      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                Feb 04 2020, 8:58 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
      Adam Potts
      McCoy Law Office
      Lafayette, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Amanda Isley,                                            February 4, 2020
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               19A-DR-1790
              v.                                               Appeal from the Carroll Circuit
                                                               Court
      Blake Miller,                                            The Honorable Kurtis G. Fouts,
      Appellee-Respondent                                      Judge
                                                               Trial Court Cause No.
                                                               08C01-1107-DR-57



      May, Judge.

[1]   Amanda Isley (“Mother”) and Blake Miller (“Father”) divorced in 2012 and

      have three minor children. Mother appeals the trial court’s order denying her

      motion for modification of custody. Mother raises one issue on appeal, which

      we revise and restate as whether the trial court abused its discretion by not

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1790 | February 4, 2020                  Page 1 of 8
      modifying its custody order to grant Mother custody of the children when

      Father is away for extended periods of time during the summer. We affirm.



                             Facts and Procedural History
[2]   Mother and Father were married and have three children—E.M. (born August

      2009), A.M. (born March 2008), and C.M. (born December 2006). When

      Mother and Father divorced in 2012, the trial court ordered Mother to have

      custody of the children. At that time, Mother lived in Carroll County, Indiana,

      and Father lived in South Dakota. Father later moved back to Indiana, and

      Mother enlisted in the military, which required her to move to Oklahoma. The

      court ordered Father to have temporary primary custody of the children while

      Mother was in Oklahoma. Mother’s military obligation then required her to

      move from Oklahoma to North Carolina. The court entered a modified

      custody order on July 29, 2016, awarding Mother custody during the school

      year and Father custody during Christmas break, spring break, and most of the

      summer.


[3]   On November 19, 2018, Mother filed a verified motion for temporary

      injunction and modification of custody. Mother asserted in her motion that

      there was a pending criminal investigation concerning whether Father abused

      one of the children. 1 On January 2, 2019, Father filed a petition to cite Mother




      1
       The record is unclear concerning the results of the investigation. However, the investigation was completed
      by the time of the hearing on Mother’s motion for modification of custody.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1790 | February 4, 2020                 Page 2 of 8
      for contempt. Father alleged that Mother had denied him parenting time over

      Christmas break.


[4]   The court held a hearing on both motions on July 8, 2019. At the hearing,

      Mother asked the court to modify the custody arrangement because she learned

      that Father would be away from Indiana for two-week stretches of time during

      the summers because he works in West Virginia. Mother wanted the children

      to stay with her in North Carolina during those periods. Mother testified that

      transporting the children between Indiana and North Carolina would require

      the children to spend approximately eight to ten hours in the car every two

      weeks. 2


[5]   Randee Miller, Father’s current wife, lives in Indiana and takes care of the

      children when Father is in West Virginia. She works Monday through Friday

      from 8:00 am to 5:00 pm. The childcare arrangement varies while she is

      working. Sometimes, the children stay at home by themselves. Other times,

      they spend time at their friends’ homes or visit Randee Miller’s parents. The

      court denied Mother’s motion for modification of custody because the court

      found such a modification would not be in the best interests of the children. 3

      The court explained: “It’s not practical for the kids [to] jet back and forth




      2
       We note the estimated travel time by car from Delphi, Indiana, where Father lives, to Fort Bragg, North
      Carolina, where Mother is stationed, is eleven hours and eighteen minutes. Google Maps
      https://www.google.com/maps/dir/Delphi,+IN+46923/Fort+Bragg,+NC. (last visited January 15, 2020).
      3
       The trial court also found Mother in contempt for willfully denying Father parenting time over the 2018
      Christmas holiday. However, Mother does not appeal the contempt finding.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1790 | February 4, 2020                 Page 3 of 8
      between here and North Carolina[.]” (Tr. Vol. II at 58.) The court also noted

      that the children would be “miserable” if they had to spend hours in a car every

      two weeks. (Id.)



                                 Discussion and Decision
[6]   Initially, we note Father has not filed an appellee’s brief. “In such a situation,

      we do not undertake the burden of developing arguments for the appellee.”

      Burrell v. Lewis, 743 N.E.2d 1207, 1209 (Ind. Ct. App. 2001). We will reverse

      the trial court if Mother is able to show prima facie error. Id. “Prima facie, in this

      context, is defined as ‘at first sight, on first appearance, or on the face of it.’”

      Id. (emphasis in original) (quoting Johnson Cty. Rural Elec. Membership Corp. v.

      Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985)).


[7]   A trial court’s ruling on a motion to modify child custody is reviewed for an

      abuse of discretion. Wills v. Gregory, 92 N.E.3d 1133, 1136 (Ind. Ct. App.

      2018), trans. denied. “An abuse of discretion occurs when the trial court’s

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

      before the court, or if the court has misinterpreted the law.” Tamasy v. Kovacs,

      929 N.E.2d 820, 826 (Ind. Ct. App. 2010). We give significant latitude and

      deference to the trial court in family law matters because a trial court judge can

      observe witnesses’ demeanor and scrutinize their testimony. Wills, 92 N.E.3d

      at 1136. Therefore, we will not reweigh the evidence or assess the credibility of

      the witnesses, and we will review the evidence in the light most favorable to

      trial court’s judgment. Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1790 | February 4, 2020   Page 4 of 8
[8]   Mother argues the trial court abused its discretion in denying her motion to

      modify custody because the children are left outside the custody of a biological

      parent during the periods in the summer when Father is in West Virginia for

      work. A court may not modify a prior custody determination unless doing so is

      in the best interest of the children and there has been a significant change in

      circumstances. Ind. Code § 31-14-13-6. The circumstances include those the

      court was to consider when making an initial custody determination:


              The court shall determine custody in accordance with the best
              interests of the child. In determining the child’s best interests,
              there is not a presumption favoring either parent. The court shall
              consider all relevant factors, including the following:


              (1) The age and sex of the child.


              (2) The wishes of the child’s 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 parents;


                  (B)          the child’s siblings; and


                  (C)          any other person who may significantly affect the
                        child’s best interest.


              (5) The child’s adjustment to home, school, and community.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-1790 | February 4, 2020   Page 5 of 8
                 (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 2.5(b) of this chapter.


       Ind. Code § 31-14-13-2.


[9]    Rather than arguing based on those modification of custody statutes, Mother

       cites Indiana Code section 31-17-4-2, which governs the modification of a

       parenting time order. Mother argues the trial court’s denial of her motion for

       custody modification serves to restrict her parenting time. However, the denial

       of her motion for custody modification does not restrict her parenting time

       because she still receives custody of the children for the times awarded to her in

       the July 29, 2016, order.


[10]   To the extent Mother argues she should have additional time with the children

       because Father is away for portions of the summer, the Indiana Parenting Time

       Guidelines contemplate that there may be times when the custodial parent may

       not be able to care for the children. Indiana Parenting Time Guideline 1(C)(3)

       states:


                 When it becomes necessary that a child be cared for by a person
                 other than a parent or a responsible household family member,
                 the parent needing the child care shall first offer the other parent
                 the opportunity for additional parenting time, if providing the

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1790 | February 4, 2020   Page 6 of 8
                  child care by the other parent is practical considering the time
                  available and the distance between residences.


       Here, the trial court found it impractical to have Mother care for the children

       while Father is in West Virginia. 4 The trial court held that it was not in the best

       interests of the children for them to spend hours in the car every two weeks

       because it would be “terrible” and would make the children “miserable.” (Tr.

       Vol. II at 58.)


[11]   Mother notes “the importance of a child having strong relationships with both

       parents.” (Appellant Br. at 14.) Mother argues the trial court’s July 29, 2016,

       custody order prevents her from vacationing with the children unless she pulls

       them out of school. Mother also notes she would have more time with the

       children if they were with her in North Carolina while Father was away in

       West Virginia, which she believes would enhance her relationship with the

       children. However, these arguments are nothing more than requests for us to

       reweigh the evidence. We decline to do so. See Walker v. Nelson, 911 N.E.2d

       124, 129 (Ind. Ct. App. 2009) (“In summary, we conclude that Mother’s

       arguments merely request that we reweigh the evidence and judge the

       credibility of the witnesses, which we cannot do.”). The children would have to

       travel hundreds of miles and spend many hours in transit if they were required

       to shuffle between Delphi, Indiana, and North Carolina every two weeks.




       4
           Mother does not allege that Randee Miller is an irresponsible household member.


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1790 | February 4, 2020      Page 7 of 8
       Therefore, it was not an abuse of discretion for the trial court to conclude that

       ordering the children to do so was not in their best interest. See Kirk v. Kirk, 770

       N.E.2d 304, 308 (Ind. 2002) (holding trial court did not abuse discretion in

       concluding custody modification was not in the children’s best interest).



                                               Conclusion
[12]   Accordingly, we affirm the trial court’s decision to deny Mother’s motion for

       modification of custody.


[13]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-1790 | February 4, 2020   Page 8 of 8
