MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D), this                                  Jun 26 2019, 9:19 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the purpose                       CLERK
                                                                             Indiana Supreme Court
of establishing the defense of res judicata, collateral                         Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.



ATTORNEY FOR APPELLANT
Preeti Gupta
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dustin Woodard,                                              June 26, 2019

Appellant-Respondent,                                        Court of Appeals Case No.
                                                             18A-DR-3119
        v.                                                   Appeal from the Morgan Circuit
                                                             Court

Ashley Woodard,                                              The Honorable Matthew Hanson,
                                                             Judge
Appellee-Petitioner.
                                                             Trial Court Cause No.
                                                             55C01-1003-DR-330




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-3119 | June 26, 2019                        Page 1 of 13
                          STATEMENT OF THE CASE
Appellant-Respondent, Dustin Woodard (Father), appeals the trial court’s

denial of his motion to modify custody and for the appointment of a Guardian

ad Litem (GAL).


We affirm.


                                             ISSUES
Father presents two issues on appeal, which we restate as the following:


    (1) Whether the trial court abused its discretion by denying Father’s motion

        to modify custody; and


    (2) Whether the trial court abused its discretion by denying Father’s request

        for the appointment of a GAL.


                FACTS AND PROCEDURAL HISTORY
On November 23, 2010, Father and Appellee-Petitioner, Ashley Woodard

(Mother), divorced. Two sons were born of the marriage: D.W. and J.W.

(collectively, Children) born in 2005 and 2006, respectively. The divorce decree

ordered joint legal custody of the Children, with Mother having primary

physical custody. Father was ordered to pay weekly child support of $55.


On April 18, 2018, Father filed an Emergency Motion to Modify Custody and

Motion for Appointment of a GAL. Father alleged that Mother was exposing

the Children to recurring instances of domestic violence in the home; Mother’s


Court of Appeals of Indiana | Memorandum Decision 18A-DR-3119 | June 26, 2019   Page 2 of 13
live-in boyfriend, Eddie Nalley (Nalley) drank alcohol every day in front of the

Children; Mother was not giving D.W. his ADHD medication correctly; and

that the appointment of a GAL would be in the best interest of the Children.


On November 1, 2018, the trial court conducted an evidentiary hearing.

Father, Mother, and Nalley testified. At the time of the hearing, Mother was

married to Nalley. Father alleged that he had received several Facebook

messages from the Children stating that Mother and Nalley drank alcohol

“every night” and got into altercations. (Transcript Vol. II, p. 5). Father

claimed that in early April 2018, the Children were awakened from their sleep

by Mother and Nalley fighting. Father claimed that Mother received a black

eye from that altercation. Father also alleged that whenever the Children

visited, he detected that the Children were not very well fed and lacked clean

laundry at Mother’s home. Father also alleged that Mother and Nalley would

at times tell D.W., who had “acne,” that he was “ugly” and “stupid.” (Tr. Vol.

II, p. 10).


Regarding the black eye incident, Mother testified that she “got hit in the face”

while playing football with Nalley while the Children were at school. (Tr. Vol.

II, p. 14). Nalley testified that he felt “awful” when the football hit Mother

squarely “in the nose, and blacked both of her eyes.” (Tr. Vol. II, p. 16).

Nalley testified that he cooks dinner every night, that he goes to the store

almost every day, and that there was plenty of food in Mother’s house. Nalley

testified the Children helped with their laundry, and that he and Mother

assisted whenever necessary. At the close of the hearing, the trial court

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indicated that it would like to conduct an in-camera interview with the

Children. On November 9, 2018, the trial court interviewed the Children to

determine their wishes regarding custody. Thereafter, on December 3, 2018,

the trial court entered its order denying Father’s modification request and the

request for the appointment of a GAL.


Father now appeals. Additional facts will be provided as necessary.


                        DISCUSSION AND DECISION
                                    I. Modification of Custody

                                      A. Standard of Review

Child custody modifications are reviewed for an abuse of discretion, and we

grant latitude and deference to our trial judges in family law matters. Miller v.

Carpenter, 965 N.E.2d 104, 108 (Ind. Ct. App. 2012). On appeal, we neither

reweigh the evidence nor reassess witness credibility. Id. Rather, we consider

only the evidence most favorable to the judgment and the inferences flowing

therefrom. Id.


Here, the trial court entered findings of fact pursuant to Indiana Trial Rule

52(A). We may not set aside the findings or judgment unless they are clearly

erroneous. Ind. Trial R. 52(A); Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d

1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence

supports the factual findings. Menard, 726 N.E.2d at 1210. Second, we

consider whether the findings support the judgment. Id. “Findings are clearly

erroneous only when the record contains no facts to support them either

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directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A

judgment is clearly erroneous if it relies on an incorrect legal standard. Menard,

726 N.E.2d at 1210. We give due regard to the trial court's ability to assess the

credibility of witnesses. T.R. 52(A). While we defer substantially to findings of

fact, we do not do so to conclusions of law. Menard, 726 N.E.2d at 1210. We

do not reweigh the evidence; rather, we consider the evidence most favorable to

the judgment with all reasonable inferences drawn in favor of the judgment.

Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).


We note that Mother has failed to file an appellee’s brief. In such a situation,

we will not undertake the burden of developing arguments for Mother. Cox v.

Cantrell, 866 N.E.2d 798, 810 (Ind. Ct. App. 2007), trans. denied. We apply a

less stringent standard of review, and we may reverse the trial court’s decision if

the appellant can establish prima facie error. Id. Prima facie means “at first sight,

on first appearance, or on the face of it.” Id.


                                          B. Modification

Father claims that the trial court abused its discretion by denying his motion to

modify custody of the Children. Pursuant to Indiana Code section 31-17-2-21,

a trial court may not modify a child custody order unless modification is in the

child’s best interests and there is a substantial change in one of the several

factors. Indiana Code Section 31-17-2-8 provides that the factors relevant to a

custody order are as follows:


        (1) The age and sex of the child.


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        (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 . . .




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All that is required to support custody modification under Section 31-17-2-21 is

a finding by the trial court that (1) change would be in the child’s best interests,

(2) a consideration of the factors listed above, and (3) a finding that there has

been a substantial change in one of those factors. In re Paternity of P.R., 940

N.E.2d 346, 351 (Ind. Ct. App. 2010).


On appeal, Father alleges that a substantial change has taken place regarding

statutory factors four and seven as set forth in Indiana Code section 31-17-2-8.

On factor four, the interaction and interrelationships of the child with the

child’s parent or parents, the child’s siblings, and any other person who may

significantly affect the child’s best interests, the trial court entered the following

pertinent finding:


        (D) the [c]ourt finds that Mother and Father are both remarried.
        The [c]ourt finds that there is some friction between the
        [C]hildren and Mother’s husband, [] Nalley. There is no
        evidence of friction between the children and Father’s wife.


(Appellant’s App. Vol. II, p. 13). Father does not challenge this finding.

Instead, he argues that the trial court should have found that a substantial

change had occurred when Mother dressed D.W. in a Nazi costume for

Halloween. He adds that Mother’s actions were offensive, considering he has

people in his “family who are Jewish, Hispanic[,] and Black.” (Appellant’s Br.

p. 8). Because Father has not challenged the propriety of the above finding

upon which the trial court could have relied to reject his request to modify

custody, we interpret his contentions as requests to consider evidence contrary


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to the judgment and reweigh the evidence and findings, which we cannot do.

See Yoon, 711 N.E.2d at 1268.


On factor seven, evidence of a pattern of domestic or family violence by either

parent, the trial court entered the following finding


        (G) [] Father alleges domestic or family violence in Mother’s
        home, pointing out that he saw Mother with a black eye. Mother
        and her husband testified that the black eye was the result of
        Mother’s failed attempt to catch a football. The [c]ourt finds
        that, although there is arguing in Mother’s home, which includes
        arguing between the adults and between the adults and children,
        this does not rise to the level of being characterized as domestic
        or family violence.


(Appellant’s App. Vol. II, p. 13) (internal citations omitted). In his brief, Father

contends that


        The behaviors that have been occurring in Mother’s home are
        not isolated instances. Again, there were several instances of
        family violence that were presented at the November 1st hearing,
        and probably at the in-camera hearing[]. Because there was a
        pattern of family violence by the Mother, the trial court should
        have modified custody.


(Appellant’s Br. p. 8). At the evidentiary hearing, Mother refuted claims of

violence in her home, and she stated that the black eye was the result of her

failed attempt to catch a football. Also, we note that the trial court conducted

an in-camera interview with the Children, and the results of that interview are

not part of the record.


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Father’s argument on this factor consists of him directing our attention to

evidence that supports his position and attempting to discredit the evidence

relied upon by the trial court. This amounts to a repeated request that we

reweigh the evidence and assess witness credibility, which we will not do. See

Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (cautioning that with respect to

custody modifications, appellate courts “are in a poor position to look at a cold

transcript of the record, and conclude that the trial judge, who saw the

witnesses, observed their demeanor, and scrutinized their testimony as it came

from the witness stand, did not properly understand the significance of the

evidence”). In the instant case, Mother denied the presence of physical

violence in her home, and she offered her own testimony describing how her

blackened eye resulted. The trial court saw Mother and Father as witnesses,

observed their demeanor, scrutinized their testimony as it came from the

witness stand, and conducted an in-camera interview with the Children. See

Tompa v. Tompa, 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). As such, we

conclude that the above finding relating to the domestic violence was not

erroneous.


                                    II. Appointment of a GAL

Father argues that the trial court abused its discretion by denying his motion for

the appointment of a GAL. Dwelling on his claim that domestic violence was

present in Mother’s home, Father asserts, “[i]t is doubtful that the trial court []

could have done an adequate job of investigating these allegations with an [in-

camera] interview. A GAL would have done a much more thorough


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investigation of the allegations and the GAL would have issued a neutral and

comprehensive report.” (Appellant’s Br. p. 8).


Indiana Code Section 31-17-6-1 provides that a trial court may appoint a GAL,

a court appointed special advocate, or both, for a child at any time. Father

notes correctly that the statute places the decision within the trial court’s

discretion. See Gilbert v. Gilbert, 7 N.E.2d 316, 323 (Ind. Ct. App. 2014); In re

B.C.S., 793 N.E.2d 1054, 1060 (Ind. Ct. App. 2003). The purpose of such an

appointment is to protect the best interests of the child. I.C. § 31-17-6-3.


Here, the trial court made the following conclusion in its order: “After careful

consideration of the evidence presented by the parties . . . The [c]ourt, therefore,

DENIES Father’s Emergency Motion to Modify Custody and Motion for

Appointment of [GAL].” (Appellant’s App. Vol. II, p. 13). Considering

Mother’s and Father’s testimony—i.e., they were both committed to protecting

the Children’s best interests—the trial court concluded that the appointment of

a GAL was not necessary. Under the circumstances of the present case, we do

not believe the trial court abused its discretion in failing to appoint a GAL.


                                      CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its

discretion by denying Father’s motion to modify custody. Also, we hold that

the trial court did not abuse its discretion by denying Father’s request for the

appointment of a GAL.


Affirmed.
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Bailey, J. concurs


Pyle, J. concurs in result with separate opinion




Court of Appeals of Indiana | Memorandum Decision 18A-DR-3119 | June 26, 2019   Page 11 of 13
                                           IN THE
    COURT OF APPEALS OF INDIANA

Dustin Woodard,                                          Court of Appeals Case No.
                                                         18A-DR-3119
Appellant-Respondent,

        v.

Ashley Woodard,

Appellee-Petitioner.




Pyle, Judge, concurring in result

I concur in the result reached by my colleagues, but I write separately to

commemorate the seventy-fifth anniversary of D-Day. At 6:00 a.m. of June 6,

1944, some 4,400 ships and landing craft, carrying 154,000 American, British,

Canadian, and Polish troops, landed with 1,500 tanks, supported by some

11,000 aircraft to oust the Nazi scourge in Europe. THE OXFORD COMPANION

TO UNITED STATES HISTORY              174 (Paul S. Boyer ed., Oxford University Press

2001). Among many atrocities, the Nazi regime was responsible for a

Court of Appeals of Indiana | Memorandum Decision 18A-DR-3119 | June 26, 2019        Page 12 of 13
“genocidal program to exterminate European Jews”; a program which oversaw

the murder of some 6 million Jews. Id. at 43; The Holocaust Resource Center

FAQs, Yad Vashem: The World Holocaust Remembrance Center (6/14/2019).

By the end of World War II, American battle deaths “totaled 292,131, with an

additional 115,185 deaths from other causes.” Id. at 846. “Total military and

civilian deaths in the conflict have been estimated at fifty million.” Id. at 847. I

salute those who served and sacrificed.


In this case, the trial court had the opportunity to weigh the evidence and

evaluate the credibility of the witnesses. However, it must be noted that Father

introduced evidence that Mother had dressed their son in a Nazi soldier’s

uniform for Halloween. When the trial court asked her if she had any objection

to the admission of the photographs, she stated, “No. I don’t see nothing [sic]

wrong with it.” Tr. 7. In light of the tremendous sacrifice of our men and

women in uniform defeating the Nazi regime (our enemy), the following

proverb should breathe new relevance into our collective decision-making: Just

because you can do something does not mean you should.




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