                                                            FILED
                                                       Mar 03 2017, 6:18 am

                                                            CLERK
                                                        Indiana Supreme Court
                                                           Court of Appeals
                                                             and Tax Court




ATTORNEY FOR APPELLANT
Dylan A. Vigh
Law Offices of Dylan A. Vigh, LLC
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Caleb Riggen,                                              March 3, 2017
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           67A04-1606-DR-1312
        v.                                                 Appeal from the Putnam Superior
                                                           Court
Tammy Riggen,                                              The Honorable Charles D. Bridges,
Appellee-Respondent.                                       Judge
                                                           Trial Court Cause No.
                                                           67D01-1309-DR-164



Bailey, Judge.




Court of Appeals of Indiana | Opinion 67A04-1606-DR-1312 | March 3, 2017               Page 1 of 6
                                           Case Summary
[1]   Caleb Riggen (“Father”) and Tammy Riggen (“Mother”) were once married,

      and have one child between them (“Child”). After the marriage was dissolved,

      Father petitioned to modify custody of Child. The trial court initially granted

      Father’s petition. Subsequently, the trial court granted Mother’s motion to

      correct error, thereby denying Father’s petition. Father now appeals, raising

      two issues, which we consolidate and restate as whether the trial court abused

      its discretion in granting Mother’s motion to correct error.


[2]   We reverse and remand with instructions.



                             Facts and Procedural History
[3]   In 2014, Father’s and Mother’s marriage was dissolved, with Mother having

      physical custody of Child. Father later petitioned to modify custody. The trial

      court held a hearing on Father’s petition, during which it heard testimony from

      Child’s guardian ad litem (the “GAL”) and took judicial notice of the GAL’s

      report. On February 16, 2016, the trial court granted Father’s petition.


[4]   On March 2, 2016, Mother filed a motion to correct error and to stay the order.

      Mother alleged that the trial court erred in making its findings, and contended

      that there was insufficient evidence supporting the order. Mother also argued

      that “the GAL’s report was so flawed it should carry little if any weight” (App.

      Vol. II at 30), and suggested that the GAL further investigate.



      Court of Appeals of Indiana | Opinion 67A04-1606-DR-1312 | March 3, 2017   Page 2 of 6
[5]   The trial court entered a stay of its order, set a hearing on Mother’s motion to

      correct error, and requested that the GAL conduct further investigation. The

      GAL complied and filed a supplemental report, after which the trial court held

      a hearing on Mother’s motion. Following the hearing, the trial court entered an

      order granting Mother’s motion and denying Father’s petition. The order did

      not provide a reason for granting Mother’s motion.


[6]   This appeal ensued.



                                      Standard of Review
[7]   At the outset, we note that Mother has not filed a brief. When an appellee fails

      to submit a brief, we need not undertake the burden of developing an argument

      on the appellee’s behalf. Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758

      (Ind. 2014). Instead, “we will reverse the trial court’s judgment if the

      appellant’s brief presents a case of prima facie error.” Trinity Homes, LLC v.

      Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Prima facie error in this context is

      defined as, “at first sight, on first appearance, or on the face of it.” Id. (internal

      quotation marks and citation omitted).


[8]   Father appeals from the grant of Mother’s motion to correct error. We review a

      trial court’s ruling on a motion to correct error for an abuse of discretion.

      Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). In so doing, we afford

      the trial court’s decision “a strong presumption of correctness.” Id. (internal

      quotation marks omitted) (citing Walker v. Pullen, 943 N.E.2d 349, 351 (Ind.


      Court of Appeals of Indiana | Opinion 67A04-1606-DR-1312 | March 3, 2017      Page 3 of 6
       2011)). However, by granting Mother’s motion to correct error, the trial court

       effectively denied Father’s petition to modify custody. Thus, the context and

       circumstances of the underlying petition are relevant to our review.


[9]    Here, Father petitioned to modify a custody order. Under Indiana Code

       section 31-17-2-21, a court may not modify a child custody order unless (1)

       modification is in “the best interests of the child” and (2) there is a “substantial

       change” in one of several factors that a court may consider in initially

       determining custody. The party seeking modification of a custody order “bears

       the burden of demonstrating [that] the existing custody should be altered.”

       Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). This “‘more stringent

       standard’ is required to support a change in custody”—as opposed to an initial

       custody determination—“because ‘permanence and stability are considered best

       for the welfare and happiness of the child.’” Id. (quoting Lamb v. Wenning, 600

       N.E.2d 96, 98 (Ind. 1992)). Moreover, “there is a well-established preference in

       Indiana ‘for granting latitude and deference to our trial judges in family law

       matters.’” Id. (quoting In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993).

       “Appellate judges are not to reweigh the evidence nor reassess witness

       credibility, and the evidence should be viewed most favorably to the judgment.”

       Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).


[10]   Additionally, because the grant of Mother’s motion to correct error effectively

       denied Father’s petition to modify the custody order, Father appeals from a

       negative judgment. On appeal from a negative judgment, we do not reverse the

       judgment of the trial court unless it is contrary to law. Comm'r, Dep't of Envtl.

       Court of Appeals of Indiana | Opinion 67A04-1606-DR-1312 | March 3, 2017    Page 4 of 6
       Mgmt. v. RLG, Inc., 755 N.E.2d 556, 559 (Ind. 2001). We will reverse the

       judgment only if the evidence leads to but one conclusion and the trial court

       reached the opposite conclusion. Id.



                                    Discussion and Decision
[11]   Father contends that the trial court abused its discretion in granting Mother’s

       motion to correct error because the trial court “failed to articulate any reasons

       whatsoever for why it granted Mother’s motion.”1 (Appellant’s Br. at 12.) Trial

       Rule 59(J) provides that whenever a court grants relief on a motion to correct

       error, the court “shall specify the general reasons” for granting relief. We note

       that the trial court’s obligation to specify “general reasons” under Trial Rule

       59(J) is not the same as the trial court’s obligation to enter “special findings”

       when it sets aside a jury verdict and orders a new trial. See T.R. 59(J).


[12]   Here, the trial court provided no explanation for its decision to grant corrective

       relief, contrary to Trial Rule 59(J). Were this case before us with an appellee’s




       1
         Father raises other issues, but they are not dispositive. One challenge is to the form of Mother’s motion.
       Father contends that because Mother anticipated a supplemental GAL report, the motion was based on
       evidence outside the record and required an affidavit under Trial Rule 59(H). We disagree because Mother
       did not introduce evidence through the motion itself. Father also argues that the trial court improperly
       admitted evidence, but Father did not object to the admission of the evidence and has therefore waived this
       argument. See Bogner v. Bogner, 29 N.E.3d 733, 740 (Ind. 2015) (noting the “general principle that objections
       not contemporaneously raised are waived”). Last, Father argues that the evidence was sufficient to support
       the trial court’s initial order. To the extent Father is arguing that the trial court impermissibly changed its
       mind after entry of judgment, we note that the trial court was entitled to do so. See Hubbard v. Hubbard, 690
       N.E.2d 1219, 1221 (Ind. Ct. App. 1998) (“Trial Rule 59 . . . provides the court, on its own motion to correct
       error or that of any party, the ability to alter, amend, modify or even vacate its decision following the entry of
       final judgment.”). To the extent Father is challenging the denial of his petition, we do not reach this
       argument because our resolution of the dispositive issue leads us to vacate the trial court’s order and remand.

       Court of Appeals of Indiana | Opinion 67A04-1606-DR-1312 | March 3, 2017                              Page 5 of 6
       brief, we might conclude that the error was harmless. See Pickett v. Pickett, 470

       N.E.2d 751, 756 (Ind. Ct. App. 1984) (determining that the trial court’s failure

       to specify “general reasons” under Trial Rule 59(J) was harmless error).

       However, Father has directed us to prima facie error. Under these

       circumstances, we are constrained in our review and therefore vacate the trial

       court’s order granting Mother’s motion to correct error. On remand, we

       instruct the trial court, when considering the motion to correct error, to comply

       with Trial Rule 59.



                                                Conclusion
[13]   The trial court abused its discretion when it granted Mother’s motion to correct

       error without providing a reason for doing so, contrary to Trial Rule 59(J).


[14]   Reversed and remanded.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 67A04-1606-DR-1312 | March 3, 2017   Page 6 of 6
