Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                  Nov 26 2014, 9:44 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            APPELLEE, PRO SE:

HEATHER L. PERKINS DENNISON                        TIFFANY STEVENSON
Crawfordsville, Indiana                            Anderson, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

AARON ROGERS,                                      )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )       No. 54A01-1401-JP-30
                                                   )
TIFFANY STEVENSON,                                 )
                                                   )
       Appellee-Respondent.                        )


                  APPEAL FROM THE MONTGOMERY CIRCUIT COURT
                       The Honorable John A. Rader, Special Judge
                            Cause No. 54C01-1006-JP-170


                                       November 26, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

      Appellant/Petitioner, Aaron Rogers (“Father”), appeals the trial court’s order

modifying his parenting time with his minor child, T.R., and awarding sole legal custody

of T.R., to T.R.’s mother, Appellee/Respondent, Tiffany Stevenson (“Mother”).

Previously, Father had shared joint legal custody of T.R. with Mother, and Mother had

held primary physical custody. However, the trial court awarded Mother sole legal

custody based on its conclusion that there had been a substantial change in circumstances

in Mother’s and Father’s ability to cooperate and based on its conclusion that granting

Mother sole legal custody was in T.R.’s best interests. The trial court also modified

Father’s parenting time with T.R. to every other weekend.

      On appeal, Father argues that the trial court abused its discretion by: admitting

evidence he considers hearsay at the custody modification hearing; granting Mother sole

legal custody of T.R.; and modifying Father’s parenting time. We conclude that the

evidence Father challenges was collateral, and, therefore, its admission is not a ground

for reversal. We further conclude that the trial court did not abuse its discretion in

determining that awarding Mother sole legal custody was in T.R.’s best interests or in

modifying Father’s parenting time to accommodate T.R.’s preschool schedule.

      We affirm.

                                        ISSUES

      1. Whether the trial court abused its discretion in admitting evidence.

      2. Whether the trial court abused its discretion in granting Mother sole
         custody of T.R.


                                           2
      3. Whether the trial court abused its discretion in modifying Father’s
         parenting time with T.R.

                                        FACTS

      Mother and Father (collectively, “the Parents”) are the parents of T.R., born in

May of 2010. On October 13, 2010, the trial court issued an order establishing Father’s

paternity and granting the Parents joint legal custody of T.R., with Mother having

primary physical custody. The trial court also granted Father visitation pursuant to the

Indiana Parenting Time Guidelines (“Parenting Time Guidelines”) and ordered Father to

obtain health insurance for T.R. through his employer.

      By November of 2010, Father was supposed to have two ten-hour visits with T.R.

according to the Parenting Time Guidelines, which coincided with his days off work.

However, Mother allowed him overnight parenting time with T.R. for approximately half

of every week. Partially on this basis, Father filed a motion to modify custody and his

parenting time on August 26, 2011. He argued that he already had custody of T.R. for

half of the week and therefore should be granted primary physical custody. He also

claimed that Mother’s life was unstable because she had “moved several times, had

several boyfriends, changed jobs, and left [T.R.] with [Father] for extended periods of

time.” (App. 5).

      On September 15, 2011, the trial court held a hearing on the motion. At the

hearing, Mother testified that she had only moved three times since November 2010; had

held steady employment at the International House of Pancakes until she left her job to

move home with her parents; had only had two steady boyfriends in the previous year;


                                            3
had no plans to move from her parents’ home; was looking for work; and provided T.R.

with adequate care.

          In an order entered on September 21, 2011, the trial court denied Father’s motion,

finding that there was insufficient evidence that there had been a substantial change in

circumstances warranting a change in physical custody. The trial court reasoned that

“[w]hile [Mother] has moved several times since the entry of the decree, and has had job

and relationship changes, there is no proof that these changes have adversely affected the

physical or emotional wellbeing of the child.” (App. 6). Nevertheless, the trial court

increased Father’s parenting time, ordering that he should have overnight visits with T.R.

on his second and third days off work.1 The trial court also ordered Mother to get T.R. a

new social security card in Father’s last name and to give the card to Father so that he

could obtain health insurance for T.R.

          Subsequently, Mother had multiple changes in her relationships and living

situations. Between January of 2012 and April of 2013, she had five boyfriends. 2 She

and T.R. moved in with one of those boyfriends in January or February of 2012. They

lived there until April, when they moved to Mother’s mother’s (“Grandmother’s”) house

in Frankton, Indiana. In September, Mother began dating a man named Kent Justice

(“Justice”). She and T.R. moved in with Justice in January of 2013, and Mother became

pregnant that month.



1
    Father’s work schedule alternates so that he works for four days and then has four days off work.
2
 Father and Mother dispute this number, so this total reflects the number of people Mother admits to
dating.
                                                      4
       Mother’s pregnancy disrupted her work schedule and Father’s visitation. Her

doctor ordered her to stay on bed rest, and, as a result, she refused to drive to meet Father

for parenting time, although she did not object to T.R. being picked up by him. She also

missed two and a half months of work. However, she gave birth to a daughter in

September 2013, and resumed work by mid-October. As of the time of the hearing, she

was working at least eight to sixteen hours per week, mostly on the weekends. Her

yearly employee evaluation rated her as meeting expectations in ten areas and exceeding

expectations—the highest rating—in thirty-nine areas. She was also recognized as “a

good employee.” (Petitioner’s Ex. 8, 98).

       In the middle of October 2013, Mother and Justice ended their relationship.

Mother and T.R. stayed with Mother’s friend for two days and then moved back to

Grandmother’s house on October 29, 2013. Thereafter, Mother and T.R. moved in with

Mother’s stepfather. At the time of the hearing, Mother and T.R. were still living at her

stepfather’s house.

       At the end of the summer of 2013, Mother enrolled T.R. in a Head-Start preschool

(“Head Start”). She did not discuss enrolling T.R. in Head Start with Father and would

not include Father’s information in T.R.’s records. Father, believing that T.R. was smart

and did not need preschool, would not take him. He considered Head Start a daycare

rather than a school. As a result, Mother started denying Father visitation on the days

that T.R. had preschool, as well as the days before T.R. had preschool since she believed




                                             5
that Father would not return him for school.3 Under Head Start’s attendance policy, a

child may only miss four consecutive days of school. Children must also attend 85% of

the days school is in session every month. Because Mother denied Father visitation

whenever T.R. had preschool, Father missed several weeks of visitation.

          In April of 2013, Father filed another motion to modify custody and parenting

time. He argued that Mother had denied him visitation; regularly refused to transport

T.R. for visitation; and had failed to provide T.R.’s updated social security card as

ordered by the trial court. Father requested the trial court to modify custody to award

him primary physical custody, modify parenting time, and order Mother to show cause

for why she should not be held in contempt for her violation of the court’s orders.

          On December 10, 2013, the trial court held a hearing on Father’s motion. At the

hearing, Father testified to the difficulty he had experienced picking up T.R. from Mother

for visitation on multiple occasions. He also stated that he thought T.R. would have

“more of a chance” if he had custody because his life was more stable than Mother’s.

(Tr. 62). Specifically, he had recently bought a house, had worked for the same employer

since he was in high school, and was dating the same woman that he had been dating

since T.R. was born.

          Father also alleged that Mother did not take suitable care of T.R. He claimed that

on one occasion Mother had not properly administered T.R.’s medication for a breathing

condition. On another occasion, Father took T.R. to the hospital, and Mother met him

there and refused to admit T.R. Father claims that he called the police and that the police

3
    Father lived two hours away from Mother.
                                               6
officer also recommended that Mother admit T.R. Mother denied all of these claims. As

for the emergency room incident, it later turned out that T.R. had bronchitis.

       During the hearing, both parties submitted copies of their past text message

conversations. Father also submitted screen shots of Mother’s Facebook page in support

of a proposition that she led a partying lifestyle. In addition to the text messages, Mother

proffered the following exhibits: (1) the Head Start Program’s Parent Handbook (“Parent

Handbook”); (2) Head Start’s Family Conference teaching evaluation of T.R. (“teaching

evaluation”); (3) Head Start’s three-year-old screening of T.R.; (4) Head Start’s

Attendance Regulations; and (5) a letter from Kay Lark (“Lark”), the manager of Family

Services at Head Start (“Lark’s letter”) (collectively, “Head Start Exhibits”). Father

objected to all of these proffered exhibits on the basis of hearsay. In addition, he claimed

that the teaching evaluation was not supported by a business records affidavit and that

Lark’s letter was equivalent to attempting to testify outside of court. The trial court

admitted the exhibits, stating that: “Presumably the Court can consider the hearsay just

as there [are] numerous incidents of hearsay in the testimony of [Father’s] witnesses as

well as the Exhibits.” (Tr. 68).

       On December 23, 2013, the trial court issued an order awarding Mother sole legal

custody of T.R. and granting Father parenting time every other weekend, starting on

Thursdays when he does not have to work. It reasoned: “The parties testify regarding

the various conflicts involving the prior Joint Custody Order. Given the inability of each

of the parties to cooperate sufficiently to make joint custody a viable option, the Court

finds that sole custody should be awarded.” (App. 16). The trial court also found that

                                             7
“Father [had] failed to provide evidence of probative value that his complaints regarding

[Mother] [had] adversely affected [T.R.].” (App. 17). Instead, the trial court concluded

that awarding Mother sole custody was in T.R.’s best interests, noting Mother’s work

evaluations and volunteer efforts at Head Start. The court also commented that Mother

had “selected the Head Start Program to provide educational and social benefits for the

preschool age child, and this [was] a reasonable choice.” (App. 17). Father now appeals.

We will provide additional facts as necessary.

                                        DECISION

       Father raises three arguments on appeal. He argues that the trial court abused its

discretion by:   (1) admitting Mother’s Head Start Exhibits because they contained

hearsay; (2) awarding Mother sole legal custody of T.R.; and (3) modifying Father’s

parenting time. We will address each of these arguments in turn.

1. Admission of Evidence

       First, Father argues that the trial court abused its discretion in admitting Mother’s

proffered Head Start Exhibits. He argues that they contained inadmissible hearsay and

that the trial court improperly based its award of custody on the contents of the exhibits.

       Hearsay is a statement, other than one made by the declarant while testifying at a

trial or hearing, offered to prove the truth of the matter asserted. Ind. Evidence Rule

801(c). It is generally inadmissible. Evid. R. 802. However, errors in the admission of

evidence, including hearsay, are to be disregarded as harmless unless they affect the

substantial rights of a party. City of Indianapolis v. Taylor, 707 N.E.2d 1047, 1055 (Ind.

Ct. App. 1999), trans. denied. Admission of hearsay is not grounds for reversal where it

                                             8
is merely cumulative of other evidence admitted.          Id.   Because the admission and

exclusion of evidence falls within the trial court’s sound discretion, we will review a

challenge to the admission of evidence only for an abuse of discretion. Reed v. Bethel, 2

N.E.3d 98, 107 (Ind. Ct. App. 2014). An abuse of discretion occurs when the trial court’s

decision is clearly against the logic and effect of the facts and circumstances before it. Id.

We will not reverse the trial court’s admission of evidence absent a showing of prejudice.

Id.

       Regardless of whether the trial court erred in admitting the Head Start Exhibits, we

will not reverse because the exhibits were cumulative of Mother’s testimony. They

demonstrated that Head Start had an attendance policy, Head Start was educational in

nature, and T.R. had thrived there as a result of his attendance. Mother addressed each of

those factors in her testimony. She mentioned that T.R. was not allowed to miss more

than four days in a row and that there was an eighty-five percent attendance policy. She

also testified that:

       I have refused [Father’s] visits numerous times because [T.R.] has school.
       [Father] has said plenty, plenty of times that . . . [T.R.’s] school is just a
       daycare. That it is not school. [T.R.] is smart. I mean, he’s learned. He
       has friends at school. Yes, I have moved [], but I’m not going to take him
       out of his school because that’s, he likes it there. He loves it there. His
       friends are there.

(Tr. 70-71). Finally, she told the court that she put T.R. in Head Start so that he could

“learn.” (Tr. 79).

       As Mother testified to these matters, the Head Start Exhibits were merely

cumulative of her testimony and are not a grounds for reversal. Further, we note that in a


                                              9
bench trial, “the harm from any evidentiary error is lessened . . . if not completely

annulled.” Roser v. Silvers, 698 N.E.2d 860, 864 (Ind. Ct. App. 1998). In bench trials,

we presume that the court disregarded inadmissible evidence and rendered its decision

solely on the basis of relevant and probative evidence. Id. Based on these factors, we

conclude that the trial court’s admission of the Head Start’s Exhibits did not affect

Father’s substantial rights and is not a ground for reversal.

2. Custody

       Next, Father challenges the trial court’s decision to award Mother sole legal and

physical custody of T.R. He argues that the evidence he presented at trial demonstrated

that awarding Mother sole legal custody was not in T.R.’s best interests. Specifically,

Father claims Mother has had multiple boyfriends in the past year and has lived in

multiple locations; she also regularly refused Father visitation; and she failed to provide

him with T.R.’s social security card as the trial court had ordered. In addition, Father

alleges that Mother improperly administered T.R.’s medication for a breathing condition

on one occasion, refused to admit T.R. to the emergency room on another occasion, and

changed T.R.’s doctor without consulting him. According to Father, T.R. is always

exhausted when he comes to visit.

       Based on these factors, Father argues that the trial court should have awarded him

sole custody. He contends that, in contrast to Mother, he can provide T.R. with a stable

environment and properly care for him.         In support of this claim, he reiterates his

testimony that he recently bought a house, has had the same job since high school, and is



                                             10
dating the same person he has been dating since T.R. was born. He also notes that

Mother acknowledged that he is a good father.

       A child custody determination falls within the sound discretion of the trial court,

and we will not disturb its determination on appeal unless it has abused its discretion.

Bowman v. Bowman, 686 N.E.2d 921, 925 (Ind. Ct. App. 1997). A trial court abuses its

discretion if it renders a decision that is clearly against the logic and effect of the facts

and circumstances before the court or the reasonable inferences to be drawn therefrom.

White v. White, 655 N.E.2d 523, 531 (Ind. Ct. App. 1995). In determining whether a trial

court has abused its discretion, we will not reweigh the evidence nor reassess witness

credibility, and we consider only the evidence that supports the trial court’s decision.

Bowman, 686 N.E.2d at 925.

       INDIANA CODE § 31-14-13-6 governs the modification of child custody.                It

provides that 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 (1) or more of

the factors that the court may consider under [INDIANA CODE § 31-14-13-2].” In turn,

INDIANA CODE § 31-14-13-2 provides:

       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

                                             11
                     (C) any other person who may significantly affect the child’s
                          best interests.
              (5) The child’s adjustment to home, school, and 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
                  ....

       In support of his argument, Father cites to Paternity of M.J.M., 766 N.E.2d 1203

(Ind. Ct. App. 2002). In Paternity of M.J.M, the trial court modified physical and legal

custody of M.J.M. and awarded both to M.J.M.’s father on the basis that M.J.M.’s mother

had not provided M.J.M. with a stable living environment. M.J.M.’s mother had moved

with M.J.M. between four and six times in the previous two years; had become a foster

care provider for three additional children; and had “experienced difficulties in her

personal relationships that seem[ed] to have affected her ability to care for M.J.M.” Id. at

1209-10. As a result, the trial court found that it “appear[ed] that [M.J.M.’s mother]

placed her own needs before the needs of M.J.M.[,] and [M.J.M.’s mother’s] personal

issues, coupled with the additional foster children in her home, substantially changed the

circumstances triggering a modification of custody.” Id. at 1210. M.J.M.’s father, on the

other hand, was married, had worked the same job for twelve years, and had a stable

home for M.J.M. Id. Father claims that the circumstances in Paternity of M.J.M. are

analogous to the circumstances here and that the trial court, likewise, should have

modified custody in his favor.

       While we agree that some of the facts of Paternity of M.J.M. are analogous to the

circumstances here, we do not find it persuasive because there is no evidence that Mother


                                            12
has adversely affected T.R. the way that M.J.M.’s mother had adversely affected M.J.M.

Father alleges that Mother failed to take care of T.R. by improperly administering his

medicine and by refusing to admit him to the emergency room, but—in addition to the

fact that Mother disputes those claims—Father has not shown that T.R. suffered

adversely as a result. Likewise, Father has not shown that Mother’s various moves or

relationship changes have adversely affected T.R. We have previously held that “[a]

custodial parent’s relocation, alone, will not support a modification of custody; rather, it

is the effect of the move upon the child that renders a relocation substantial or

inconsequential—i.e., against or in line with the child’s best interests . . . .” Green v.

Green, 843 N.E.2d 23, 27 (Ind. Ct. App. 2006). Here, there is no evidence that Mother’s

moves and relationship changes have adversely affected T.R., other than Father’s self-

serving testimony that T.R. is tired when he comes to visit. It is apparent that the trial

court did not find this testimony credible since it denied Father’s motion, and we may not

reassess credibility on appeal. See Bowman, 686 N.E.2d at 925.

       Instead, it is clear that the trial court properly considered the factors enumerated in

INDIANA CODE § 31-14-13-2 for determining a child’s best interests. It found that the

Parents’ interactions warranted sole custody because they could not cooperate sufficiently

to share joint custody. Further, consistent with INDIANA CODE § 31-14-13-2(5), the trial

court considered T.R.’s adjustment to his school and found that Mother had “selected the

Head Start Program to provide educational and social benefits for the preschool age child,

and this is a reasonable choice. . . . [T]he evidence provided shows that the Head Start

Program the child is enrolled in has an educational curriculum and performance goals.”

                                             13
(App. 17). In light of these findings, we conclude that the trial court did not abuse its

discretion in awarding Mother sole legal custody.

3. Parenting Time

       Finally, Father argues that the trial court abused its discretion in modifying his

parenting time from two overnights on his second and third nights off of work to every

other weekend. He argues that neither he nor Mother requested a modification of his

parenting time and that the modification was, thus, an abuse of discretion. He further

notes that the modification does not take into account his work schedule and how it will

impact his ability to spend time with T.R. during the parenting time.

       When reviewing a trial court’s determination of a parenting time issue, we will

grant latitude and deference to our trial courts, reversing only when the trial court has

abused its discretion. Gomez v. Gomez, 887 N.E.2d 977, 983 (Ind. Ct. App. 2008). No

abuse of discretion occurs if there is a rational basis supporting the trial court’s

determination. Id. Therefore, “on appeal it is not enough that the evidence might support

some other conclusion, but it must positively require the conclusion contended for by

[the] appellant before there is a basis for reversal. Id. (quoting Duncan v. Duncan, 843

N.E.2d 966, 969 (Ind. Ct. App. 2006), trans. denied). We will not reweigh the evidence

or judge the credibility of witnesses. Id. In all parenting time issues, courts are required

to give foremost consideration to the best interest of the child. Id.




                                             14
       In support of his argument, Father cites to Green v. Green, 889 N.E.2d 1243 (Ind.

Ct. App. 2008).4 In Green, the trial court denied the father’s request to modify custody

and then modified his parenting time, despite the fact that neither party had raised the

issue of parenting time. Id. at 1252. On appeal, we found that the trial court had abused

its discretion in modifying the father’s parenting time absent either party’s request for a

modification. Id. at 1253. However, the circumstances in Green are inapposite.

       Here, Father mentioned parenting time in his motion for modification of custody,

which was explicitly titled “Motion to Modify Custody, Parenting Time, and Child

Support and Motion for Rule to Show Cause.” (App. 8) (emphasis added). In the text of

the motion, Father “respectfully request[ed] the Court [to] modify custody, parenting

time[,] and child support in this matter.” (App. 8) (emphasis added). Parenting time was

also a primary topic during the trial court’s hearing, because Father emphasized that his

parenting time conflicted with T.R.’s Head Start schedule. As a result, we conclude that

Father did raise the issue of parenting time.

       Further, the trial court had a rational basis for modifying Father’s parenting time

so that it was not dependent on Father’s work schedule. Father has a rotating work

schedule where he works for four days and then has four days off. The trial court’s 2007

award of parenting time took into account this schedule and allowed Father overnight

visitation on his second and third days off of work. Due to the rotating nature of Father’s

work, however, those days would clearly change every week.                     Father emphasized

repeatedly at the hearing that T.R.’s preschool schedule regularly conflicted with his
4
 This is our opinion on appeal after the second remand of Green v. Green, 843 N.E.2d 23, 27 (Ind. Ct.
App. 2006), which we previously cited.
                                                 15
visitation, which was based on his work schedule. Since the trial court found that

Mother’s desire to have T.R. attend Head Start was a “reasonable choice” to provide him

with “educational and social benefits,” it was rational for the trial court to modify

Father’s parenting time so that it would not conflict with Head Start. (App. 17); see

Gomez, 887 N.E.2d at 983 (stating that no abuse of discretion occurs if there is a rational

basis for a trial court’s decision). Accordingly, we conclude that the trial court did not

abuse its discretion in modifying Father’s parenting time.

       Affirmed.

NAJAM, J., and BAILEY, J., concur.




                                            16
