                                                                             FILED
                                                                       Jul 11 2019, 8:41 am

                                                                             CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
Dylan A. Vigh                                                Amanda R. Blystone
Indianapolis, Indiana                                        Austin T. Robbins
                                                             Broyles Kight & Ricafort, P.C.
                                                             Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Matthew Purnell,                                             July 11, 2019
Appellant-Respondent,                                        Court of Appeals Case No.
                                                             19A-JP-162
         v.                                                  Appeal from the Johnson Circuit
                                                             Court
Kayla Purnell,                                               The Honorable K. Mark Loyd,
Appellee-Petitioner.                                         Judge
                                                             The Honorable Andrew Roesener,
                                                             Magistrate
                                                             Trial Court Cause No.
                                                             41C01-1702-JP-21



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019                               Page 1 of 15
                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent, Matthew Purnell (Father), appeals the trial court’s

      Order, awarding Appellee-Petitioner, Kayla Purnell (Mother), sole legal

      custody and primary physical custody of their minor child, S.P. (Child).


[2]   We affirm.


                                                       ISSUE
[3]   Father presents one issue on appeal, which we restate as: Whether the trial

      court abused its discretion by considering Father’s active-duty status in the

      United States Air Force when it awarded sole legal and primary physical

      custody to Mother.


                       FACTS AND PROCEDURAL HISTORY
[4]   Father and Mother married on December 15, 2014. At the time, Father was an

      active member of the United States Air Force stationed in California. After the

      wedding, in February 2015, Mother relocated from Indiana to California and

      the couple resided in an on-base residence. Approximately fourteen months

      later, in April 2016, Mother moved back to Indiana to live with her mother

      (Grandmother) due to purported allegations of Father’s infidelity. When she

      left California, Mother was pregnant and, approximately two weeks after

      returning to Indiana, the Child was born on April 20, 2016. There is no dispute

      that Father is the legal and biological father of the Child.




      Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019         Page 2 of 15
[5]   Mother has been the primary caregiver for the Child since his birth and has

      effectuated parenting time opportunities for Father when Father is in Indiana.

      Six weeks after his birth, Father visited the Child for the first time. In June of

      2016, Father travelled to Indiana with the intent to remove the Child from

      Mother’s care and to return with him to California. On his way to Indiana,

      Father stopped at the home of his father and stepmother in New Mexico to

      spend the night. During this visit, Father informed them of his plan to take the

      Child as he did not believe Mother was fit to be the Child’s primary caretaker.

      Father’s stepmother contacted Grandmother and informed her of Father’s

      plans. Mother was able to successfully thwart Father’s plan while still allowing

      him parenting time when he was in Indiana. Father returned to California

      without the Child.


[6]   Mother has been treated for mental health issues since she was approximately

      eleven years old. When she was thirteen years old, Mother spent three weeks in

      inpatient hospital care for suicidal tendencies. Another suicide attempt at age

      fifteen was followed by a month of inpatient care. Mother has been diagnosed

      with bipolar disorder Type I, anxiety disorder not otherwise specified, and

      ADHD. Bipolar disorder Type I is characterized by “periods where [Mother’s]

      mood can be manic and then periods where [her] mood can be depressed.”

      (Transcript p. 11). Every two to three months, Mother has an appointment

      with Susan Fay, an advanced nurse practitioner and clinical specialist (Nurse

      Fay), who works with Mother on medical management and assisted her to

      overcome postpartum depression after the birth of the Child. Overall, Mother


      Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019           Page 3 of 15
      is compliant with the proposed course of treatment and Nurse Fay has no

      concerns that Mother can appropriately care for the Child.


[7]   In addition to Nurse Fay, Mother is under the care of Diane Burks (Burks), a

      licensed clinical social worker, who has been working with Mother since she

      was eleven years old. Burks has seen positive changes in Mother since the start

      of the treatment plan. Mother is “more rational, much more grounded, [with]

      fewer manic episodes.” (Tr. p. 45). When Mother gets manic, “she talks real

      fast. She gets judgmental, she gets more opinionated. She’ll get stuck on

      something and be on a tangent, and she’ll be on a roll about it, and it’s hard to

      stop her.” (Tr. p. 48). Mother is “secure in her job, she has plans for the future,

      she’s dealing with college.” (Tr. p. 60). “[S]he’s got it all together and knows

      where she’s going and how to manage that.” (Tr. p. 60). In the six months

      prior to the hearing, Mother has become “much more confident with herself,

      much more closely bonded with [Child], clearly attached. [Child] is very

      comfortable with Mother and [G]randmother and goes between them back and

      forth easily.” (Tr. p. 60). Because Mother brings Child to the appointments

      with Burks, Burks had an opportunity to chart his evolution. She noticed that

      Child “regressed” in walking skills after a long visit with Father when he was

      about one year old. (Tr. p. 55).


[8]   Mother maintains fulltime employment as a security guard and is enrolled in

      college courses part-time at Ivy Tech. She and the Child reside with

      Grandmother, who aids Mother in her care for the Child. Mother is aware that

      “she has her mom to step in and help out and support her when she’s not doing

      Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019         Page 4 of 15
       as well” and Grandmother remains a stabilizing and supportive presence in

       Mother’s life. (Tr. pp. 23-24).


[9]    During the proceedings, Father re-enlisted in the Air Force and was re-assigned

       to the Cavalier Air Force base in North Dakota where he is the Crew Chief for

       the missile warning radar and spacecraft surveillance. Father has no immediate

       plans to return to civilian life or Indiana. He lives on-base with his girlfriend

       and their eleven-month-old child.


[10]   On August 29, 2016, Father filed for a dissolution of marriage in the Superior

       Court of Santa Barbara in California (Superior Court). After conducting a

       hearing on Father’s petition, the Superior Court ruled that it “has no

       jurisdiction to make an initial custody order in this case. The [C]hild’s home

       state of Indiana has jurisdiction to make the initial custody orders.”

       (Appellant’s App. Conf. Vol. II, p. 48). The Superior Court retained

       jurisdiction over all other issues. On February 9, 2017, based on the Superior

       Court’s order, Mother filed her verified petition to establish custody, parenting

       time, and child support with the trial court in Indiana. One week later, Father

       submitted his verified petition for transfer of child custody jurisdiction and for

       custody determination. On April 13, 2017, the trial court conducted a hearing

       on Father’s petition, which it subsequently denied. The trial court granted

       Mother temporary custody of the Child. On March 2, 2018 and November 2,

       2018, a final hearing was conducted on the parties’ competing custody requests.

       On December 27, 2018, the trial court issued its Findings of Fact and



       Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019           Page 5 of 15
Conclusions thereon, awarding sole legal custody and primary physical custody

of the Child to Mother and concluding, in pertinent part:


         15. Two (2) predominant issues have emerged from this
         litigation and have great bearing [on] the critical decisions of
         custody and parenting time.

         16. Those issues are as follows:
               a. The mental and emotional fitness and stability of both
               Mother and Father; and
               b. The significant geographical distance between Mother
               and Father.

         17. Adding another wrinkle of complexity to this matter is the
         anticipated transient nature of Father’s future employment with
         the Air Force.

         ****

         31. The [c]ourt’s decision today as it relates to physical custody
         of the minor [C]hild is predicated in large part on the ongoing
         presence of [G]randmother, [Burks], and [Nurse Fay] in the life
         of Mother.

         32. It is impossible to know with absolute certainty what the
         future holds, but Mother should be mindful that the [c]ourt’s
         decision today may have been different if Mother was not
         residing with [G]randmother and not fully engaged in therapy
         and medication management.

         33. Future decisions by Mother resulting in changes to these
         important factors may be a basis to re-evaluate custody and
         parenting time decisions.

         34. Father, for his part, offers the minor [C]hild the benefit of a
         parent with a stable career; a single family home; and a more
         traditional family unit.

         ****



Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019               Page 6 of 15
         36. Father, however, presents countervailing concerns to the
         [c]ourt.

         37. Chief among those concerns is Father’s plan to abduct the
         minor [C]hild from Mother.

         38. It must be noted that this plan was not just something that
         Father privately contemplated and never acted upon.

         39. The opposite is true.

         40. Father took actual steps toward the completion of his plan,
         including traveling to Indiana to abduct the [C]hild.

         41. It is unclear whether, ultimately, Father abandoned his plan
         or if it was thwarted by [G]randmother, but, regardless, the
         instinct to carry out the plan is of grave concern to the [c]ourt.

         42. The inclination of Father to attempt to execute this scheme
         suggests to the [c]ourt that Father is afflicted with his own mental
         instability.

         43. While, to some degree, it is understandable that Father’s
         judgment was impaired during this difficult time for him, the
         decision to “fix” the problem through a poorly conceived
         interstate child abduction scheme demonstrates an appalling lack
         of judgment and impaired clarity of thought.

         44. Adding to the concern are the statements of [Father’s father]
         and [Father’s stepmother] who both stated that Father is
         incapable of caring for a young child.

         45. To place the minor [C]hild with Father with knowledge of
         the aforementioned facts cuts against the best interest of the
         [C]hild.

         46. In addition, placing the minor [C]hild with Father will all
         but ensure that the minor [C]hild’s relationship with Mother and
         [G]randmother is irreversibly compromised.

         47. Placing the minor [C]hild in Father’s custody will not only
         create a significant geographical distance between Mother and

Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019              Page 7 of 15
                the minor [C]hild, but it will also ascribe to the minor [C]hild the
                real potential for an itinerant life dictated by Father’s changing
                military assignments.

       (Appellant’s Conf. App. Vol. II, pp. 31-34).


[11]   Father now appeals. Additional facts will be provided if necessary.


                                DISCUSSION AND DECISION
[12]   Father contends that the trial court abused its discretion by awarding sole legal

       custody and primary physical custody of the Child to Mother. In an initial

       custody determination, both parents are presumed equally entitled to custody,

       and the “[t]he court shall determine custody and enter a custody order in

       accordance with the best interest of the child.” Ind. Code § 31-17-2-8. There is

       no presumption favoring either parent. I.C. § 31-17-2-8. In determining the

       child’s best interest, the trial court must consider all relevant factors, including

       specifically the following:


                (1) the age and sex of the child.
                (2) The wishes of the child’s parent or 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 parent or parents;
                    (B) The child’s siblings; and
                    (C) Any other person who may significantly affect the child’s
                        best interests.
                (5) The child’s adjustment to the child’s
                    (A)Home;
                    (B) School; and
                    (C) Community.
                (6) The mental and physical health of all individuals involved.
                (7) Evidence of a pattern of domestic or family violence by either
                    parent.
       Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019               Page 8 of 15
                (8) Evidence that the child has been cared for by a de facto
                    custodian.

       I.C. § 31-17-2-8. The trial court’s decisions on child custody are reviewed only

       for an abuse of discretion. Sabo v. Sabo, 858 N.E.2d 1064, 1068 (Ind. Ct. App.

       2006).


[13]   There is a well-established preference in Indiana “‘for granting latitude and

       deference to our trial judges in family law matters.’” Steele-Giri v. Steele, 51

       N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622 N.E.2d

       178, 178 (Ind. 1993)). In this regard, our supreme court has explained that:


                Appellate deference to the determinations of our trial court
                judges, especially in domestic relations matters, is warranted
                because of their unique, direct interactions with the parties face-
                to-face, often over an extended period of time. Thus enabled to
                assess credibility and character through both factual testimony
                and intuitive discernment, our trial judges are in a superior
                position to ascertain information and apply common sense,
                particularly in the determination of the best interests of the
                involved children.


       Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). It is not enough on appeal that the

       evidence might support some other conclusion; rather, the evidence must

       positively require the result sought by the appellant. D.C. v. J.A.C., 977 N.E.2d

       951, 957 (Ind. 2012). Accordingly, we will not substitute our own judgment if

       any evidence or legitimate inferences support the trial court’s judgment. Id.


[14]   At Mother’s request, the trial court included specific findings of fact and

       conclusions thereon pursuant to Indiana Trial Rule 52. When a trial court

       Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019               Page 9 of 15
       enters findings of fact and conclusions of law pursuant to Indiana Trial Rule 52,

       we apply the following two-tiered standard of review: whether the evidence

       supports the findings and whether the findings support the judgment. Tompa v.

       Tompa, 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). The trial court’s findings

       and conclusions will be set aside only if they are clearly erroneous, that is, if the

       record contains no facts or inferences supporting them. Id. A judgment is

       clearly erroneous when a review of the record leaves us with a firm conviction

       that a mistake has been made. Id. We neither reweigh the evidence or assess

       the credibility of the witnesses, but consider only the evidence most favorable to

       the judgment. Id. We review conclusions of law de novo. Id.


[15]   In the present case, the trial court granted initial sole legal and primary physical

       custody of the Child to Mother. In making this custody determination, the trial

       court relied on several of the statutory factors listed in I.C. § 31-17-2-8, with its

       Order comprising of ninety-five findings of fact and forty-seven conclusions of

       law. On appeal, Father concedes that the trial court’s findings are supported by

       the evidence; rather, his sole contention revolves around the trial court’s

       consideration of his active-duty status in the United States Air Force. 1




       1
         Mother contends that Father waived his argument because he never raised the application of Indiana Code
       section 31-17-2-21.3 before the trial court. However, we have long held that “[w]hile failure to cite the
       controlling statute cannot be said to be sound trial practice, it does not constitute waiver of a contention
       within the factual framework of the litigation[.]” Danes v. Automobile Underwriters, Inc., 307 N.E.2d 902, 905-
       06 (Ind. Ct. App. 1974). Father’s active duty status was evident and was repeatedly acknowledged by the
       trial court. Accordingly, Father did not waive his argument on appeal. See, e.g., In re the Adoption of S.O., 56
       N.E.3d 77, 82 (Ind. Ct. App. 2016) (a party may not present an argument or issue to an appellate court unless
       the party raised that argument or issue to the trial court).

       Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019                                  Page 10 of 15
       Specifically, Father asserts that the trial court violated Indiana Code section 31-

       17-2-21.3(a) by relying on “Father’s active-duty service, and the future

       assignments it contemplated, as a determining factor in awarding custody to

       Mother.” (Appellant’s Br. p. 17). Indiana Code section 31-17-2-21.3 provides

       that


                (a) A court may not consider a parent’s absence or relocation due
                to active duty service as a factor in determining custody or
                permanently modifying a child custody order.


                (b) If a court temporarily modifies a custody order due to a
                parent’s active duty service, the order temporarily modifying the
                custody order terminates automatically not later than ten (10)
                days after the date the parent notifies the temporary custodian in
                writing that the parent has returned from active duty service.
                This subsection does not prevent a court from modifying a child
                custody order as provided under this article after a parent returns
                from active duty service.


       “Active duty” is defined as full-time service in the armed forces of the United

       States or the National Guard for a period that exceeds thirty consecutive days

       in a calendar year. I.C. § 31-9-2-0.8.


[16]   In re C.S., 964 N.E.2d 879, 881 (Ind. Ct. App. 2012), trans. denied, a mother

       chose to reactivate her active duty service by taking a job as a career counselor,

       apparently indefinitely, in Kentucky because it provided better pay and benefits

       than the private sector. We held that because the mother testified that she

       would remain in Kentucky for “some time to come,” her location would only

       be changed upon her request, and she could not be deployed to a combat zone,

       Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019           Page 11 of 15
       the mother’s service did not demonstrate the impermanency contemplated by

       the statute. Id. at 885. However, In re C.S. was decided in the context of a

       custody modification with the ‘impermanency’ language alluding to the return

       of the parent from active duty service as contemplated by the application of

       section (b) of the statute. In the most current pronouncement Hazelett v.

       Hazelett, 119 N.E.3d 153 (Ind. Ct. App. 2019), we reversed the trial court’s

       initial custody determination in favor of mother, as it appeared “that the trial

       court did, in fact, consider [f]ather’s absence due to his military service as a

       factor in awarding [m]other sole legal custody” in violation of section (a) of the

       statute. Id. at 161. Accordingly, “in light of the trial court’s insufficient

       findings and the fact that the court apparently considered [f]ather’s active duty

       service in its initial custody determination,” we remanded for a new custody

       determination. Id.


[17]   Father testified that he is the Crew Chief for the missile warning radar and

       spacecraft surveillance at the Cavalier Air Force base in North Dakota. Unlike

       In re C.S., Father’s reassignments are uncertain and not voluntary. He cannot

       choose his location and could be ordered to go where needed. As he is serving

       full-time in the armed forces of the United States, he falls within the province of

       I.C. § 31-17-2-21.3(a). Although Mother proposes to limit the application of the

       statute to an “active duty combatant who has been deployed to another country

       for a limited period of time,” no such language is included in section (a) of the

       statute, nor are we persuaded to constrain the statute’s interpretation as Mother

       suggests.


       Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019           Page 12 of 15
[18]   Our review of the trial court’s Order indicates that the trial court considered

       Father’s active duty service in its determination of the Child’s initial custody.

       Emphasizing the “anticipated transient nature of Father’s future employment

       with the Air Force,” the trial court granted Mother custody, as awarding

       custody of the Child to Father would result in “an itinerant life dictated by

       Father’s changing military assignments.” (Appellant’s App. Conf. Vol. II, p.

       34).


[19]   Nevertheless, unlike Hazelett, where we remanded in part due to the trial court’s

       insufficient findings, in the present case, the trial court entered extensive

       findings of fact and conclusions thereon. “[I]t is not necessary that each and

       every finding be correct, and even if one or more findings are clearly erroneous,

       we may affirm the judgment if it is supported by other findings or is otherwise

       supported by the record.” Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App.

       2013). Although the trial court considered Mother’s mental health struggles

       and cautioned her to be compliant with her medical providers, the trial court

       was impressed by the strides Mother has made since returning to Indiana.

       Mother has built an extensive support network and is currently gainfully

       employed with a realistic plan for the future. She continues to reside with

       Grandmother, and together they “have collaborated to create a safe and loving

       home environment for the Child.” (Appellant’s Conf. App. Vol. II, p. 32).

       Even when Mother became unstable, she “never displayed physically violent

       tendencies, suffered from visual or auditory hallucinations; or abused drugs or

       alcohol.” (Appellant’s Conf. App. Vol. II, p. 32).


       Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019           Page 13 of 15
[20]   The Child has resided in Indiana for the entirety of his life. He is bonded with

       Mother and Grandmother. Father’s first visit took place when the Child was

       six weeks old and he has exercised parental time approximately eight to nine

       times since the Child’s birth on April 20, 2016. Despite Father’s stable

       employment prospects and presence of a traditional family unit, Burks

       explained that awarding custody to Father would be “[a]bsolutely [the] worst

       thing that could happen to [Child] because it would violate his attachment, his

       bond with [Mother] and grandmother. And to take that trust away from him

       just wipes out the whole bottom of the security of his development.” (Tr. p.

       65). Chief among the trial court’s concerns with respect to Father was Father’s

       thwarted plan to abduct his own Child. Referencing the evidence that the plan

       was not merely privately contemplated, the trial court viewed the “poorly

       conceived interstate child abduction scheme” as a demonstration of “an

       appalling lack of judgment and impaired clarity of thought.” (Appellant’s Conf.

       App. Vol. II, p. 34).


[21]   Mindful of our deference to the trial court in custody cases and without

       acknowledging the trial court’s conclusions with respect to Father’s active duty

       status, we find that, in light of the totality of the remaining trial court’s findings

       and conclusions, sufficient evidence exists to support the trial court’s grant of

       sole legal custody and primary physical custody of the Child to Mother.


                                              CONCLUSIONS
[22]   Based on the foregoing, we hold that although the trial court abused its

       discretion in considering Father’s active duty status in the United States Air
       Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019            Page 14 of 15
       Force, the remaining findings of fact and conclusions thereon are sufficient to

       support the grant of sole legal custody and primary physical custody of the

       Child to Mother.


[23]   Affirmed.


[24]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 19A-JP-162 | July 11, 2019       Page 15 of 15
