind. Code §

       31-17-2-8(3). Here, Children told the GAL that they wished to live with

       Mother. See Tr. p. 13; see also Collyear-Bell v. Bell, 105 N.E.3d 176, 186 (Ind. Ct.

       App. 2018) (“That a child’s wishes are to be given more consideration if the

       child is at least fourteen years old does not mean that the wishes of a child who

       is not yet fourteen cannot be considered.”). Given all this evidence, we find

       that the trial court did not abuse its considerable discretion in modifying

       physical custody of Children.2




       2
         Father also argues that the trial court should “have used a remedy less traumatic to [Children], such as
       referring this matter to [DCS] for an investigation and services.” Appellant’s Br. p. 25. This argument starts
       from the premise that remaining in Father’s custody and care and participating in a DCS investigation would
       be “less traumatic” for Children than the modification of custody. Father has given us no reason to think
       that is true. Ultimately, the same evidence that would support a referral to DCS also amply supports the trial
       court’s decision to modify custody.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019                  Page 12 of 15
                                         II. Imputed Income
[19]   Father next contends that Mother “explicitly rel[ies] on [Stepfather’s] income to

       pay for expenses that would have been covered had she maintained her prior

       level of income” and that the trial court erred by failing to impute this income

       to Mother when determining the parties’ child-support obligations. Appellant’s

       Br. p. 24. The first step in establishing a child-support award is to determine the

       weekly gross income of each parent. In re Paternity of C.B., 112 N.E.3d at 757.

       Indiana Child Support Guideline 3(A)(1) defines weekly gross income as

       “actual weekly gross income of the parent if employed to full capacity, potential

       income if unemployed or underemployed, and imputed income based upon ‘in-

       kind’ benefits.” The Guideline’s commentary states, “[w]hether or not income

       should be imputed to a parent whose living expenses have been substantially

       reduced due to financial resources other than the parent’s own earning

       capabilities is . . . a fact-sensitive situation requiring careful consideration of the

       evidence in each case.” Ind. Child Support Guideline 3(A) cmt. d. The

       commentary further states:


               [R]egular and continuing payments made by a . . . subsequent
               spouse . . . that reduce the parent’s costs for rent, utilities, or
               groceries, may be the basis for imputing income. If there were
               specific living expenses being paid by a parent which are now
               being regularly and continually paid by that parent’s current
               spouse or third party, the assumed expenses may be considered
               imputed income to the parent receiving the benefit.


       Id. (emphases added).


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 13 of 15
[20]   Father acknowledges that when Mother moved to Florida in July 2015 she

       accepted a job “earning $70,000 per year,” that in February 2016 Mother was

       laid off from that job, and that now her income is approximately $38,000 per

       year and her expenses are $1647.44 per week. Appellant’s Br. p. 23.

       Nonetheless, Father argues that Mother relies on Stepfather to “make-up the

       gap” between her weekly income and expenses and that the trial court erred by

       failing to impute Mother’s income in an amount equivalent to her expenses

       when determining her child-support obligation.


[21]   Mother contends that there is “no evidence that [she] is underemployed to

       avoid paying a higher amount of child support, or that she is underemployed

       because of Stepfather’s income.” Appellee’s Br. p. 17. Mother reiterates that

       since she was terminated from her salaried position in 2016, “she has

       consistently been earning the same amount.” Id. That is true. See Tr. p. 74.

       The evidence shows that Mother has been an environmental consultant “since

       about 2007,” and that now she owns her own environmental-consulting

       business and works as a realtor. Id. at 44-45; see also Miller v. Miller, 72 N.E.3d

       952, 956-57 (Ind. Ct. App. 2017) (noting that whether a parent is

       underemployed and imputing income to him or her is not simply determining

       that a parent’s income level has “remained relatively constant for several

       years,” but also involves finding that the parent made his or her “lifestyle and

       career choice before or shortly after” they began the relationship and “worked

       in that profession throughout the relationship” (citing In re the Paternity of

       Buehler, 576 N.E.2d 1354 (Ind. Ct. App. 1991)). Furthermore, while it is also


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 14 of 15
       true that Mother testified that Stepfather “makes up the gap” between her

       income and expenses, there is no evidence to support Father’s claim that

       Mother is “deliberately suppressing her income” to “the financial detriment” of

       Children. Appellant’s Reply Br. p. 10. We conclude that the trial court did not

       abuse its discretion by declining to impute income to Mother.


[22]   Affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1924 | April 15, 2019   Page 15 of 15
