                                                                        FILED
                                                                    Jul 23 2020, 8:44 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
Anthony J. Saunders                                         Joel E. Harvey
New Castle, Indiana                                         New Castle, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Virginia Madden,                                            July 23, 2020
Appellant-Respondent,                                       Court of Appeals Case No.
                                                            19A-JP-2630
         v.                                                 Appeal from the Henry Circuit
                                                            Court
Robert Phelps,                                              The Honorable Kit C. Dean Crane,
Appellee-Petitioner.                                        Special Judge
                                                            Trial Court Cause No.
                                                            33C01-1105-JP-16



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020                           Page 1 of 27
                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent, Virginia Madden (Mother), appeals the trial court’s

      Order modifying custody of the parties’ minor child, B.P., in favor of Appellee-

      Petitioner, Robert Phelps (Father), and ordering Mother to pay attorney’s fees

      and parenting coordinator fees.


[2]   We affirm in part and reverse in part.


                                                      ISSUES
[3]   Mother presents the court with four issues, which we restate as the following

      three:


               (1) Whether the trial court’s award of sole legal custody and
                  primary physical custody to Father was clearly erroneous;


               (2) Whether the trial court’s contempt finding against Mother
                  and award of $1000 in attorney’s fees to Father was clearly
                  erroneous; and


               (3) Whether the trial court’s order that Mother pay $3,645.50 in
                  parenting coordinator fees was clearly erroneous.


                       FACTS AND PROCEDURAL HISTORY
[4]   On January 20, 2011, B.P. was born to Mother and Father (collectively,

      Parents). Parents, B.P., and Mother’s two children from a prior relationship

      resided at a home on Prairie Knoll Drive in New Castle, Indiana, which had

      been left in trust to Mother’s two older children by their deceased father. After


      Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020           Page 2 of 27
      Parents terminated their relationship, Mother continued to reside at the Prairie

      Knoll home for a time, and Father resided in Bloomington, Indiana. On April

      9, 2012, Father’s paternity was established by entry of a judgment that provided

      that Parents would share joint legal custody but Mother would have primary

      physical custody of B.P. At the age of three, B.P. was diagnosed with a

      language disorder and developmental delay. When he was four years old, B.P.

      was diagnosed with autism spectrum disorder. It was recommended at that

      time that B.P. receive more intensive school services than he was currently

      receiving, that he continue with outpatient occupational and speech therapy,

      and that Parents receive education and support to assist with consistent

      parenting. B.P. has an individualized education plan at his public school. His

      therapists have recommended that he engage in group activities outside of

      school to assist in his social development.


[5]   Parents’ attempts to co-parent B.P. were not without conflict. Between April

      26, 2012, and January of 2018, Father filed three contempt motions and a rule

      to show cause motion against Mother. During the same period, Mother filed

      motions to modify child support and to mandate counseling for B.P. as well as

      two motions seeking to have Father held in contempt and to have his parenting

      time modified. Parents agreed to the use of a parenting coordinator. One

      coordinator was engaged but withdrew when Mother did not pay her portion of

      the coordinator’s fees.


[6]   On February 5, 2018, after further litigation between Parents, the trial court

      entered an order appointing Dr. Erica Kane (Dr. Kane) as a parenting

      Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020        Page 3 of 27
      coordinator whose mandate was to assist Parents to resolve their issues without

      court intervention. Dr. Kane was to make binding recommendations for the

      parties if they were unable to agree, but she was not to “serve as a custody

      evaluator in the case” or “offer a binding recommendation for a change in

      [B.P.’s] primary physical residence[.]” (Appellant’s App. Vol. II, p. 47).

      Parents were to pay equal shares of Dr. Kane’s fees, but the trial court’s

      appointment order also provided that Dr. Kane had


               the discretion to report to the [c]ourt that [she] desires to charge
               either party separately for individual contacts with that party or
               joint contacts made necessary by that party’s behavior. The
               [c]ourt shall have the power to review, reallocate and enforce the
               payment of the fees of the [parenting coordinator].


      (Appellant’s App. Vol. II, pp. 43-44).


[7]   The current phase of litigation between Parents began on March 16, 2018,

      when Father filed a verified notice of intent to relocate to New Castle to take

      advantage of an employment opportunity and to be closer to B.P. Father’s

      notice also included a request to modify parenting time to two-week blocks

      spent at each parent’s home. Mother objected to Father’s proposed

      modification of parenting time. The trial court referred the matter to

      mediation, but mediation was never scheduled.


[8]   In the spring of 2018, Parents could not agree on whether B.P. should

      participate in baseball and soccer. As per the parenting coordinator order, Dr.

      Kane issued a binding recommendation that B.P. should participate because


      Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020           Page 4 of 27
       those activities would assist in his socialization. B.P. attended all practices and

       games when he was in Father’s care, but Mother did not take B.P. to sports

       when he was with her.


[9]    In May of 2018, Mother was notified by the trustees of the trust holding the

       Prairie Knoll home that she would be required to vacate within thirty days.

       Mother moved out of the Prairie Knoll home in June of 2018 but did not file a

       notice of intent to relocate with the trial court. In June of 2018, the Department

       of Child Services (DCS) substantiated a finding of neglect against Mother when

       B.P. sustained bruising on his neck after one of Mother’s other children shoved

       him while he was in Mother’s care. Parents participated in an informal

       adjustment which was extended until January of 2019 because Mother did not

       confirm her current address and had home inspections done at three different

       homes during the adjustment. The closeout report for the informal adjustment

       noted that Parents “will not agree on how to raise [B.P.] other than he does

       need services to help him thrive.” (Exh. Vol., p. 73). Mother and Father have

       reported each other to DCS on eleven occasions.


[10]   Parents disagreed about Father’s summer 2018 parenting time. Father had

       timely submitted his proposed dates, but Mother disagreed with his selected

       schedule. In July of 2018, Dr. Kane made a binding recommendation that

       Parents follow Father’s selected schedule for summer parenting time. On

       August 1, 2018, Father filed a contempt motion against Mother alleging that

       Mother had not followed Dr. Kane’s binding recommendations on summer

       parenting time, Mother had moved from the Prairie Knoll home without filing

       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020         Page 5 of 27
       the required notice of intent to relocate, and Mother failed to communicate

       with him. On August 28, 2018, the trial court found Mother in contempt for

       refusing Father summer parenting time and ordering her to serve thirty days in

       jail. The trial court allowed Mother to purge herself of her contempt by

       providing Father with thirty-four days of consecutive parenting time. The trial

       court also ordered Mother to pay $750 to Father’s attorney.


[11]   On January 22, 2019, Father filed a motion for contempt and mediation seeking

       payment of uninsured dental expenses Mother had been previously ordered to

       pay, mediation of his March 16, 2018, parenting-time modification motion, and

       payment of the $750 in attorney’s fees Mother had been ordered to pay after she

       had been found in contempt. The parties engaged in mediation. On March 18,

       2019, the mediator filed the Mediated Partial Agreement (MPA) with the trial

       court that provided, inter alia, that Parents would communicate with each other

       via email on decisions for B.P. regarding routine health care, education,

       religion, and extracurricular activities. If one parent failed to object to the

       other’s proposed decision on one of these issues within forty-eight hours, it was

       considered an agreement. If no agreement was reached on a healthcare or

       religious decision, either parent could petition the trial court for a hearing. Any

       unresolved disagreement regarding extracurricular activities was to be referred

       to the parenting coordinator for a binding recommendation. Mother was also

       to provide Father within ten days with a current utility bill held in her name for

       the Prairie Knoll home as well as proof of her payment of that utility bill. The

       MPA provided that “Mother states that she is residing full time at [the Prairie


       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020           Page 6 of 27
       Knoll home].” (Appellant’s App. Vol. II, p. 68). The MPA provided that

       “physical custody, parenting time, child support and 2018 uninsured health

       expenses” were the issues remaining to be resolved by the trial court.

       (Appellant’s App. Vol. II, p. 69). Mother signed the MPA, which was

       subsequently approved by the trial court. Mother did not provide Father with

       the utility bill and proof of payment required by the MPA.


[12]   In May of 2019, Father moved to a home in New Castle that was located

       approximately eight miles from his previous home. Father notified his attorney

       of his move in April of 2019, but his attorney did not file a notice of intent to

       relocate with the trial court. Father’s move did not result in any change in

       B.P.’s care. Father did not alert Mother to his change of address, which

       resulted in Mother calling law enforcement when she attempted to retrieve B.P.

       at Father’s old address and was informed that Father had moved.


[13]   Also in May of 2019, Father contacted Mother about B.P.’s participation in

       summer soccer and baseball. Mother responded via email that she would have

       to consult with her attorney about the matter. Mother never provided Father

       with further input on B.P.’s summer sports, so Father enrolled him and

       provided Mother with the schedule. Mother did not take B.P. to summer sports

       when he was in her care. On May 6, 2019, Father filed a verified motion “to

       address issues regarding custody and parenting time of [B.P.] and other issues

       described in this Petition.” (Appellant’s App. Vol. II, p. 72).




       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020          Page 7 of 27
[14]   Parents could not agree regarding Mother’s desire that B.P. participate in

       Conduct Curb, which is a school for children who have severe autism. B.P.

       was receiving psychotherapy. Neither B.P.’s therapist nor his social worker

       recommended that B.P. participate in the intensive treatment offered by

       Conduct Curb.


[15]   On June 25, 2019, Father filed a belated notice of intention to relocate with the

       trial court providing notice that he had moved to his new residence in New

       Castle. On June 26, 2019, Mother filed a contempt motion against Father

       alleging that he had not followed the required procedures for making medical

       and extracurricular activity decisions and had moved without filing a proper

       notice of intent to relocate. Mother also filed a motion seeking an order

       compelling B.P.’s attendance at Conduct Curb as well as a motion to have Dr.

       Kane removed as parenting coordinator. On June 27, 2019, Father filed a

       contempt motion against Mother for failing to provide him with the previously-

       ordered utility bill and proof of payment for the Prairie Knoll home.


[16]   On July 3, 2019, the trial court held a hearing on Mother’s motion to have Dr.

       Kane removed as parenting coordinator. Dr. Kane testified that she had a

       personal bias against Mother as a result of the allegations made by Mother in

       her removal petition and that “I don’t think it’s my competence that’s in

       question, I think that it’s [Mother] who has created this.” (Tr. Vol. II, p. 22).

       On July 9, 2019, the trial court entered an order allowing Dr. Kane to withdraw

       from the case and directing her to file her final report with the court.



       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020          Page 8 of 27
[17]   On August 5, 2019, Dr. Kane submitted her final report to the trial court.

       Mother had not been communicative with Dr. Kane regarding confirming her

       address, regarding her non-compliance with binding recommendations,

       inquiries about balances due, scheduling mediation, and her reasons for wishing

       to enroll B.P. in Conduct Curb. It was Dr. Kane’s opinion that B.P. did not

       meet the diagnostic criteria for autism spectrum disorder, that he was

       responding very well to outpatient treatment, and that he did not require the

       intensive level of intervention offered by Conduct Curb. Dr. Kane observed

       that Mother had not participated in B.P.’s therapy for over a year, despite being

       asked by his therapist several times. Dr. Kane had spoken with B.P.’s previous

       therapist who believed that B.P.’s symptoms were the result of “high levels of

       anxiety related to chronic parental conflict and Attention Deficit Disorder.”

       (Appellant’s App. Vol. II, p. 89). It was Dr. Kane’s opinion that B.P. was more

       than capable of learning in a general education classroom and that attending an

       intensive intervention school like Conduct Curb when it was not necessary

       could be demeaning for B.P. Dr. Kane observed that, given that Parents record

       of bypassing her and reporting issues directly to law enforcement, DCS, or

       filing motions with the court, it was unlikely that they would comply with

       parenting coordination in the future without imposition of consequences for

       non-compliance. Dr. Kane observed that Father had been arrested for domestic

       battery against his then-current partner in March of 2018, but that the charges

       were dismissed after Father participated in an intervention class and an online

       domestic violence course. Father was also receiving mental health services

       through the Veteran’s Administration. Dr. Kane opined that

       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020        Page 9 of 27
                [g]iven Mother’s history of contempt of court and refusal to
                comply with recommendations, binding recommendations,
                orders from the court, as well as this [parenting coordinator’s],
                the former [parenting coordinator’s], DCS’S, and [Youth
                Services Bureau’s] instructions, [B.P.’s] needs may be best met
                with Father as the primary custodian.


       (Appellant’s App. Vol. II, p. 91). Dr. Kane recommended that Mother pay the

       full balance owed to her in the amount of $3,645.50 within thirty days of the

       filing of the report.


[18]   On August 14, 2019, the trial court held a hearing on all pending motions.

       Prior to beginning testimony, the trial court reviewed the issues to be addressed

       at the hearing. Joint legal custody was not mentioned as an issue. Father asked

       for primary custody of B.P. On cross-examination, Father confirmed that

       Parents had joint legal custody, that as primary physical custodian Mother

       made the majority of decisions about B.P., and that “[l]egally, I want to switch

       that, so I can make decisions based on . . . him.” (Tr. Vol. III, p. 86). Father

       understood that, as joint custodians, he and Mother were supposed to work

       together on decisions about medical appointments and extracurricular activities,

       but that they only worked well together when Mother got what she wanted.

       When asked by Mother’s counsel, “but my client, even if you get what you

       want, would still have joint legal custody rights, correct?” Father responded, “I

       believe so, yes, . . . As I understand it.” (Tr. Vol. III, p. 98). Father testified

       that Mother would frequently fail to respond to his emails or would respond

       with a blank email. Mother would not answer Father when he asked about

       exercising parenting time on Fridays when he was off work and she was
       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020            Page 10 of 27
       working, as provided for in the MPA. Father had contacted Conduct Curb and

       learned that they recommended thirty-five hours of therapy per week. Father

       renewed his request that Mother be held in contempt for not providing him

       with a utility bill in her name and proof of payment for the Prairie Knoll home

       as directed by the court-approved MPA. Father requested $1000 in attorney’s

       fees as a sanction.


[19]   Mother acknowledged in her testimony that she did not provide Father with the

       required Prairie Knoll utility bill and proof of payment. Mother agreed it is in

       B.P.’s best interests to participate in sports and confirmed that she lived close to

       the location of his soccer and baseball practices. Mother testified that she

       believed that Father had taken B.P. to have three cavities filled unnecessarily

       just so that he could incur dental bills she would be required to pay. Mother did

       not present any testimony regarding what she believed she owed Dr. Kane in

       fees.


[20]   On October 21, 2019, the trial court entered its Order on All Pending Matters in

       which it awarded primary physical and sole legal custody of B.P. to Father.

       The trial court found that a modification of physical custody to Father was

       merited because it was in B.P.’s best interests and because there had been a

       substantial and continuing change in several relevant factors, including Father’s

       desire to have custody, Mother’s ability to act in B.P.’s best interests, Mother’s

       ability to exercise good judgment, and Mother’s housing stability. The trial

       court noted Father’s arrests for domestic battery with concern but found that

       Father was participating in mental health counseling, appeared to be acting in

       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020         Page 11 of 27
       B.P.’s best interests, was consistently employed, and was capable of providing

       for B.P.’s care. The trial court also noted that “Dr. Kane’s report to the [c]ourt

       dated August 1, 2019, acknowledges that [B.P.’s] needs may be ‘best met’ with

       Father having primary physical custody.” (Appellant’s App. Vol. II, p. 31).

       The trial court found that it was no longer in B.P.’s best interests that Parents

       share joint legal custody, observing that they were “unable to communicate and

       cooperate regarding [B.P.]” (Appellant’s App. Vol. II, p. 32).


[21]   The trial court further found that Father had moved from his last residence

       without filing the required notice of intent to relocate as alleged by Mother in

       her contempt motion. The trial court admonished Father to strictly comply

       with the notice requirement in the future but chose not to sanction Father

       because Father had alerted his attorney to the move and because Mother had

       also moved without filing the required notice. The trial court found Mother in

       contempt for failing to comply with the provision of the MPA requiring her to

       provide a current utility bill in her name for the Prairie Knoll home and proof of

       payment. The trial court further found that Mother knew at the time that she

       signed the MPA that she could not provide what was required and that her

       actions “in connection with this provision represent a bad faith effort to mislead

       Father and the [c]ourt.” (Appellant’s App. Vol. II, p. 35). As a sanction, the

       trial court ordered Mother to pay Father’s attorney $1000. The trial court also

       ordered Mother to pay the $3,645.50 that Dr. Kane indicated in her August 1,

       2019, report was due to her.


[22]   Mother now appeals. Additional facts will be provided as necessary.

       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020        Page 12 of 27
                                DISCUSSION AND DECISION
                                                       I. Custody

                                               A. Standard of Review

[23]   Mother appeals the trial court’s modification of legal and physical custody in

       favor of Father. This court recently stated our standard of review in custody

       matters as follows:


                We review custody modifications for an abuse of discretion with
                a preference for granting latitude and deference to our trial judges
                in family law matters. This is because it is the trial court that
                observes the parties’ conduct and demeanor and hears their
                testimony firsthand. We will not reweigh the evidence or judge
                the credibility of the witnesses. Rather, we will reverse the trial
                court’s custody determination only if the decision is clearly
                against the logic and effect of the facts and circumstances or the
                reasonable inferences drawn therefrom. [I]t is not enough that
                the evidence might support some other conclusion, but it must
                positively require the conclusion contended for by appellant
                before there is a basis for reversal. It is not impossible to reverse
                a trial court’s decision regarding child custody on appeal, but
                given our deferential standard of review, it is relatively rare.


       Hecht v. Hecht, 142 N.E.3d 1022, 1028-29 (Ind. Ct. App. 2020) (cleaned up).


[24]   Neither party requested that the trial court enter special findings pursuant to

       Indiana Trial Rule 52(A). When a trial court enters findings of fact and

       conclusions of law sua sponte, those findings control only with respect to the

       issues they cover, and the general judgment standard applies to issues upon

       which no findings were entered. Ahls v. Ahls, 52 N.E.3d 797, 800 (Ind. Ct. App.

       2016). Where the trial court entered findings, we consider whether the findings
       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020           Page 13 of 27
       are supported by the evidence and whether the findings support the judgment.

       Id. We will only disregard a finding if it is clearly erroneous, meaning that there

       are no facts or inferences in the record to support it. Id. Matters falling under

       the general judgment standard are reviewed without reweighing evidence or

       considering witness credibility and may be affirmed upon any theory consistent

       with the evidence. Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008).


                                                  B. Legal Custody

[25]   Mother’s first challenge to the trial court’s award of sole legal custody to Father

       is that the issue was not properly before the trial court. Mother argues that

       “[t]he parties had not agreed that the issue of joint legal custody would be

       contested and there was no written motion requesting a modification of legal

       custody.” (Appellant’s Br. p. 9). Father responds that Parents put legal custody

       at issue by filing open-ended requests to modify custody.


[26]   In support of his argument, Father relies on Higginbotham v. Higginbotham, 822

       N.E.2d 609, 610 (Ind. Ct. App. 2004), in which mother and father had joint

       legal custody of their child, with primary physical custody resting with mother.

       Id. Father subsequently filed a petition to modify custody, and the parties

       agreed to a custody evaluation. Id. The evaluator recommended that custody

       remain the same, with the addition of a parenting coordinator. Id. However,

       the evaluator further recommended that if the trial court decided to grant sole

       legal custody to one parent, it should be mother. Id. at 612. At the hearing on

       father’s motion, the parties stipulated to the admission of the custody

       evaluation and agreed with its recommendations. Id. After the trial court

       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020         Page 14 of 27
       awarded sole legal and physical custody to mother, father appealed, arguing

       that the trial court had erred in modifying legal custody because the parties had

       not placed legal custody at issue. Id. In affirming the trial court, we noted that

       father’s motion had requested an “open-ended” modification of custody after

       an evaluation and that the parties had agreed to the evaluator’s

       recommendations about legal custody. Id. As such, we found the issue to be

       “squarely before the trial court.” Id.


[27]   Here, an examination of the substance of the entirety of Parents’ motions

       reveals that their dispute pertained only to the physical custody of B.P. Legal

       custody was never mentioned by either party. Although Father is correct that,

       as in Higginbotham, he and Mother filed motions addressing “custody”,

       Higginbotham is factually distinguishable because Father and Mother did not

       agree to abide by any third-party’s custody evaluation. (Appellant’s App. Vol.

       II, pp. 52, 54, 72). Other factors also lead us to conclude that the issue was not

       properly before the trial court. The MPA listed “physical custody, parenting

       time, child support and 2018 uninsured health expenses” as the only issues

       remaining to be addressed by the trial court. (Appellant’s App. Vol. II, p. 69).

       Notably, at the beginning of the August 15, 2019, hearing on all pending

       matters, the trial court and the parties did not identify legal custody as a matter

       to be addressed.


[28]   Neither do we find that Parents consented to try the issue of joint legal custody

       during the hearing. “[I]ssues raised by the pleadings can be altered by the

       evidence adduced at trial where the parties have impliedly or expressly

       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020        Page 15 of 27
       consented to new issues being tried.” Bailey v. Bailey, 7 N.E.3d 340, 344 (Ind.

       Ct. App. 2014). Although Father asserted during the hearing that he wanted to

       legally change who made most of the decisions about B.P., when Mother’s

       counsel observed that Mother would still have joint legal custody of B.P. even if

       Father received primary physical custody, Father affirmed that was his

       understanding. Thus, Mother did not believe that legal custody was in play,

       and Father did not indicate that he sought sole legal custody. Neither party

       submitted proposed findings of fact and conclusions requesting sole legal

       custody.


[29]   It has been long-established that trial courts may not sua sponte order a change

       of custody. See, e.g., State ex rel. Davis v. Achor, 225 Ind. 319, 327, 75 N.E.2d

       154, 157 (1947)). On the facts and circumstances before us, we conclude that

       the trial court abused its discretion when it modified legal custody without a

       request from either party. Given that we reverse the portion of the trial court’s

       Order granting sole legal custody to Father, we do not address Mother’s

       argument that insufficient evidence supported the trial court’s modification of

       legal custody.


                                                C. Physical Custody

[30]   Mother also contends that the trial court’s Order modifying primary physical

       custody of B.P. in favor of Father was clearly erroneous. Indiana Code section

       31-14-13-6 provides that, after a custody order has been issued in a paternity

       proceeding, a trial court may not modify custody unless modification is in the

       best interests of the child and there is a substantial change in one or more of the

       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020          Page 16 of 27
factors that the trial court may consider under Indiana Code section 31-14-13-2

(Section 2), including:


         (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.


         (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.




Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020            Page 17 of 27
[31]   Here, the trial court concluded that the grant of primary physical custody to

       Father was appropriate because it was in B.P.’s bests interests and there had

       been a substantial and continuing change “in multiple relevant factors,”

       including Father’s desire to have primary physical custody, Mother’s repeated

       and continuing refusal to act in B.P.’s best interests, and Mother’s unstable

       housing situation. (Appellant’s App. Vol. II, p. 31). The trial court also found

       that Mother’s evasiveness and dishonesty to the trial court about the fact that

       she was no longer living at the Prairie Knoll home raised serious concerns

       about her judgment. These conclusions were supported by the trial court’s

       findings and evidence in the record that Mother ignored Dr. Kane’s binding

       recommendations about 2018 summer parenting time and B.P.’s participation

       in summer sports, Mother desired to enroll B.P. in Conduct Curb despite the

       fact that B.P.’s therapist and social worker advised against it, Mother failed to

       pay two parenting coordinators, she failed to pay her share of B.P.’s medical

       expenses, she had home evaluations at three separate homes during the DCS

       informal adjustment, and she lied to the MPA mediator, Father, and the trial

       court about continuing to live at Prairie Knoll. The trial court’s best interests

       conclusion was further supported by its findings based on evidence in the record

       that Father had been consistently employed, was capable of providing for B.P.,

       owned his own home, and had ensured that B.P. arrived at school on time.

       Because the trial court’s findings and conclusions were supported by evidence

       in the record, we cannot say that they were clearly erroneous. See Ahls, 52

       N.E.3d at 800.



       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020        Page 18 of 27
[32]   Mother argues otherwise because she contends that the trial court only found

       that one factor expressly listed in Section 2 had changed, namely, Father’s

       desire for custody, and that there was no substantial change in that factor

       because Father had always wanted custody. Section 2 provides that a trial

       court “shall determine custody in accordance with the best interests of the

       child” in light of “all relevant factors, including [the enumerated factors].”

       (Emphasis added). Thus, the trial court must consider what is in the best

       interests of the child, and the factors enumerated in the statute are not

       exclusive. Here, the trial court found a substantial and continuing change in

       one listed statutory factor, Father’s desire to have custody, as well as three non-

       enumerated factors, namely, Mother’s failure to act in B.P.’s best interests, her

       poor judgment, and her unstable housing situation. In addition, custody was

       established by a paternity order in 2012, and Father filed his first request to

       change custody on March 16, 2018, with his notice to relocate. Therefore,

       there was a substantial change in the one statutorily-enumerated factor found

       by the trial court.


[33]   Mother also challenges the trial court’s finding that Dr. Kane recommended

       primary physical custody rest with Father. Mother contends that the trial court

       should not have considered Dr. Kane’s recommendation because “[b]y offering

       a custody evaluation, she acted on her bias against . . . Mother and violated her

       own charge from the [c]ourt in making a custody evaluation.” (Appellant’s Br.

       pp. 12-13). We find this argument to be unpersuasive for at least two reasons.

       First, the trial court’s order appointing Dr. Kane merely provided that she was


       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020           Page 19 of 27
       not allowed to “serve as a custody evaluator in the case” or “offer a binding

       recommendation for change in [B.P.’s] primary physical residence,” not that

       she could offer no opinion on the subject at all. (Appellant’s App. Vol. II, p.

       47). There is no indication in the record that Dr. Kane acted as a formal

       custody evaluator in this matter or that the trial court considered the

       recommendation contained in Dr. Kane’s report to be binding on it or the

       parties. In addition, the same trial court judge presided over both the hearing

       on Mother’s petition to remove Dr. Kane and the final hearing in this matter.

       The trial court judge was, therefore, aware of the interaction of the parties with

       Dr. Kane and what Dr. Kane had said at the hearing about her personal bias

       against Mother. It was within the trial court’s discretion to credit or discredit

       Dr. Kane’s recommendation regarding physical custody in light of any potential

       bias on Dr. Kane’s part and, as we are not allowed to reweigh the evidence,

       Mother’s argument is contrary to our standard of review. See Hecht, 142 N.E.3d

       at 1029.


[34]   Mother also draws our attention to evidence in the record that Father had

       moved six times since paternity had been established, Father had a pattern of

       domestic violence that the trial court should have taken into account, and the

       trial court disregarded Father’s testimony “about his ongoing mental health

       treatments for anxiety and his belief that he has Post Traumatic Stress

       Disorder.” (Appellant’s Br. p. 12). These arguments are also contrary to our

       standard of review in that crediting them would entail consideration of evidence

       that does not support the trial court’s determination and/or a reweighing of the


       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020         Page 20 of 27
       evidence. See Hecht, 142 N.E.3d at 1029. Mother’s argument regarding

       Father’s mental health also mischaracterizes the record, as Father did not testify

       at the August 15, 2019, hearing that he believed he had PTSD, and he

       specifically denied that he had been formally diagnosed with PTSD. Given the

       ample evidence supporting the trial court’s findings and conclusions, Mother

       has failed to meet her burden of persuasion on appeal to show that the evidence

       “positively require[d] the conclusion” that she have primary physical custody of

       B.P. See id.


                                                     II. Contempt

[35]   Mother next challenges the trial court’s grant of Father’s motion seeking to

       have her held in contempt for failing to produce a utility bill with proof of

       payment in her name for the Prairie Knoll home and the trial court’s award of

       $1000 in attorney fees. “Civil contempt is failing to do something that a court

       in a civil action has ordered to be done for the benefit of an opposing party.”

       P.S. v. T.W., 80 N.E.3d 253, 256 (Ind. Ct. App. 2017). Trial courts have the

       inherent power to punish litigants in order to maintain the dignity of the court,

       secure obedience to process and rules, rebuke interference with the orderly

       conduct of business, and to punish unseemly behavior. City of Gary v. Major,

       822 N.E.2d 165, 169 (Ind. 2005). Whether a party is in contempt is a matter

       left to the sound discretion of the trial court, and we will reverse a trial court’s

       finding of contempt only if no evidence or inferences exist in the record to

       support it. P.S., 80 N.E.3d at 256.




       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020          Page 21 of 27
[36]   The gravamen of Mother’s argument regarding the trial court’s contempt

       finding is that it was unjust for her to be held in contempt for failing to file the

       required notice of relocation when Father did the same thing and was not held

       in contempt. However, Mother’s argument is based on a mischaracterization of

       the trial court’s ruling. The trial court did not find her in contempt for failing to

       file a notice to relocate; rather, it held her in contempt for failing to produce to

       Father the utility bill and proof of payment in her name for the Prairie Knoll

       home as she was required to do once the trial court approved the parties’ MPA

       and for entering into the MPA knowing that she could not produce those

       things. The trial court found that “Mother’s actions in connection with this

       provision [of the MPA] represent a bad faith effort to mislead Father and the

       [c]ourt.” (Appellant’s App. Vol. II, p. 35). Mother does not address the

       evidence in the record supporting the trial court’s findings regarding her

       knowing violation of the MPA. As such, she has failed to persuade us that the

       trial court acted outside of its discretion by finding her in contempt. See P.S., 80

       N.E.3d at 256.


[37]   As to the trial court’s award of $1000 in attorney’s fees to Father, Mother

       argues that this portion of the trial court’s Order was clearly erroneous because

       there was no evidence to support an award in that amount. Regardless of

       consideration of economic resources, once a party is found in contempt, the

       trial court has the inherent authority to compensate the aggrieved party for

       losses and damages resulting from another’s contemptuous actions, including

       an award of attorney’s fees. Scoleri v. Scoleri, 766 N.E.2d 1211, 1222 (Ind. Ct.


       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020          Page 22 of 27
       App. 2002). “The determination of damages in a contempt proceeding is

       within the trial court’s discretion, and we will reverse an award of damages

       only if there is no evidence to support the award.” City of Gary, 822 N.E.2d at

       172.


[38]   We agree with Mother that there was no evidence in the record to support the

       trial court’s award of $1000 in attorney’s fees to Father. Although Father

       testified that he sought an award of $1000 in fees for his contempt motion, he

       presented no evidence to support that request such as an attorney’s fee affidavit,

       testimony establishing his attorney’s fee schedule and the time and expenses

       incurred on the contempt motion, or even testimony that he had been billed

       that amount for services rendered in connection with the contempt motion.

       Because no evidence supported the award, we find it to be an abuse of the trial

       court’s discretion and clearly erroneous. See id.; see also Ahls, 52 N.E.3d at 800.

       Accordingly, we vacate the portion of the trial court’s Order awarding Father

       $1000 in attorney’s fees in relation to his contempt motion.


                                                 III. Dr. Kane’s Fees

[39]   Mother argues that the portion of the trial court’s Order directing her to pay

       $3,645.50 is clearly erroneous because “there is no evidence to support this

       disproportionate award of parenting coordinator fees[.]” (Appellant’s Br. p.

       14). However, Dr. Kane’s final report was filed with the trial court without

       objection by either party. In her report, Dr. Kane recommended to the trial

       court that Mother pay her the full balance owed for her services in the amount



       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020         Page 23 of 27
       of $3,645.50. Therefore, there was evidence in the record to support the trial

       court’s Order, and it is not clearly erroneous. See Ahls, 52 N.E.3d at 800.


[40]   Mother also argues that the trial court’s Order that she pay $3,645.50 while

       ordering Father to pay only $593.75 in parenting coordinator fees was clearly

       erroneous because it contravened the parenting coordinator appointment order

       directing Parents to split those fees evenly. However, Mother’s argument

       overlooks the fact that the parenting coordinator appointment order also

       provided that Dr. Kane had the authority to “charge either party separately for

       individual contacts with that party or joint contacts made necessary by that

       party’s behavior.” (Appellant’s App. Vol. II, p. 43). Therefore, Dr. Kane had

       the authority to charge Mother more than Father. Because the trial court’s

       Order was within the parameters of its previous order appointing Dr. Kane, its

       determination that Mother should pay $3,645.50 in fees was supported by the

       record and was, therefore, not clearly erroneous. See Ahls, 52 N.E.3d at 800.


                                               CONCLUSION
[41]   Based on the foregoing, we conclude that the issue of legal custody was not

       properly before the trial court and that its award of $1000 in attorney’s fees to

       Father was clearly erroneous. Accordingly, we vacate those portions of the trial

       court’s Order. We also conclude that the trial court’s grant of primary physical

       custody, its finding that Mother was in contempt, and its order that Mother pay

       $3,645.50 in parenting coordinator fees were not clearly erroneous.


[42]   Affirmed in part and reversed and vacated in part.

       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020        Page 24 of 27
[43]   Mathias, J. concurs


[44]   Tavitas, J. concurs in result with separate opinion




       Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020   Page 25 of 27
                                                   IN THE
            COURT OF APPEALS OF INDIANA
      Virginia Madden,                                            Court of Appeals Case No.
                                                                  19A-JP-2630
      Appellant-Respondent,

               v.

      Robert Phelps,
      Appellee-Petitioner.




      Tavitas, Judge, concurring in result


[1]   I concur in the result reached by the majority; however, notwithstanding

      Mother’s failure to object below, [1] I write separately regarding Dr. Kane’s

      recommendation that “[the Child’s] needs may be best met with Father as the

      primary custodian[.]” Appellant’s App. Vol. II p. 91.


[2]   Not only did Dr. Kane exceed the scope of her duties, as outlined in the trial

      court’s order, but she also became an advocate. When parties work with a

      court-appointed parenting coordinator, they expect to be aided by a neutral

      official in resolving their disputes. The parties do not expect the parenting

      coordinator to simultaneously assess the parties for the court or to advocate




      [1]
         Mother did not object to Dr. Kane’s recommended change in custody by filing a petition for a hearing in
      the manner prescribed by the trial court’s order appointing Dr. Kane. See Appellant’s App. Vol. II pp. 44-45.

      Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020                               Page 26 of 27
regarding such matters as custody. This is the first step down a slippery slope

because such conflation of roles can sabotage the parent coordination process.




Court of Appeals of Indiana | Opinion 19A-JP-2630 | July 23, 2020      Page 27 of 27
