MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Aug 30 2016, 8:24 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Andrea L. Ciobanu                                        Judy M. Tyrrell
Amy McCool                                               Indianapolis, Indiana
Ciobanu Law, P.C.
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of: L.S.,                            August 30, 2016
Chen Su,                                                 Court of Appeals Case No.
                                                         49A02-1512-JP-2196
Appellant-Respondent,
                                                         Appeal from the Marion Circuit
        v.                                               Court
                                                         The Honorable Sheryl Lynch,
James Lowe,                                              Judge
                                                         The Honorable Tamara L.
Appellee-Petitioner.
                                                         McMillian, Magistrate
                                                         Trial Court Cause No.
                                                         49C01-0909-JP-41285



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016        Page 1 of 17
                                  Case Summary and Issues
[1]   Chen Su (“Mother”) appeals the trial court’s order modifying custody,

      parenting time, and child support for L.S., her child with James Lowe

      (“Father”). She raises two issues for our review, which we restate as follows:

      1) whether the trial court’s judgment modifying custody of L.S. from Mother’s

      sole legal custody to Father’s sole legal custody is clearly erroneous, and 2)

      whether the trial court’s order regarding the payment of health care expenses is

      clearly erroneous.1 Concluding the trial court did not commit clear error in

      either respect, we affirm.



                               Facts and Procedural History
[2]   L.S. was born in December 2008. Father’s paternity was established in 2009.

      By order dated September 26, 2011, the trial court awarded legal and physical

      custody of L.S. to Mother, with Father to have parenting time as ordered. The

      court noted the parties “are not typical of ‘high conflict’ parents but have

      demonstrated communication difficulties regularly.” Appellant’s Appendix at

      50. Additionally, the trial court found as follows:

               10. Both parents testified that Mother always included Father
               prospectively on decisions related to [the child’s] well-being.
               11. Mother has made reasonable decisions regarding health,



      1
        Mother originally raised a third issue in her brief regarding the validity of the order as it was signed only by
      a magistrate and not counter-signed by the trial court judge. Mother subsequently filed a motion to dismiss
      that argument because the judge had indeed counter-signed the order and her argument was therefore moot.
      By separate order, we grant that motion and do not address that issue herein.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016                Page 2 of 17
              education, daycare and religion for [the child] and has included
              Father in all areas even with sole legal custody.
              ***
              13. Mother wishes to retain sole legal custody of [the child] and
              shall include Father in major life decisions in advance of the final
              decision being made.


      Id. at 54. A Parenting Time Coordinator was appointed for two years, though

      this term was later extended.


[3]   Several issues arose over the next few years. L.S. began school at Park Tudor

      in the fall of 2013 when she was four years old. Park Tudor has a “junior

      kindergarten” and a “senior kindergarten” class. Father thought L.S. should

      attend junior kindergarten with other children her age, but Mother placed her in

      the senior kindergarten class, “effectively . . . skipping a grade level.”

      Transcript at 59. Although L.S. did well in school academically, L.S.’s teacher

      recommended that L.S. attend “senior kindergarten” again in the fall of 2014.

      Father agreed with this recommendation so L.S. would be more on par socially

      with her classmates, but Mother advanced L.S. to the first grade despite the

      teacher’s recommendation and Father’s wishes. In the fall of 2014, an incident

      occurred in class which was upsetting to L.S. and to Mother. Mother addressed

      the issue with the school before informing Father of the incident. Upon being

      informed of the incident and included in the ensuing resolution, Father felt the

      school “went above and beyond” in handing the situation appropriately. Tr. at

      65. Mother disagreed and told Father she wanted to withdraw L.S. from Park

      Tudor. Father did not want to take L.S. out of Park Tudor at all but he


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 3 of 17
      encouraged Mother to at least wait until the end of the semester. Mother

      nonetheless withdrew L.S. from Park Tudor without informing Father she had

      done so and enrolled L.S. in a new school of Mother’s choosing that she had

      never mentioned to Father. In fact, L.S. had already been attending her new

      school for a couple of days before Father became aware that she was no longer

      at Park Tudor. L.S. indicated she would have preferred to stay at Park Tudor.


[4]   Mother and Father also clashed over medical and dental care for L.S. Mother

      was reluctant to allow recommended x-rays or administer prescribed

      medication. On one occasion when Mother was traveling out of the country for

      business and Father was caring for L.S., Mother did not leave Father a

      medication that had been prescribed for L.S. L.S.’s doctor’s office called in a

      second prescription for Father to pick up. Father informed Mother via e-mail

      he had obtained the medication and intended to administer it. Mother

      instructed him not to give L.S. the medication, so he did not. When Mother

      returned, she requested Father turn over to her his supply of the medication so

      she would know he was not giving it to L.S. against her wishes. On another

      occasion, Mother took L.S. to an immediate care facility for an illness.

      Although she informed Father so he could also attend, a miscommunication led

      to him going to a different facility and missing the appointment. Thereafter,

      Father asked to see the medical records from the visit, but Mother would not

      provide them. Father then called the facility directly but Mother refused to

      allow the facility to release the records to him. Mother also began taking L.S.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 4 of 17
      to a counselor without informing Father; he learned about the counseling from

      L.S. herself after she had already attended at least two appointments.


[5]   On November 6, 2013, Father filed an Amended Motion to Modify Custody,

      Parenting Time, and Child Support, requesting the court modify custody to

      joint legal custody or, in the alternative, grant him sole legal custody; to modify

      parenting time so that the parties have equal parenting time; and to modify

      child support. Dr. Randall Krupsaw had completed a custody evaluation

      during the initial paternity proceedings; he was appointed to update his report

      after Father filed this motion. While this motion remained pending, Father

      filed a Motion for Sole Legal Custody on December 3, 2014. Dr. Krupsaw filed

      his updated custody evaluation in April 2015.


[6]   After the parties engaged in an unsuccessful attempt to mediate this dispute, the

      trial court held a hearing in September 2015. Dr. Krupsaw testified and stated

      that although he recommended sole legal custody in one parent due to the

      “magnitude of the difference between the parents” about certain issues, tr. at

      26, he did not ultimately recommend one parent or the other have sole legal

      custody because there were positives and negatives with each parent. Nissa

      Ricafort, the Parenting Time Coordinator, testified that although she believed

      both parents really love L.S. and in general have the same views of what is best

      for her, “there is a lot of dispute on how that is defined, and how we reach these

      decisions, and I have been racking my brain trying to figure out a more effective

      way to facilitate communication, and I have not been able to do it.” Id. at 149-

      50. Ricafort believed that as between the two parents, Father was more likely

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 5 of 17
      to include Mother in major decisions regarding L.S., to follow doctor and

      dentist recommendations, to include Mother in school and extra-curricular

      activity decisions, and to cooperate with a parenting time coordinator in the

      future.


[7]   Following the hearing, the trial court issued extensive findings of fact,

      culminating in the following order, in relevant part:


              1. The Court orders Father to have sole legal custody of the
              child, effective the date of this order.
              2. The Court orders Father to have equal parenting time of the
              child, which results in Mother and Father having joint physical
              custody of the child, effective the date of this order.
              ***
              4. The Court orders Mother the custodial parent for controlled
              expenses. Mother and Father shall keep a set of clothes for the
              child at their homes. Mother shall be responsible for purchasing
              the child’s coats and shoes which will transfer back and forth
              between Mother and Father’s homes. The Court clarifies,
              Mother shall also be responsible for all other controlled expenses
              pursuant to the Indiana Parenting Time Guidelines.
              ***
              6. The Court orders Mother to provide health insurance for the
              minor child as long as it is reasonable, accessible, and available.
              Mother shall pay the first $1,204.32 per year of the child’s
              uninsured medical, dental, optical, orthodontic, and prescription
              expenses, after which Mother shall pay 67% and Father shall pay
              33% of any additional uninsured health care expenses that year
              ....


      Appellant’s App. at 41-43. Mother now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 6 of 17
                                 Discussion and Decision
                                     I. Standard of Review
[8]   The party seeking to modify child custody bears the burden of demonstrating

      that the existing custody arrangement should be altered. Steele-Giri v. Steele, 51

      N.E.3d 119, 124 (Ind. 2016). Whereas there is no presumption for either parent

      in an initial custody determination, Ind. Code § 31-14-13-2, a more stringent

      standard applies to a custody modification because “permanence and stability

      are considered best for the welfare and happiness of the child,” Steele-Giri, 51

      N.E.3d at 124 (citation omitted). At the request of the parties, the trial court

      entered specific findings of fact and conclusions thereon in support of its order

      granting Father’s motion for change of custody. Under these circumstances, we

      will “not set aside the findings or judgment unless clearly erroneous,” and will

      give “due regard . . . to the opportunity of the trial court to judge the credibility

      of the witnesses.” Ind. Trial Rule 52(A). The findings are controlling unless

      the record contains “no facts to support them either directly or by inference.”

      In re Marriage of Gertiser, 45 N.E.3d 363, 369 (Ind. 2015) (citation omitted). A

      judgment is clearly erroneous if no evidence supports the findings, the findings

      fail to support the judgment, or if the trial court applies an incorrect legal

      standard to properly found facts. In re Marriage of Marek, 47 N.E.3d 1283, 1288

      (Ind. Ct. App. 2016), trans. denied. We therefore assess whether the evidence

      supports the findings made by the trial court and whether the findings in turn

      support the judgment. Bogner v. Bogner, 29 N.E.3d 733, 741 (Ind. 2015).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 7 of 17
[9]    In family law matters, there is a well-established preference for granting latitude

       and deference to trial court judges. Steele-Giri, 51 N.E.3d at 124 (citation

       omitted). As a reviewing court, we “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.” Id. (citation omitted). Rather, appellate deference to the

       determinations of trial court judges 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. . . . [They] 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).


                                      II. Change of Custody
[10]   The trial court’s order changed the custody of L.S. from sole legal custody in

       Mother to sole legal custody in Father.

               The court may not modify custody unless:
               (1) 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 2 . . . of this chapter.


       Ind. Code § 31-14-13-6. Indiana Code section 31-14-13-2 states 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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 8 of 17
       consideration given to the wishes of a child who is at least fourteen years old; 4)

       the interaction and interrelationship of the child with the child’s parents; 5) the

       child’s adjustment to home, school, and the community; and 6) the mental and

       physical health of everyone involved. 2 (Emphasis added.) By its plain

       language, the statute does not provide an exhaustive list of the factors to be

       considered in determining custody. “[W]ith respect to legal custody, the

       welfare of the children, not the wishes and desires of the parents, is the primary

       concern of the courts.” Carmichael v. Siegel, 754 N.E.2d 619, 635 (Ind. Ct. App.

       2011).


[11]   The trial court made the following findings and conclusions relevant to its

       custody decision:

                                                     Findings of Facts
                                                     Legal Custody


                  ***
                  18. Previously, the child went to Med Check. Mother called
                  Father to inform him of the visit but Father went to the wrong
                  location. Father asked Mother for a copy of the child’s medical
                  records and Mother refused to give them to him. Father called
                  the doctor’s office to obtain a copy of the child’s medical records
                  and Mother told the doctor’s office not to release the information
                  to Father.
                  ***
                  21. According to the Paternity Judgment, the parties were
                  ordered to work together to attempt to agree on the child’s extra-



       2
           We have omitted factors not relevant to this situation.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 9 of 17
        curricular activities and share the expense 50/50.
        22. Mother usually unilaterally selects the child’s extra-curricular
        activities without Father’s input.
        ***
        31. Mother failed to inform Father that she withdrew the child
        from Park Tudor before she did it.
        ***
        34. When Mother withdrew the child from Park Tudor, Mother
        enrolled the child in IPS School 91 without consulting with
        Father. Father learned the child was enrolled at IPS School 91
        after Mother enrolled the child there.
        35. Mother admitted that she enrolled the child into IPS School
        91 without informing Father even though she was aware that she
        was to consult with Father.
        36. Mother made many school decisions without consulting with
        Father.
        ***
        40. The Parenting Coordinator testified that Mother failed to
        consider Father’s opinion regarding a kindergarten program or
        whether the child should skip a grade.
        ***
        52. The child sees a psychologist. Mother admitted that she
        failed to inform Father that she was taking the child to see a
        psychologist.
        53. Dr. Krupsaw recommended that one of the parties have sole
        legal custody of the child due to the parties being unable to
        communicate effectively regarding the child. . . . Dr. Krupsaw
        did not recommend which parent should have sole legal custody.
        ***
        55. Dr. Krupsaw concluded that if the Court orders sole legal
        custody to Father, there would be a high likelihood the child
        would get more medical care and Father would communicate
        regularly with Mother.
        56. Dr. Krupsaw concluded that if sole legal custody remains
        with Mother, there would be a high likelihood that Mother will
        communicate less with Father.
        ***

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 10 of 17
        61. The Parenting Coordinator testified that Mother makes
        decisions about the child then tells Father later.
        ***
        69. The Parenting Coordinator testified that Father is more
        likely to include Mother in the child’s major life decisions.
        ***
        74. Dr. Krupsaw found moderate support that Mother made
        some major parenting decisions without Father that could impact
        Father’s relationship with the child.
        ***


                             Physical Custody/Parenting Time


        ***
        10. The child was two (2) years old at the time of the initial
        evaluation.
        11. The minor child is now six (6) years old.
        ***
        14. The child has a positive relationship with both parents, their
        homes, and communities.
        ***
        17. The child is not well-adjusted to IPS School 91.
        18. According to Dr. Krupsaw’s custody evaluation, the child
        preferred Park Tudor over IPS School 91.
        ***


                                       Conclusions of Law
                                        Legal Custody


        ***
        3. Father is willing and more likely to communicate and
        cooperate with Mother about the child to advance the child’s
        welfare.
        4. Mother has demonstrated a pattern of being unwilling to
        communicate and cooperate with Father to advance the child’s

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 11 of 17
                welfare.
                ***
                6. The child has a close and beneficial relationship with both
                Mother and Father.
                ***
                8. Both Mother and Father have a positive physical and
                emotional home environment for the child.
                ***
                10. There has been a substantial change of circumstances
                regarding the issue of legal custody of the child and the best
                interest of the child.
                11. It is in the child’s best interest to modify legal custody and
                for Father to have sole legal custody of the child.


       Appellant’s App. at 23-30, 36-37.


[12]   Mother does not challenge any of the trial court’s findings of fact. See

       Appellant’s Brief at 13.3 Rather, Mother contends the trial court’s findings do

       not support its judgment modifying custody. Specifically, Mother contends the

       trial court’s judgment rested solely on the communication difficulties between

       the parties, and asserts this does not represent a substantial change because lack




       3
         In fact, Mother concedes the trial court’s findings of fact “establish the relevant facts” and does not include
       within her brief her own statement of facts. Id. Although Appellate Rule 46(A)(6)(b) requires the statement
       of facts in a brief to be “stated in accordance with the standard of review appropriate to the judgment or order
       being appealed,” we do not believe that provision allows a party to completely dispense with including a
       narrative statement of facts in its brief even if it agrees with the trial court’s findings. Appellate Rule 46 also
       requires the statement of facts to be supported by page references to the record, which the trial court’s order
       does not include. Our review would have been greatly facilitated by a statement of facts including the
       appropriate record citations, especially considering the trial court’s order is twenty-six pages long and
       includes well over 100 findings of fact.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016               Page 12 of 17
       of communication was identified as an issue in the initial custody

       determination, as well.


[13]   We agree communication between the parents was identified as an issue at the

       time of the initial custody determination. That is, in part, why the trial court

       did not award joint legal custody to the parties at that time. However, in 2011,

       the trial court also found that Mother “always included Father prospectively on

       decisions relating to [L.S.’s] well being” and “has made reasonable decisions

       regarding health, education, daycare and religion for [L.S.]” Appellant’s App.

       at 54. Mother was therefore granted sole legal custody and given the ability to

       make major decisions for L.S. with the proviso that she was to fully discuss any

       such decisions with Father and consider his input before making the final

       decision. Id. at 63. In the ensuing years, Mother has made numerous major

       decisions regarding L.S. without consulting Father first, some of which Dr.

       Krupsaw felt had the potential to undermine the relationship between Father

       and L.S. Mother has made unilateral medical decisions against physician

       advice, has refused to allow Father to provide medical care as he saw fit when

       he was actually with L.S. and she was out of town, and has refused to allow

       Father to have complete medical information, to which he is entitled. The

       Parenting Time Coordinator testified she sometimes felt that when Mother did

       consult Father in advance, “it became frustrating because I felt like we were

       going through the motions to say that we went through the motions, but that

       . . . the decision had already been made.” Tr. at 138. Therefore, the trial

       court’s findings regarding Mother’s unwillingness to cooperate in making


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 13 of 17
       decisions regarding L.S. and that Father would be more likely to communicate

       and involve Mother in decision-making does demonstrate a substantial change

       from the circumstances existing at the time of the original determination. The

       parties’ ability to communicate and work together is essential to the welfare of

       the child and is relevant to the determination of the appropriate custodial

       arrangement.


[14]   Mother does not challenge the trial court’s finding that modification of custody

       would be in L.S.’s best interests, nor does she challenge the modification of

       parenting time. However, we note the total effect of the trial court’s order:

       Father was granted sole legal custody for purposes of educational and medical

       decision-making based on the substantial change in circumstances discussed

       above, but the parties were granted equal parenting time. Father testified that

       although he was requesting sole legal custody because he does not believe it is

       feasible at this time to make reasonable co-parenting decisions together, he

       “[v]ery badly” wanted the parties to have equal parenting time “[b]ecause I

       think that we both have very important things to share with our daughter, and I

       think that she needs to be able to see us as equal parents . . . .” Id. at 55. Dr.

       Krupsaw testified that it would be in the best interests of L.S. for the parties to

       have an equal split in parenting time because L.S. made it clear that she wants

       to “spend equal time with each parent because she loves them equally; enjoys

       the time with them equally, and would like to have that kind of arrangement

       solely for her own reasons not because . . . she is trying to be fair to the

       parents.” Id. at 23-24. Based on our review of the record and the trial court’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 14 of 17
       extensive findings and interaction with these parties, we will not second guess

       the trial court’s determination that modification of legal custody was

       appropriate.


                                     II. Healthcare Expenses
[15]   In its child support calculation, the trial court designated Mother as the parent

       who would pay controlled expenses and ordered Mother to pay the first

       $1,204.32 of uninsured healthcare expenses incurred on behalf of L.S. Mother

       contends this is in error because she is paying for L.S.’s health insurance and

       also paying all controlled expenses, so “it would be patently unfair for Mother

       to also be deemed the custodial parent for uninsured health care expenses.”

       Appellant’s Br. at 21.


[16]   Notably, Mother does not challenge the trial court’s designation of her as the

       parent who will pay controlled expenses. Her argument therefore

       misunderstands the Child Support Guidelines. Where parenting time is to be

       shared equally,

               [E]ither the mother or father must be designated as the parent
               who will pay the controlled expenses. Then, the other parent is
               given the parenting time credit. The controlled expenses remain
               the sole obligation of the parent for whom the parenting time
               credit is not calculated.


       Commentary to Ind. Child Support Guideline 6 (“Child Support When

       Parenting Time is Equally Shared”). Controlled expenses are defined by the

       Guidelines as “items like clothing, education, school books and supplies,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 15 of 17
       ordinary uninsured health care and personal care.” Id. (“Analysis of Parenting

       Time Costs: Controlled Expenses”).4 Similarly, Child Support Guideline 7

       states “[o]rdinary uninsured health care expenses are paid by the parent who is

       assigned to pay the controlled expenses (the parent for whom the parenting time

       credit is not calculated) up to six percent (6%) of the basic child support

       obligation.”


[17]   Here, Mother and Father share parenting time equally. Therefore, although

       controlled expenses are “typically paid by the custodial parent,” neither parent

       is the de facto physical custodian here and the trial court was required to

       designate one party as the parent who will pay controlled expenses. The trial

       court so designated Mother, and then calculated the parenting time credit for

       Father. As the parent responsible for controlled expenses, Mother is

       responsible for six percent uninsured health care expense. This is in accordance

       with the Child Support Guidelines and Mother has shown no error.



                                                 Conclusion




       4
         The Commentary to Guideline 6 identifies two types of expenses that are incurred by both parents:
       transferred expenses (such as food expenses, which are incurred only when the child resides with a parent
       and are transferred with the child as she moves from on residence to the other) and duplicated expenses (such
       as housing costs, which are incurred when two households are maintained for a child regardless of whether
       the child is residing there). “A third category of expenses is controlled expenses, such as the 6% uninsured
       health care expense that remains the sole obligation of the parent for whom the parenting time credit is not
       calculated.” Commentary to Child Supp.G. 6 (“Analysis of Parenting Time Costs”). “These categories of
       expenses are not pertinent for litigation.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016         Page 16 of 17
[18]   The trial court’s judgment that Father should have sole legal custody of L.S.

       with shared parenting time and that Mother should pay the controlled expenses

       including the uninsured health care expense is not clearly erroneous. The

       judgment is therefore affirmed.


[19]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JP-2196 | August 30, 2016   Page 17 of 17
