                                                                         FILED
                                                                     Apr 27 2020, 7:48 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
Cody Cogswell                                               Dawn E. Wellman
Cogswell & Associates                                       Allen Wellman McNew Harvey,
Fishers, Indiana                                            LLP
                                                            Greenfield, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In Re the Paternity of A.J.;                                April 27, 2020

Coby Lee Jent,                                              Court of Appeals Case No.
                                                            19A-JP-1045
Appellant-Petitioner,
                                                            Appeal from the Madison Circuit
         v.                                                 Court
                                                            The Honorable G. George Pancol,
Jerrilee Cave (Jent),                                       Judge
                                                            The Honorable Kevin M. Eads,
Appellee-Intervenor,
                                                            Magistrate
and                                                         Trial Court Cause No.
                                                            48C02-1709-JP-283
Elizabeth Stevens,

Appellee-Respondent.



Najam, Judge.




Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020                           Page 1 of 17
                                         Statement of the Case
[1]   Coby Lee Jent (“Father”) appeals the trial court’s judgment awarding custody

      and support to Jerrilee Cave (“Mother”) with respect to their minor child, A.J.

      (“the Child”). Father raises the following four restated issues for our review:


               1.       Whether the trial court clearly erred when it awarded
                        custody of the Child to Mother.


               2.       Whether the trial court’s support order is clearly
                        erroneous.


               3.       Whether the trial court abused its discretion when it
                        concluded that Mother had not committed spoliation of
                        evidence.


               4.       Whether the court erred when it did not order Mother to
                        pay Father’s attorney’s fees.


[2]   We affirm.


                                   Facts and Procedural History
[3]   During their marriage, Father and Mother used a surrogate to become the

      parents of the Child. Thereafter, Father and Mother dissolved their marriage,

      and, through a separate paternity proceeding, they sought to establish their

      respective custody and support rights and obligations with respect to the Child.

      Following several fact-finding hearings, the paternity court found in relevant

      part as follows:



      Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020          Page 2 of 17
         11. From early July[] 2016[] until February 22, 2017, [Mother]
         had exclusive care of [the Child] without the benefit of any type
         of court order. She continued to have the care of [the Child] by
         successive temporary guardianship orders until September 20,
         2017.


         12. In a September 20, 2017, guardianship hearing, Father
         presented the paternity affidavit . . . executed immediately
         following [the Child’s] birth. The September 20 hearing resulted
         in an order transferring temporary care of [the Child] to Paternal
         Grandmother . . . and setting an emergency hearing in the
         paternity case for September 27, 2017.


                                              ***


         14. Following the emergency hearing . . . , an Interim Custody
         Order was entered on September 28, 2017, which granted
         temporary custody to [Father]. . . .


                                              ***


         17. Father and [Mother] raised [the Child], and although their
         family knew that a surrogate had been used, and that [the Child]
         was not conceived [with Mother], the parties and their families
         looked upon [Mother] as [the Child’s] mother and they all held
         [Mother] out to the world as such. [Mother] was referred to by
         all as “mother.”


         18. Following [the Child’s October 2011] birth, [Mother] took
         time off from her veterinary practice until March[] 2012[] to care
         for her. Thereafter, as both Father and [Mother] worked most
         weekends, Paternal Grandparents had [the Child] for increasing
         amounts of time on the weekends until it came to be the practice



Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020        Page 3 of 17
         that Paternal Grandparents had [the Child] throughout most
         weekends.


         19. Shortly after birth, [the Child] was diagnosed with . . . an
         enzyme deficiency condition which made it difficult for her to
         digest fats. Father only attended one of [the Child’s] numerous
         medical appointments. [Mother] took [the Child] to all of these
         appointments, including those at Riley’s Children’s Hospital.
         [Mother] also did the feedings.


         20. The parties also agree . . . that [the Child] knew and
         considered [Mother] as her [m]other . . . .


         21. From 2014 on, Father spent at least nearly half of each
         week, and at times more, at a game preserve business in Ohio in
         which the parties were involved as part owners. During his time
         at the preserve, Father generally did not telephone or otherwise
         maintain any contact with [the Child], even when he was away
         on [the Child’s] birthdays in 2014 and 2015.


         22. Although childcare providers were used while [Mother]
         worked, and although Father had involvement in [the Child’s
         care], and although Paternal [G]randparents also had regular
         time with, and care of[,] [the Child], the court concludes that the
         clear weight of the evidence is that [Mother] was the primary
         caregiver for [the Child] from birth until the earlier referenced
         September 20, 2017, order.


         23. Father and [Mother] attempted reconciliation in
         September or October, 2016, and Father returned home.
         However, the reconciliation effort failed in less than two weeks
         and Father again left the home. Once again, Father left [the
         Child] in [Mother’s] care.



Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020          Page 4 of 17
         24. . . . [I]t is clear that Father left [the Child] in [Mother’s]
         care in July[] 2016[] and again in October[] 2016. He moved to
         Tennessee in November[] 2016, and [the Child] remained with
         [Mother]. Despite his pleadings, Father did not vigorously
         pursue substantive steps to change that until [the] September 20,
         2017, order.


         25. In November[] 2016, Father relocated to Tennessee,
         seeking employment there and taking up residence with Kristi
         Myers, with who[m] Father had begun a relationship a few
         months prior which precipitated the end of his marriage to
         [Mother]. Father has since married Ms. Myers.


         26. Despite past work experience in auto body repair and
         other job history, Father was initially employed in Tennessee for
         $10.00 an hour. In March[] 2017, he obtained employment with
         a correctional facility, has advanced there, and now earns $17.91
         an hour. He currently works 7:00 P.M. to 7:00 A.M. on a
         rotating schedule of two days on and three days off with an
         additional mandatory day every two weeks. He also works
         overtime.


         27. In reviewing all of the evidence, the court concludes that
         Father has abdicated much of [the Child’s] care to his current
         wife for the period he has had custody following the September
         28, 2017[,] order. The court further concludes and finds that this
         follows a pattern whereby Father has historically deferred to
         others as the primary caregivers for [the Child]. Prior to his
         current wife, Father mostly deferred to [Mother] and his parents
         during the marriage and he certainly . . . deferred to [Mother]
         from July[] 2016 until September[] 2017.


         28. Bother Father and [Mother] have filed various contempt
         affidavits . . . . The court concludes that both parties have been
         less than fully compliant with the respective visitation orders in

Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020            Page 5 of 17
         these actions. Although the court could parse the allegations and
         counter-allegations and the evidence thereon ad na[usea]m, the
         court concludes that Father has been less compliant
         than . . . [Mother]. Perhaps one of the clearer examples is
         Father’s interference with [Mother’s] telephone visits and
         Father’s failure to implement the video chat provision of
         [Mother’s] visitation. The court finds Father’s explanation of
         why he could not provide any video chat ability as extremely
         weak and simply not creditable.


         29. Father is the only blood relative that [the Child] has in
         Tennessee. Paternal uncle and Paternal Grandparents reside
         close to the former marital home, as do [Mother’s] parents and
         [Mother’s] adult son, with who[m] [the Child] also has long and
         close ties. [The Child] has a relationship with each of these
         adults; and in particular, she has an especially close relationship
         with Paternal Grandparents. From a very early age until Father’s
         and [Mother’s] separation, [the Child] had spent most weekends
         with Paternal Grandparents.


                                              ***


         36. The court concludes that [the Child] was prompted by
         someone in Father’s [current] home to level disturbingly serious
         allegations against [Mother] which [the Child] later recanted.
         Whether the prompting was by Father, the current Mrs. Jent, or
         with the participation of both, is unknown. There is no
         evidentiary corroboration for the allegations, some of which were
         the following:


                  A. That [Mother] had threatened to kill the current Mrs.
                  Jent’s minor son;


                  B. That [the Child] feared [Mother would kidnap her[;]


Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020           Page 6 of 17
                  C. That [the Child] was forced to sleep and shower with
                  [Mother] and an adult female friend[.]


         37. The current Mrs. Jent is [the Child’s] primary caregiver in
         Father’s home.


         38. The current Mrs. Jent is overwhelmingly the primary
         contact between Father’s household and [the Child’s] school in
         Tennessee.


         39. The court concludes that, although [Mother] is not [the
         Child’s] biological or adoptive Mother, from [the Child’s]
         perspective, [she] is Mother.


         40. The number of times that Father’s counsel and witnesses
         referred to [Mother] in these proceedings as “Mother” is also
         tellingly confirmatory that the people in [the Child’s] world
         perceive [Mother] in that role.


                                              ***


         42. The court credits [family counselor] Dr. [Jonni] Gonso’s
         trained and experienced observations. Among these were her
         interview observations of the respective parties with [the Child]
         where she noted a direct contrast between [the Child’s]
         interactions between her Father on the one hand and [Mother]
         on the other. Dr. Gonso found interaction between Father and
         [the Child] was largely absent of signs of affection whereas there
         was ample demonstration of affection between [the Child] and
         [Mother] as well as play interaction. Dr. Gonso also found
         indications that [the Child] had been coached from Father’s end.
         Based upon observations of Father and her interviews with him,
         Dr. Gonso found Father to lack “empathy” for [the Child].
         Basically, Father lacks an appreciation for the fact that [the

Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020          Page 7 of 17
         Child] is a separate person who has her own feelings and beliefs.
         The court draws further support for this opinion from Father’s
         testimony as he acknowledged that [the Child] knew [Mother] as
         her mother; yet, somehow, he maintains that [the Child] now
         does not even want to talk to [Mother] any more.


         43. For its own part, the court has been able to observe the
         demeanor of both Father and [Mother] extensively throughout
         the numerous hearings relating to these cases. The court noted
         for itself a certain unnatural detachment in Father’s demeanor
         throughout much of the proceedings. This is not to say that the
         court doubts Father’s love and care for [the Child]; the court has
         no doubts in that regard. But[] it does underscore the various
         witness[es’] testimonial observations, from [Mother], to childcare
         providers, to Dr. Gonso, that Father is likely not nearly as
         interactive with his daughter as is [Mother], and his and [the
         Child’s] demonstrative affections are not as frequent[] as they are
         between [the Child] and [Mother]. In short, Father is more
         remote as a parent and has historically allowed others to fill a
         more regular interactive role with [the Child].


         44. Father missed at least half of his visits prior to obtaining
         temporary custody. . . .


         45. Dr. Gonso’s professional opinion was that [Mother] is [the
         Child’s] “psychological parent” with who[m] she has primary
         attachment and that [Mother] is critical to [the Child’s] proper
         emotional development. Without [Mother], Dr. Gonso has
         opined that [the Child] would be at enhanced risk of developing
         problems in her own identity formation, difficulties in forming
         and having adult relationships, and developing trust in others.
         Dr. Gonso testified that it is well accepted that there is a
         hierarchy to the attachments that a child forms. Dr. Gonso’s
         opinion is that [the Child’s] primary attachment is to [Mother]
         and that the strength of [the Child’s] attachment to Father is to a
         lesser degree than the attachment she has with Paternal
Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020          Page 8 of 17
         Grandparents. The court gives due weight to Dr. Gonso’s
         observations and opinion.


         46. The court has deep concern should [the Child] be
         compelled to abandon her historic relationship with the woman
         she has always recognized as her mother.


         47. The court finds that both parties have acted in a manner
         that has put [the Child] in the middle of their disputes. However,
         [Mother’s] sins in this respect have been the lesser of the two. In
         the aggregate, the court finds that [Mother] has the far greater
         tendency than Father to put [the Child’s] interests first.


         48. Examples of Father’s failure to put [the Child] first are
         numerous: Father does not appear to recognize [the Child’s]
         perception of [Mother] as her de facto mother nor does he
         appreciate her need for that relationship to continue. He has
         acknowledged that he did not provide any type of support for his
         daughter during the time she was in [Mother’s] care. He twice
         separated from [Mother] and left [the Child] with [Mother] in the
         marital home and then took over a year after the initial
         separation, and almost a year after the final separation, before
         making any serious and concerted effort to obtain her. He has
         either actively participated, or sat passively by, while [the Child]
         was coached into making horrendous allegations against
         [Mother] which are without any evidentiary support and which
         allegations [the Child] subsequently recanted. He has not sought
         any counseling for [the Child] other than what limited counseling
         was available for free from her school. Father has pled a lack of
         sufficient finances for this[,] but[] Father has spent not a single
         dime of his own funds for any of these proceedings. Nor is there
         the prospect that he will have to pay anything as his parents
         appear to have paid his expenses as a gift. He has removed [the
         Child] to Tennessee, removed from other family with whom his
         daughter has significant relationships, especially Paternal
         Grandparents.
Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020          Page 9 of 17
               49. The court finds that [Mother] certainly has her faults. For
               example, the court credits the evidence as establishing that
               Father’s house, perhaps largely because of the efforts of the
               current Mrs. Jent, is neat and orderly. In contrast, [Mother’s]
               home is cluttered and not as tidy as Father’s. However, the court
               finds that the evidence shows this was also the state of the marital
               home during the time [Mother] and Father were together . . . .
               Further, the court concludes that both Father and [Mother] have
               displayed more than a few incidents of spitefulness and [the
               Child] has been in the middle of this. However, [Mother]
               appears to have made some improvements in reducing her spite
               whereas Father has not. [Mother] failed to diligently pursue
               adoption following [the Child’s] birth.


      Appellant’s App. Vol. 4 at 204-15.


[4]   In light of its findings, the court concluded in relevant part as follows:


               Indiana law recognizes the fundamental rights that parents have
               regarding their children[,] and, thus, there is a strong
               presumption that a parent should have custody of their child. . . .


               It is not at all easy for a non-parent to overcome this
               presumption; . . . to do so, they must establish, by clear and
               convincing evidence[,] that the child’s best interest requires that
               custody be with the non-parent. . . .


                                                    ***


               The court concludes that [Mother] has established, by clear and
               convincing evidence, that [the Child’s] best interest is that she be
               in [Mother’s] custody. This conclusion has not been drawn
               lightly. Again, the court is most mindful of the presumed
               primacy of Father’s parental claim to custody. In the end, the
               court concludes that Father has historically abdicated much of
      Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020             Page 10 of 17
         the parenting responsibilities to others, principally to [Mother]
         most of all. Currently, and most clearly, he has appeared to
         abdicate to his current wife. The emotional bond between [the
         Child] and [Mother] is one of mother and child, despite the fact
         that [Mother] is not legally mother. To sunder that bond holds
         palpably and potentially devastating consequences for this child.
         The potential damage to her emotional development and adverse
         consequences for her as an adolescent and as an adult are
         significant. Thus, the clear advantage in placing custody with
         [Mother] is the maintenance of [the Child’s] bond with the
         woman she knows as her “mother” and helping better secure [the
         Child’s] emotional development. [Mother] can also keep [the
         Child] in closer contact with her locally based Paternal
         Grandparents with whom she has a deep attachment.


                                              ***


         [Mother] has indicated that she is not seeking child support from
         Father. However, the court does not view it appropriate that
         there not be some measure of support. Father shall pay [Mother]
         child support of $75.00 per week . . . .


         Father requests sanctions for [Mother’s] redaction of materials
         from her Face[b]ook entries prior to producing those. [Mother]
         acknowledged that she did make redactions on the basis of one of
         her prior attorneys indicating that they did not want to see any
         “drama” on Face[b]ook. What inference is to be drawn from the
         redactions? The court concludes that the redactions would have
         likely shown more . . . unkind commentary about Father, the
         type that both parties have made about the other throughout their
         divorce.


         Father has requested attorney fees and expert expenses for
         [Mother’s] deletion of Facebook materials requested in
         production. Father advances a spoliation argument that is not

Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020       Page 11 of 17
                without some degree of merit. Both sides have alleged various
                violations by the other in support of fee requests . . . .


                Although both Father and [Mother] fell short of adhering to the
                visitation orders, Father more so than [Mother], the court will
                not make any contempt findings . . . . As for the respective
                requests for attorney fees and expenses, the court leaves each
                party to pay their own attorney’s fees and expenses. However,
                the court does order that Father reimburse [Mother] for
                $5,000.00 of Dr. Gonso’s fees . . . . In reading this decision, the
                court notes that Paternal Grandparents have paid all of Father’s
                legal costs and Father has paid none. Paternal Grandfather
                testified that the payment of these fees w[as] a gift to Father and
                they do not seek repayment.


      Id. at 215-19. This appeal ensued.


                                         Discussion and Decision
                                                 Issue One: Custody

[5]   On appeal, Father first asserts that the trial court erred when it ordered that

      Mother have custody of the Child. The court’s judgment on custody followed

      its entry of written findings of fact and conclusions thereon after an evidentiary

      hearing. 1 We review such judgments under our clearly erroneous standard.

      E.g., Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386

      (Ind. 2020) (per curiam). A judgment is clearly erroneous when the court’s

      findings of fact do not support its legal conclusions or when the legal




      1
          We compliment the trial court on the quality of its findings and conclusions.


      Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020                  Page 12 of 17
      conclusions do not support the ultimate decision. M.H. v. Ind. Dep’t of Child

      Servs. (In re Ma.H.), 134 N.E.3d 41, 45 (Ind. 2020). We do not reweigh the

      evidence or judge witness credibility, and we consider only the evidence and

      reasonable inferences therefrom that support the trial court’s judgment. Id.


[6]   Father asserts on appeal that, because he is the only biological parent of the

      Child in this matter, Mother’s evidence could not overcome the legal

      presumption that he should have custody. But Father does not suggest that the

      trial court applied an incorrect legal standard when it evaluated the appropriate

      custody arrangement here; he merely asserts that we should assess the evidence

      on appeal differently than how the trial court assessed it. We cannot do so. Id.


[7]   The controlling factor in custody determinations is the best interests of the

      child. See J.I. ex rel. K.I. v. J.H., 903 N.E.2d 453, 459-60 (Ind. 2009). The

      evidence most favorable to the trial court’s judgment supports its award of

      custody to Mother. For example, the evidence shows, as the trial court found,

      that Father routinely failed to put the Child first; he abdicated his parental role

      with her on numerous occasions, leaving that responsibility to, most notably,

      either his parents or Mother; he interfered with and refused to recognize

      Mother’s role in the Child’s life as the Child’s only known mother figure; and

      he either passively or actively permitted the Child to be instructed to levy

      unfounded and harmful accusations against Mother. Conversely, Mother is

      well bonded to the Child and vice versa; Mother has been engaged and active in

      the Child’s development; and awarding custody to Mother enabled the Child to



      Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020        Page 13 of 17
      maintain other important family relationships, especially with the paternal

      grandparents.


[8]   Further, we conclude that Father is estopped from his attempt to discount and

      disparage Mother’s relationship to the Child. In Levin v. Levin, the Indiana

      Supreme Court affirmed the opinion of this Court and held that father was

      estopped from denying that a child conceived through artificial insemination

      was a child of the marriage, stating that “[t]o hold otherwise would be unjust.”

      645 N.E.2d 601, 604-05 (Ind. 1994). The reasoning and holding in Levin apply

      with equal effect here. While Mother is not the biological or legal mother of the

      Child, the Child is nevertheless a child of this marriage. By agreement of the

      parties during the marriage the Child was conceived through the use of a

      surrogate. Mother should not be required to adopt the Child for her status as

      the Child’s “mother” to be recognized. We cannot say that the trial court’s

      assessment of the evidence is clearly erroneous, and we affirm its custody

      decision.


                                               Issue Two: Support

[9]   Father next asserts that the trial court erred when it ordered him to pay child

      support because, according to Father’s one-paragraph argument on this issue in

      his sixty-one-page brief, there is no evidence of either party’s income in the

      record. But the court’s findings expressly took notice of and incorporated the

      dissolution record. See Appellant’s App. Vol. 4 at 201. And Father presents no

      argument on appeal that the dissolution record was insufficient to demonstrate

      the parties’ respective incomes. See Ind. Appellate Rule 46(A)(8)(a).
      Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020       Page 14 of 17
       Accordingly, we conclude that Father has failed to present argument supported

       by cogent reasoning and appropriate citations to the incorporated record on this

       issue, and, thus, he has not carried his burden of persuasion to show the court

       erred in the award of support.


                                             Issue Three: Spoliation

[10]   Father also asserts that the trial court abused its discretion when it declined to

       draw a more serious negative inference against Mother for her deletion of some

       Facebook posts. As we have explained:


                Spoliation is a particular discovery abuse that involves the
                intentional or negligent destruction, mutilation, alteration, or
                concealment of physical evidence. We vest trial courts with wide
                discretion in dealing with discovery matters and will reverse a
                trial court’s decision regarding discovery only for an abuse of
                discretion. We will find an abuse of discretion only if it is clearly
                against the logic and circumstances before the court, or when the
                trial court has misinterpreted the law.


       N. Ind. Pub. Serv. Co. v. Aqua Envtl. Container Corp., 102 N.E.3d 290, 300-01 (Ind.

       Ct. App. 2018) (citations and quotation marks omitted).


[11]   According to Father, his attorney spent $1,937 to prove Mother’s spoliation of

       the Facebook posts, and the trial court “failed to properly weigh [Mother’s]

       intentional spoliation” of that evidence. Appellant’s Br. at 51-52. The trial

       court recognized that Father’s spoliation claim was “not without some degree

       of merit.” Appellant’s App. Vol. 4 at 219. The court simply concluded that the

       deleted Facebook posts would have not been significant and instead “would


       Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020          Page 15 of 17
       have likely shown more . . . unkind commentary about Father, the type that

       both parties have made about the other throughout the divorce.” Id. The trial

       court’s assessment was within the logic and effect of the facts and circumstances

       before it. The court was not obliged to be more heavy-handed in its treatment

       of this issue, and we cannot say the court abused its discretion.


                                          Issue Four: Attorney’s Fees

[12]   Last, Father asserts that the court abused its discretion when it declined to order

       Mother to pay Father’s attorney’s fees. According to Father, the evidence

       shows that his parents’ payment of his attorney’s fees was a loan that he

       intended to repay, not a gift. Father continues that he was entitled to some

       offset of those fees from Mother because his costs were “due in large part to

       [Mother’s] intentional false statements to the trial court that [the Child] was a

       child born of the marriage,” because Mother “had falsely testified that her

       Facebook data had not been altered,” and “[i]n consideration of [Mother’s]

       scurrilous conduct throughout the scope of all the underlying consolidate[d]

       causes . . . .” Appellant’s Br. at 58.


[13]   We think the record most favorable to the trial court’s judgment makes it clear

       that Father is in no position to critique Mother’s behavior. Although there is

       statutory authority for an award of attorney’s fees, parties are first presumed to

       pay their own attorney’s fees and such an award lies within the sound discretion




       Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020       Page 16 of 17
       of the dissolution court. 2 Jent has not shown that the trial court abused its

       discretion in not requiring Mother to pay all or any part of his attorney’s fees.

       We affirm the court’s judgment.


                                                     Conclusion
[14]   In sum, we affirm the trial court’s judgment in all respects.


[15]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       2
         We note that, in its order on Father’s motion to correct error, the trial court vacated its order that Father
       pay $5,000 of Dr. Gonso’s fees.

       Court of Appeals of Indiana | Opinion 19A-JP-1045 | April 27, 2020                                  Page 17 of 17
