MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Aug 27 2019, 9:21 am
court except for the purpose of establishing
                                                                                 CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




ATTORNEYS FOR APPELLANT
Kathleen M. Meek
Romy N. Elswerky
Justin T. Bowen
Bowen & Associates, LLC
Carmel, Indiana

ATTORNEYS FOR AMICI CURIAE
COUNSEL FOR AMICI CURIAE
NATIONAL FEDERATION OF THE
BLIND AND NATIONAL FEDERATION
OF THE BLIND OF INDIANA
Sharon Krevor-Weisbaum
Emily L. Levenson
Brown, Goldstein & Levy, LLP
Baltimore, Maryland

COUNSEL FOR AMICUS CURIAE
INDIANA DISABILITY RIGHTS
Thomas E. Crishon
Indiana Disability Rights
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA



Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019                   Page 1 of 15
      J.S.,                                                    August 27, 2019
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               19A-DC-580
              v.                                               Appeal from the Morgan Circuit
                                                               Court
      W.S.,                                                    The Honorable Matthew G.
      Appellee-Respondent                                      Hanson, Judge
                                                               Trial Court Cause No.
                                                               55C01-1809-DC-1731



      Crone, Judge.


                                             Case Summary
[1]   J.S. (“Mother”) appeals the trial court’s decree which dissolved her marriage to

      W.S. (“Father”). Mother contends that the trial court abused its discretion in

      awarding sole physical custody of the parties’ minor daughter, A.S., to Father

      based in large part upon an allegedly erroneous finding regarding Mother’s

      blindness disability. Mother also asserts that the trial court abused its discretion

      in declining to award child support and in denying her request for spousal

      maintenance. Concluding that the trial court indeed made an erroneous finding

      regarding Mother’s disability, and as it is unclear whether the trial court would

      have awarded Father sole physical custody of A.S. absent that erroneous


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019       Page 2 of 15
      finding, we reverse and remand on the issue of child custody. Because the child

      support and spousal maintenance issues are integrally tied to child custody in

      this case, these issues should be also reconsidered upon remand accordingly.


                                   Facts and Procedural History
[2]   A.S. was born to Mother and Father on June 29, 2013. Mother and Father

      subsequently married on September 29, 2013.1 At times during the marriage

      when both parties worked outside the home, Mother’s parents, A.S.’s maternal

      grandparents, provided the majority of the childcare for A.S.


[3]   In July 2015, Mother became ill and was later diagnosed with pseudotumor

      cerebri. This condition rendered Mother legally blind. Following her

      diagnosis, Mother ceased working and became a stay-at-home mom and the

      primary caretaker for A.S. In 2016, Mother began receiving Social Security

      Disability and Supplemental Security Income based upon a finding that she was

      unable to work due to her disability.


[4]   The parties eventually separated, and Mother filed a dissolution of marriage

      petition on September 10, 2018. Following a preliminary hearing, the trial

      court entered a preliminary order awarding the parties joint physical and legal

      custody of A.S. and ordering Father to pay Mother child support in the amount

      of $32 per week. At the time, Mother resided with her parents, and Father



      1
        Although A.S. was born before the parties were married, they agree that she should be considered a child of
      the marriage.



      Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019                   Page 3 of 15
resided with his father and stepmother in residences approximately eight to ten

miles apart. The trial court held a final hearing on February 20, 2019, and

entered a dissolution decree that same day. In the decree, the court sua sponte

made the following relevant findings of fact regarding child custody:2


           12) The child is a female and is five (5) years of age.

           13) Mother wishes to have full physical and legal custody of the
           child.

           14) Father wishes to have full physical and legal custody of the
           child.

           15) The court did not hear from the child and her opinion, at this
           age, would be of no value.

           ….

           20) [T]he court will find [that] Father has a good relationship
           with the child.

           ….

           22) [T]he court will find [that] Mother has a good relationship
           with the child.

           23) The court heard minimal evidence about other parties around
           the child but since no concerns were raised the court must find
           that all relationships with other family members are good ones.




2
    We replace the trial court’s references to “the wife” and “the husband” with “Mother” and “Father.”



Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019                   Page 4 of 15
        24) At this time the parties live very close to one another and the
        school the child attends actually has bus routes to both parents’
        homes.

        25) The child is familiar with both homes in which the parents
        now live.

        26) That both Mother and Father live with their parents so while
        living situations could change, they would change for both
        parties if/when they move out to find their own homes.

        27) That the child is familiar with the community she is in as
        well.

        ….

        33) Mother has a physical disability that essentially makes her
        legally blind.

        34) That Mother is currently in [vocational] rehabilitation to
        figure out how to be on her own and also be able to go back to
        some sort of work.

        35) That this disability was not in place prior to her marriage and
        only developed in the past few years.

        36) This disability affects Mother’s ability to drive, work (at this
        time) and even to do daily things such as walking up stairs she is
        unfamiliar with.

        37) Mother does have some support systems in place with her
        family, however the physical disability could present issues with
        the safety and security of the child.

        ….

        40) There is no evidence that the child has been cared for by a de

Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019   Page 5 of 15
              facto custodian.

              41) It is relevant that Father works during the days and Mother
              does not at this time, however, like Mother, has family in place
              to aid with custody.

              42) Likewise, it is believed [that] Mother will be working within
              the next six months to [a] year.

              43) After considering the factors for custody the court could have
              been convinced to continue joint physical custody of this child
              had either party requested it.

              44) However, in light of the positions of both parties, joint
              physical custody at this time is not likely to work.

              45) Therefore, taking into account the factors … and in
              consideration of the best interests of the child, the court will find
              that Father shall have full physical custody of the child.


      Appealed Order at 1-4.


[5]   Mother was granted parenting time with A.S. in accordance with the Indiana

      Parenting Time Guidelines, subject to the addition of one overnight per week,

      and the order provided that Mother could provide daycare for A.S. during the

      summer while Father is working. Despite some communication issues between

      the parties, the court ordered that the parties would continue having joint legal

      custody of A.S. as provided in the preliminary order. The trial court declined to

      award any child support and further denied Mother’s request for incapacity

      spousal maintenance. This appeal ensued. We will provide additional facts in

      our discussion where necessary.


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019   Page 6 of 15
                                     Discussion and Decision
[6]   We begin by noting that Father has not filed an appellee’s brief. When an

      appellee fails to submit a brief, we do not undertake the burden of developing

      arguments for the appellee, and we apply a less stringent standard of review.

      M.R. v. B.C., 120 N.E.3d 220, 223 (Ind. Ct. App. 2019). Thus, we may reverse

      if the appellant establishes prima facie error, which is error at first sight, on first

      appearance, or on the face of it. Id. This rule relieves us of the burden of

      controverting arguments advanced in favor of reversal where that burden

      properly rests with the appellee. Id. In any event, we are still obligated to

      correctly apply the law to the facts in the record in order to determine whether

      reversal is required. Id.


[7]   The trial court here entered findings and conclusions in support of its

      dissolution decree. It does not appear from the record that either party

      requested such findings. When the trial court enters findings sua sponte, the

      specific findings control only as to the issues they cover, while a general

      judgment standard applies to any issue upon which the court has not found.

      Montgomery v. Montgomery, 59 N.E.3d 343, 349 (Ind. Ct. App. 2016), trans.

      denied (2017). The specific findings will not be set aside unless they are clearly

      erroneous. Collyear-Bell v. Bell, 105 N.E.3d 176, 184 (Ind. Ct. App. 2018). A

      finding is clearly erroneous when there are no facts or inferences drawn

      therefrom that support it. Id. In reviewing the trial court’s findings, we neither

      reweigh the evidence nor judge the credibility of the witnesses. Id. Clear error



      Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019   Page 7 of 15
      is “that which leaves us with a definite and firm conviction that a mistake has

      been made.” Masters v. Masters, 43 N.E.3d 570, 575 (Ind. 2015).


      Section 1 – Mother has established prima facie error regarding
                the trial court’s physical custody decision.
[8]   Mother asserts that the trial court abused its discretion in awarding Father sole

      physical custody of A.S. Specifically, Mother asserts that the trial court’s

      decision was based, in large part, on a clearly erroneous finding of fact that

      improperly presumed that her disability could present a safety and security risk

      to A.S. We agree with Mother.


[9]   Our standard of review of initial child custody determinations is well settled.

      Determinations regarding child custody fall within the trial court’s sound

      discretion. Swadner v. Swadner, 897 N.E.2d 966, 974 (Ind. Ct. App. 2008). In

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

      custody. Hamilton v. Hamilton, 103 N.E.3d 690, 694 (Ind. Ct. App. 2018), trans.

      denied. The trial court shall determine custody and enter a custody order in

      accordance with the best interests of the child by considering all relevant

      factors, including:


              (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 sibling; and
                (C) any other person who may significantly affect the child’s

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019   Page 8 of 15
                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.
                (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 8.5(b) of this chapter.


       Ind. Code § 31-17-2-8. In deference to the trial court’s proximity to the issues,

       we do not reweigh the evidence or determine the credibility of witnesses. Hughes

       v. Rogusta, 830 N.E.2d 898, 902 (Ind. Ct. App. 2005). Instead, we consider the

       evidence most favorable to the judgment, with all reasonable inferences drawn

       in favor of the judgment. Id. We will affirm the trial court’s custody

       determination absent an abuse of discretion. Swadner, 897 N.E.2d at 974.


[10]   Here, in considering factors (1) through (5) and factors (7)3 and (8), the trial

       court specifically found that either those factors did not apply under the

       circumstances presented or that Mother and Father were essentially on equal

       footing when it came to physical custody and the best interests of A.S.




       3
        Although the trial court noted one prior domestic violence incident between Mother and Father where
       Mother was charged but able to avoid prosecution by participating in a diversion program, see Appealed
       Order ¶ 38, the trial court made no finding regarding “a pattern of domestic or family violence by either
       parent” as there was no evidence presented of such a pattern.



       Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019                    Page 9 of 15
       However, in considering factor (6), the mental and physical health of all

       individuals involved, the trial court found in relevant part:


               33) Mother has a physical disability that essentially makes her
               legally blind.

               ….

               37) Mother does have some support systems in place with her
               family, however the physical disability could present issues with
               the safety and security of the child.


       Appealed Order at 3-4.


[11]   Upon review of the record, we agree with Mother that there is no evidence to

       support Finding 37. There was minimal evidence presented as to the onset of

       Mother’s disability as well as general testimony regarding her progress and

       adaptations to manage her disability and to eventually become employable. As

       for the safety and security of A.S., Mother and Father each testified and agreed

       that there were absolutely no safety concerns regarding Mother’s legal blindness

       and her ability to parent and care for A.S. There was no other evidence

       presented regarding Mother’s disability as it related to the best interests of A.S.


[12]   This Court has previously addressed the role of a parent’s disability in the

       analysis of the best interests of the child. In re Marriage of Lang, 668 N.E.2d 285,

       288-89 (Ind. Ct. App. 1996). In Lang, we approved of the reasoning of a

       California Supreme Court case, In re Marriage of Carney, 598 P.2d 36 (Cal.

       1979), which determined that it was impermissible for a trial court to rely on a


       Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019   Page 10 of 15
       parent’s physical disability “as prima facie evidence of the person’s unfitness as

       a parent or of probable detriment to the child; rather in all cases the court must

       view the handicapped person as an individual and the family as a whole.” Id. at

       42. The Carney court explained,


               To achieve this, the court should inquire into the person’s actual
               and potential physical capabilities, learn how he or she has
               adapted to the disability and manages its problems, consider how
               the other members of the household have adjusted thereto, and
               take into account the special contributions the person may make
               to the family despite or even because of the handicap.


       Id. Weighing these and all other relevant factors, the court must carefully

       determine whether the parent’s disabling condition will in fact have a

       “substantial and adverse effect on the best interest of the child.” Id.; see Clark v.

       Madden, 725 N.E.2d 100, 105 (Ind. Ct. App. 2000) (approving of and adopting

       Carney’s reasoning).


[13]   It is apparent that rather than make a careful determination of whether

       Mother’s disability will in fact have an adverse effect on the best interests of

       A.S., the trial court here improperly presumed that it could without any

       supporting evidence. Because there was no evidence cited to or seemingly

       relied upon by the trial court that otherwise tipped the scales in favor of Father

       being awarded sole physical custody, we cannot say that the findings as a whole

       support the court’s ultimate conclusion that an award of sole physical custody




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019   Page 11 of 15
       to Father was in A.S.’s best interests.4 In other words, Mother has established

       prima facie error as we are not confident that the trial court would have reached

       the same conclusion absent the clearly erroneous finding and presumption

       regarding her disability.5 Accordingly, we reverse the court’s physical custody

       order and remand for the court to reconsider the issue in light of our decision.

       Upon remand, we instruct the court to enter only proper findings supported by

       the evidence as well as to enter additional specific findings that better articulate

       its physical custody determination.6


           Section 2 – The trial court must reconsider child support and
                         spousal maintenance on remand.
[14]   Because a determination of child support is integrally tied to the physical

       custody issue, an award of child support must be also reconsidered upon

       remand. However, based upon its prior minimal findings on this issue, we

       believe that some guidance would be useful. It appears that both parties



       4
         The trial court did note Father’s allegation that Mother drinks alcohol often and that her alcohol use was at
       the root of their one instance of domestic violence, as it caused them to “argue about trifle things.” Appealed
       Order at 3. However, there was no evidence presented, and the trial court made no finding, that Mother’s
       alcohol use is currently excessive and/or poses any threat to the safety of A.S. In other words, it does not
       appear that the trial court relied on Mother’s alcohol use in making its physical custody determination.
       5
        Because we conclude that the trial court’s finding in this regard is clearly erroneous, we decline to address
       Mother’s assertion that the trial court’s custody order runs afoul of the Indiana Civil Rights Law and
       discriminates against her in violation of the Americans with Disabilities Act.
       6
         The trial court stated that it would have been inclined to award joint physical custody had either party
       requested it. To be clear, the trial court is not precluded from entering a custody arrangement not specifically
       advanced by either party so long as that custody arrangement is in the child’s best interests. Richardson v.
       Richardson, 34 N.E.3d 696, 704 (Ind. Ct. App. 2015). Nevertheless, we acknowledge the trial court’s
       proximity to the issues and recognize that the court had, and may still have upon remand, other valid reasons
       for deciding that joint physical custody is not in A.S.’s best interests.



       Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019                    Page 12 of 15
       requested an award of child support in conjunction with their requests for

       physical custody. Mother also requested incapacity spousal maintenance.

       After awarding sole physical custody of A.S. to Father, the trial court simply

       found that “there will be no child support ordered.” Appealed Order at 5. The

       court further stated, “in lieu of no child support, the court will not order any

       spousal maintenance as well,” reasoning “[e]ssentially these amounts would

       cancel each other out.” Id. These sparse findings do not pass muster.


[15]   We observe as a general matter that decisions regarding child support rest

       within the sound discretion of the trial court. Taylor v. Taylor, 42 N.E.3d 981,

       986 (Ind. Ct. App. 2015), trans. denied. Indiana Code Section 31-16-6-1

       provides a list of relevant factors a trial court should consider in making a child

       support determination and our supreme court has promulgated the Indiana

       Child Support Guidelines and provided worksheets to aid the trial court.

       Indeed, a calculation made pursuant to the Child Support Guidelines is

       presumed valid. In re Marriage of Duckworth, 989 N.E.2d 352, 354 (Ind. Ct. App.

       2013). But this Court “cannot review a support order to determine if it

       complies with the guidelines unless the order reveals the basis for the amount

       awarded.” Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 728 (Ind. Ct. App.

       2009). “Such revelation could be accomplished either by specific findings or by




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019   Page 13 of 15
       incorporation of a proper worksheet.” Cobb v. Cobb, 588 N.E.2d 571, 574 (Ind.

       Ct. App. 1992).7


[16]   Simply put, from what the trial court did here, we are wholly unable to

       determine whether the court complied with the Child Support Guidelines, and

       therefore reconsideration and clarification of the child support order (or lack

       thereof) is appropriate. See, e.g., Dye v. Young, 655 N.E.2d 549, 551 (Ind. Ct.

       App. 1995). Accordingly, on remand, in addition to reconsidering child

       custody, the trial court must reconsider its order regarding child support and

       enter an order revealing the basis for the amount, even if that amount is zero,

       awarded to either party. Moreover, because the trial court’s denial of Mother’s

       request for spousal maintenance appears to have been based primarily upon its

       decision to award no child support rather than upon a consideration of

       Mother’s incapacity, the trial court must clarify its decision regarding spousal

       maintenance in tandem with its reconsideration of child support. We note that,

       while an award of spousal maintenance is a discretionary decision, a trial court

       “should normally award incapacity maintenance” if it finds a spouse to be

       “physically or mentally incapacitated to the extent that the ability of that spouse

       to support himself or herself is materially affected[.]” Cannon v. Cannon, 758

       N.E.2d 524, 527 (Ind. 2001).




       7
         Although Mother submitted a child support worksheet that the trial court clearly used to support its
       preliminary award of child support to Mother, the trial court did not reference it or incorporate the worksheet
       into its dissolution decree.



       Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019                   Page 14 of 15
[17]   In sum, we find prima facie error and reverse the trial court’s dissolution decree

       as it relates to physical custody, child support, and spousal maintenance, and

       we remand for reconsideration and clarification of these issues. The trial

       court’s dissolution decree is affirmed in all other respects.


[18]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-580 | August 27, 2019   Page 15 of 15
