                                                                         Aug 11 2015, 5:29 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Bryan L. Ciyou                                             Andrea L. Ciobanu
      Lori B. Schmeltzer                                         Alex Beeman
      Jessica K. Keyes                                           Ciobanu Law, P.C.
      Ciyou & Dixon, P.C.                                        Indianapolis, Indiana
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In re the Marriage of:                                    August 11, 2015
                                                                Court of Appeals Case No.
      Christopher Neal Maddux,                                  49A02-1409-DR-618
                                                                Appeal from the Marion Superior
      Appellant-Respondent,
                                                                Court
             v.                                                 The Honorable David J. Dreyer,
                                                                Judge
      Suzanne Marie Maddux,                                     The Honorable Hugh Patrick
                                                                Murphy, Magistrate
      Appellee-Petitioner
                                                                Case No. 49D10-0406-DR-1112




      Crone, Judge.


                                            Case Summary
[1]   Christopher Neal Maddux (“Father”) appeals an order denying his motion for

      modification of primary physical custody of his two sons. He claims that the

      trial court’s findings of fact do not support the judgment with respect to the best

      Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015                  Page 1 of 20
      interests of the children. 1 We reverse and remand for proceedings consistent

      with this opinion.


                                Facts and Procedural History
[2]   In March 2005, the trial court issued a decree dissolving the marriage of Father

      and Suzanne Marie Maddux (“Mother”). As part of the decree, the court

      granted joint legal custody, awarded Mother primary physical custody of the

      couple’s children, G.M. and C.M. (collectively “the Children”), then ages three

      and one, and granted Father parenting time according to the Indiana Parenting

      Time Guidelines.


[3]   Father subsequently remarried and lives with his wife (“Wife”), their three

      children, and Wife’s child from a previous relationship. As of 2006, Mother

      and the Children moved in with Mother’s parents (“Maternal Grandmother

      and Maternal Grandfather”). Maternal Grandfather has a felony child

      molesting conviction from thirty years ago. Mother’s and Father’s residences

      are approximately two miles apart.


[4]   In 2011, Mother alleged that Father was physically abusing C.M., and she filed

      a petition for a protective order. Her petition was granted, and the Department

      of Child Services (“DCS”) began proceedings to determine whether C.M. was a



      1
        Father also asserts that the trial court erred in recalculating his weekly child support obligation at $175,
      alleging that the child support obligation worksheets submitted by the parties show the correct figure to be
      $157. We note that Mother concedes the issue. See Appellee’s Br. at 16 (“Father’s child support obligation
      should be $157.00 per week as requested by Father in his brief on appeal.”). Thus, we remand with
      instructions to credit Father for any sums to which he may be entitled.

      Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015                            Page 2 of 20
      child in need of services (“CHINS”). The abuse allegations against Father were

      unsubstantiated, and Father filed a petition for custody modification in the

      CHINS court. The CHINS court appointed Dr. Richard Lawlor to perform a

      custody evaluation. Mother and Father submitted to the evaluation, and Dr.

      Lawlor recommended that Father be given custody based on Mother’s pattern

      of undermining his relationship with the Children by demeaning him to the

      Children, interfering with his parenting time, and failing to inform him of

      important matters pertaining to legal custody. The CHINS court held a hearing

      in March 2012. In June 2012, the CHINS court issued special findings and a

      judgment dismissing the protective order and denying Father’s request for

      custody modification. By this time, Father had not had his parenting time with

      the Children for approximately a year. As part of the order, Father was to

      undergo two weeks of supervised parenting time and resume normal

      unsupervised time thereafter.


[5]   Mother did not bring the Children to the first unsupervised parenting time

      exchange at the beginning of July 2012 and allowed Father only a few days of

      parenting time instead of half the summer as required by court order. On July

      15, 2012, Mother accused Father of abusing C.M. by smacking him on the face.

      She called the police, but no criminal charges were filed. The next day, DCS

      received a report of the alleged abuse, but found it to be unsubstantiated.


[6]   On September 1, 2012, Father had parenting time with the Children at his

      home. During that time, an auto accident occurred in front of Father’s home,

      and he and Wife went outside to assist the victims and talk with police. Father

      Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015   Page 3 of 20
      and Wife could see the Children playing inside the house. C.M. began texting

      Mother, who became concerned that C.M. was being hurt, presumably by

      Father. She called the police, and the investigating officer was the same officer

      who had been present with Father at the accident scene. The officer found that

      Father could not have harmed C.M. and that C.M. showed no signs of injury. 2

      The alleged abuse was unsubstantiated.


[7]   During his parenting time on September 16, 2012, Father took the Children and

      three others to the park. C.M. later told Maternal Grandmother that Father

      had wrapped his head in bubble wrap and struck him in the stomach and nose.

      Two days after the alleged incident, C.M. had a regularly scheduled

      appointment with his otolaryngologist for nasal cauterization. The doctor

      found no evidence of an injury, and neither Mother nor C.M. mentioned it to

      him. Maternal Grandmother contacted DCS. Although DCS initially

      substantiated the incident, it was later found to be unsubstantiated.


[8]   Mother denied Father any parenting time after September 16, 2012. On

      September 28, 2012, she sought and was granted a protective order against

      Father stemming from her bubble wrap allegation. In October, the Indianapolis

      Metropolitan Police Department sent a detective specializing in child abuse

      cases to investigate the allegations. Meanwhile, in November 2012, Father filed

      a verified petition for contempt against Mother based on her denial of his court-



      2
        The guardian ad litem later reviewed the transcript of the text messages and found that they were vague
      and did not implicate Father.

      Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015                        Page 4 of 20
       ordered parenting time and her failure to notify him of the Children’s medical

       appointments. He also filed a verified motion to enforce parenting time. In

       December 2012, the detective notified Mother that criminal charges would not

       be filed due to a lack of evidence. In February 2013, Mother filed a verified

       petition for modification of parenting time, claiming that a criminal

       investigation was pending regarding her allegations that Father had abused

       C.M. with bubble wrap. The bubble wrap allegation was never substantiated.


[9]    On September 24, 2013, Father filed a verified petition for modification of

       physical and legal custody. He also sought a permanent injunction prohibiting

       Mother from interfering with parenting time and filed a motion to appoint a

       guardian ad litem (“GAL”). GAL Denise Hayden interviewed the Children as

       well as Mother and Father. She found many of C.M.’s responses to her

       questions about Father to be strange and possibly coached and found him to be

       immature. She found that C.M. might be demonstrating his love and support

       for Mother “by going along with whatever she says and by endorsing her no

       matter what.” Appellant’s App. at 246. GAL Hayden also reported that she did

       not believe that Father was abusive to the Children and that she “[did] not

       believe that mother [would] willingly allow the children to have a healthy

       relationship with their father.” Id. In January 2014, she filed her GAL report

       recommending that Father be granted custody and that Mother have supervised

       visitation pending a psychological evaluation.


[10]   On March 14, 2014, Father sought an emergency custody hearing and

       emergency order of custody modification. At the emergency hearing, the trial

       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015   Page 5 of 20
       court dismissed the protective order against Father and denied his emergency

       petition for custody modification. The trial court held all other motions for

       consideration during a hearing eventually conducted in May 2014.


[11]   On August 12, 2014, the trial court entered findings of fact and conclusions

       thereon in an order holding Mother in contempt for denying Father’s parenting

       time, denying Father’s petition for custody modification, adjusting Father’s

       weekly child support obligation upwards to $175, and directing Mother to pay

       $20,000 of Father’s attorney fees.


[12]   Mother filed a motion to reconsider the contempt finding and the order of

       attorney fees, which the trial court denied. Father now appeals the trial court’s

       denial of his petition for custody modification and recalculation of child

       support. Additional facts will be provided as necessary.


                                     Discussion and Decision

[13]   Where, as here, on request of the parties, the trial court issues findings of fact

       and conclusions thereon pursuant to Indiana Trial Rule 52(A), we apply a two-

       tiered standard of review. 3 Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1076-77 (Ind.

       Ct. App. 2011), trans. denied. First, we determine whether the evidence supports

       the findings, and second whether the findings support the judgment. Id. at




       3
         The parties dispute the applicable standard of review. Here, Father’s counsel requested special findings
       pursuant to Indiana Trial Rule 52(A). Appellant’s App. at 109.

       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015                         Page 6 of 20
       1077. We will reverse only if there is no evidence supporting the findings or the

       findings fail to support the judgment. Id. 4 We review the findings of fact using

       a clearly erroneous standard. Id. Clear error occurs when our review of the

       evidence most favorable to the judgment leaves us firmly convinced that a

       mistake has been made. Id. We review the conclusions of law using a de novo

       standard. Id.


[14]   Father contends that the trial court’s findings of fact do not support its

       judgment denying his petition to modify custody. The party seeking a

       modification of custody bears the burden of demonstrating that the existing

       custody order should be altered. Arms v. Arms, 803 N.E.2d 1201, 1208 (Ind. Ct.

       App. 2004). The trial court “may not modify a child custody order unless: (1)

       the modification is in the best interests of the child; and (2) there is a substantial

       change in one (1) or more of the factors that the court may consider under

       [Indiana Code Section 31-17-2-8] …” Ind. Code § 31-17-2-21(a). “In making

       its determination, the court shall consider the factors listed under section 8 of




       4
          We note that several of the trial court’s findings are not proper findings. Instead, they are merely
       recitations of testimony. For example, several findings contain phrases such as, “Father testified,”
       “Petitioner’s mother … testified,” and “Ms. Chavkin testified.” Appellant’s App. at 26-27, 29. Findings that
       indicate that the testimony or evidence was this or that are not findings of fact. Parks v. Delaware Cnty. Dep’t of
       Child Servs., 862 N.E.2d 1275, 1279 (Ind. Ct. App. 2007). Rather, a “finding of fact must indicate, not what
       someone said is true, but what is determined to be true, for that is the trier of fact’s duty.” Id. (emphasis
       added) (citation omitted). In other words, the “trier of fact must adopt the testimony of the witness before
       the ‘finding’ may be considered a finding of fact.” Id. (citation omitted).




       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015                              Page 7 of 20
       this chapter.” Ind. Code § 31-17-2-21(b). Indiana Code Section 31-17-2-8 states

       in pertinent part,

               The court shall determine custody and enter a custody order in
               accordance with the best interests of the child. In determining the best
               interests of the child, there is no presumption favoring either parent.
               The court shall consider all relevant factors, including the following:
               (1) The age and sex of the child.
               (2) The wishes of the child’s 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
                        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.


[15]   Here, the trial court’s extensive findings of fact include the following: 5




       5
         The trial court’s findings refer to Mother as “Petitioner” and “Mother” interchangeably and to Father as
       “Father” and “Mr. Maddux” interchangeably. For the sake of consistency and clarity, we use “Mother” and
       “Father” throughout.

       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015                      Page 8 of 20
        9. Dr. Richard Lawlor performed a custody evaluation and testified at
        the March 8, 2012 hearing.

        10. Therein, Dr. Lawlor recommended custody be modified to Father
        due to Mother’s “pattern of undermining of [Father’s] relationship
        with the boys” ….

        11. Special Findings were issued on or about June 7, 2012, dismissing
        [Mother’s] Order of Protection and denying Father’s request for
        modification of custody.

        ….

        17. There are several cases on point that are illustrative regarding the
        course of the present case.

        -Arms v. Arms, 803 N.E.2d 1201 (Ind. Ct. App. 2004): Father was
        granted sole physical custody and Mother’s parenting time was
        restricted to every-other-Sunday, non-overnight visitation after Mother
        made false allegations of abuse that were unsubstantiated against
        Father and his then-girlfriend. Mother spoke negatively about Father
        and his girlfriend to the children, and denied Father his entire weekend
        parenting time. The child began seeing a therapist, who determined
        the child was being emotionally harmed, and the child was being
        coached as to false statements regarding abuse. The child’s therapist
        noted that the child was worried about upsetting his Mother. The
        Court allowed evidence from a previous hearing showing a pattern of
        behavior by Mother. The Court held, “past behavior is a valid
        predictor for future conduct.” Id. at 1210.

        -Albright v. Bogue, 736 N.E.2d 782 (Ind. Ct. App. 2000): Mother made
        allegations of sexual abuse against Father to the child’s doctor. The
        abuse allegations were unfounded. Mother also alleged that the child’s
        Paternal Grandmother had sexually abused the minor child. The
        allegations were unsubstantiated by DCOFC (Delaware County Office
        of Family and Children). Testimony was given that Mother was
        putting up barriers to visitation because she did not want Father to
        have the child for any reason. The child was exhibiting “anxiety,
        depression, and aggressive behavior, and that he had verbalized a wish
        to be dead.” Id. at 786. Testimony was given about a pattern of

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015           Page 9 of 20
        Mother’s complaints, and that Mother was in need of individual
        psychotherapy. The Court held: “… the real issue in this case is not
        whether [Mother] is being penalized in some fashion for her reporting
        of alleged child molestation to the authorities, [sic] Rather is it clear
        that the trial court’s decision to modify custody was based upon ample
        evidence to support the conclusion that [Mother] was causing harm to
        [the child] by placing pressure on him to say that he was being
        molested and by attempting to interfere with [Father’s] parenting
        time.[”] Id. at 789, emphasis added. Father was granted custody after
        the Court held that the substantial change in circumstances leading to
        modification of custody to Father was misconduct that placed the
        child’s mental and physical welfare at stake. Id. at 790.

        -Hanson v. Spolnik, 685 N.E.2d 71 (Ind. Ct. App. 1997): Mother made
        allegations of sexual abuse by Father to a therapist that Father never
        met with. CPS did not substantiate allegations. Mother called Father
        names in front of the child, including “Satan.” Father argued that
        Mother was engaging in a pattern of parental alienation affecting the
        child’s emotional and psychological needs. The Court found that
        Mother had worked to destroy the relationship between the child and
        Father since the divorce. Father was granted sole custody of the minor
        child, and was awarded $62,500 in attorney fees, to be paid by Mother.

        18. Almost immediately after the last Order of the Court was issued in
        the 2012 modification hearing in July, 2012, Mother began to deny
        Father parenting time without justification or Court Order.

        19. On or about July 1, 2012, when Father’s parenting time was to
        resume, after Father successfully completed a short period of
        supervised visitation due to the extended period he had been denied
        parenting time with his sons, Mother denied him time, and told police
        officers that Father was not to have parenting time until a new Court
        trial was held.

        ….

        22. Mother allowed Father some parenting time in July and August,
        2012, but not his half of the summer as he was granted per the Court’s
        Order.


Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015       Page 10 of 20
        23. Mother took the Children out of state to St. Louis, Missouri,
        without informing Father, and during his summer parenting time in
        2012.

        24. The first allegation of abuse was made against Father on or about
        July 15, 2012, just over one (1) month after the Order from the 2012
        modification trial.

        25. Mother contacted the police and Department of Child Services
        (herein “DCS”) on or about July 15, 2012, claiming that Father hit
        C.M. in the face.

        26. The abuse was unsubstantiated by DCS, and no charges were filed
        against Father.

        ….

        30. There is no credible evidence to corroborate allegations of abuse
        on or about July 15, 2012. That the Court finds that the parties
        communicated by phone on or about July 28, 2012, where Mother
        notes that C.M. has a lying problem, and she can get DCS to stop if
        she wants ….

        31. Mother proposed a “pact” on or about July 28, 2012 that she
        would discuss any allegations of abuse with Father.

        32. On or about September 1, 2012, Mother called the police alleging
        that Father had injured C.M. during his parenting time.

        33. A police officer that responded to the call and allegation had been
        outside with Father for an extended period, as a[n] automobile
        accident had occurred just in front of Father’s house.

        34. The police officer did not make a report about the allegations.
        Father was not criminally charged, and the officer spoke with C.M.
        regarding the incident.

        35. There is no evidence to support allegations of abuse on or about
        September 1, 2012.


Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015        Page 11 of 20
        36. Mother alleged, in her petition for Order of Protection filed on or
        about September 26, 2012 that Father injured C.M. by wrapping his
        face with bubble wrap after a nosebleed, purported to have happened
        on or about September 16, 2012.

        37. Photographic and testimonial evidence do not show any injury to
        the face, head or neck of the child.

        ….

        39. This matter was not reported to police until approximately one
        week later.

        40. The Petition for Order of Protection was not filed until
        approximately a week and a half later.

        41. C.M. had an appointment [with otolaryngologist Thomas
        Fairchild] for nasal cauterization on September 18, 2012, which was
        scheduled in August, 2012 due to chronic nasal issues.

        42. Dr. Thomas Fairchild … noted that C.M. has a history of issues
        with nosebleeds and prior cauterizations of his nose.

        43. Dr. Fairchild testified that he did not observe any trauma or
        injuries to C.M. that would raise suspicions of abuse during a
        scheduled appointment on September 18, 2012.

        44. Mother told DCS and the pediatrician, whom she took C.M. to
        see after the nasal cauterization, that the cauterization was due to
        C.M. being hit by Father, not a previously scheduled appointment due
        to chronic nasal issues.

        45. Neither Mother nor C.M. noted any abuse allegations to Dr.
        Fairchild or his staff on the morning of September 18, 2012, but did
        make allegations to the pediatrician that same afternoon.

        46. DCS did initially substantiate the allegations against Father
        related to the bubble wrap contention, thereafter, upon Father filing for
        an administrative appeal, the findings of abuse were unsubstantiated,
        without the need for a hearing.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015       Page 12 of 20
        ….

        48. Despite having communicated extensively with Detective
        Chappell and knowing that criminal charges were not forthcoming,
        Mother filed her Verified Motion for Modification of Parenting Time,
        in which she alleged that the matter was being referred to the local
        prosecutor for possible criminal charges.

        ….

        50. Maternal Grandfather … transports the Children to doctor and
        therapy appointments on a regular basis, rather than Mother.

        51. Maternal Grandfather also has a criminal history involving sexual
        abuse against a family member, and served jail time for same.

        ….

        53. Until recently, after March, 2014, the minor Children were
        sleeping in the same room, and often the same bed as Mother, with no
        privacy screen or divider.

        54. Until December, 2012, Mother denied Father parenting time with
        either G.M. or C.M., despite the fact that the Order of Protection did
        not cover G.M. and there were no allegations of abuse or neglect
        relating to G.M. at any time.

        ….

        56. Mother’s denial of Father’s parenting time has been a consistent
        cycle since 2008, and Mother has been denying Father parenting time
        by making reckless allegations of abuse and neglect consistently since
        2011.

        ….

        61. Mother’s failure to pay her student loans has negatively affected
        Father’s credit.

        62. That the Court finds that Father has incurred substantial legal fees

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015        Page 13 of 20
        to defend against the above-pending matters, in the amount of
        approximately $49,000.00 ….

        ….

        64. [GAL] Hayden was concerned that Mother had consented to
        C.M. being subjected to corporal punishment at school after C.M. was
        found to be stealing and lying. Also, that Mother portrays Father to
        the minor Children as a “cheater” and the Children’s belief that the
        divorce was “daddy’s fault.” GAL Hayden also noted the pattern of
        false allegations by Mother that begin almost immediately after the
        resolution of CPS complaints and Father’s parenting time resuming.
        GAL Hayden further was concerned about the evidence of Mother’s
        resistance to Father’s relationship with the Children over a period of
        three (3) years.

        65. [GAL] Hayden was also concerned about G.M.’s disclosure to her
        that he had been suicidal due to people telling him to shut up. Mother
        did not seek counseling for G.M. for his suicidal thoughts.

        66. The GAL noted in both her report and through her testimony that
        she did not believe that Father is abusive to the Children.

        67. [GAL] Hayden notes the wishes of the children to remain living
        with their Mother, based on fear and anxiety of the lack of recent
        positive relationship with Father, and of unfamiliarity with that
        unknown generally.

        68. [GAL] Hayden further notes the positive emotional development
        of the two children in their current situation.

        69. [GAL] Hayden recommended that Father be granted primary
        physical custody of the minor Children and sole legal custody.
        Additionally, that Father should be the parent exclusively authorized
        to seek medical treatment for the Children.

        70. GAL Hayden recommended that Mother only have supervised
        parenting time or contact by telephone or mail until she completes a
        psychological evaluation by a Ph.D. psychologist in her report filed on
        or about January, 2014.

Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015     Page 14 of 20
       Appellant’s App. at 20, 22-29. 6


[16]   The trial court’s conclusions of law state in pertinent part,

                 75. Mother’s continual actions of false allegations, denying Father
                 parenting time, and leaving the Children unsupervised with Maternal
                 Grandfather is irreparably harming to the Children’s relationship with
                 Father and their emotional wellbeing, and for it the court finds Mother
                 in contempt.

                 76. Father has proved there is a substantial and continuing change in
                 circumstances, but has not proved change of custody is in the best
                 interests of the children. The parties shall be joint legal custodians of
                 the two children.

                 77. Parenting time shall follow a graduated path reuniting Father with
                 the children. The parties have picked a counselor/provider to assist
                 with this function. This shall as soon as practicable be set on a course
                 of unsupervised parenting time. The child support order is calculated
                 on 91-95 overnights per year, and this will obviously include split
                 holiday and summer seasons.

                 78. The court will not summarily substitute its judgment over the
                 considered and professional opinion of such provider, but this order is
                 intended to make clear that reunification of children and Father is the
                 paramount concern.

                 ….

                 85. Father has failed to prove both prongs of the test for change of
                 custody, specifically, that there is a substantial change in
                 circumstances, but that this does not warrant a change in custody
                 because of both the need for a therapeutic period of reunification, and
                 because the children are developing well according to their ages and
                 maturity.



       6
           We note that several pages in the appellant’s appendix are out of order.


       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015          Page 15 of 20
                86. Mother has willfully[]denied Father parenting time by making
                reckless and sometimes baseless allegations, in contempt of the Court’s
                Order, and attorney fees are awarded against Mother in the amount of
                $20,000.00, payable to counsel for Father in 90 days.

                87. Mother has willfully failed to pay her student loans or refinance
                same so that Father’s credit is not affected, in violation of the Court’s
                Orders.



       Id. at 30-31.


[17]   In support of his modification petition, Father claims that Mother’s egregious

       and ongoing pattern of disregarding his visitation rights and filing

       unsubstantiated allegations of abuse has been detrimental to his relationship

       with the Children and to their emotional health. See Ind. Code § 31-17-2-8(a)(6)

       (in determining best interests, the trial court shall consider all relevant factors,

       including “the mental and physical health of all individuals involved.”). A

       custodial parent’s general lack of cooperation or isolated acts of misconduct

       cannot serve as a basis for custody modification. Hanson v. Spolnik, 685 N.E.2d

       71, 78 (Ind. Ct. App. 1997), trans. denied. However, “[i]f one parent can

       demonstrate that the other has committed misconduct so egregious that it

       places a child’s mental and physical welfare at stake, the trial court may modify

       the custody order.” Id.; Albright v. Bogue, 736 N.E.2d 782, 790 (Ind. Ct. App.

       2000).


[18]   With respect to the cases cited by Father and by the trial court in its order, we

       recognize that those cases involved this Court’s affirmances of trial court orders

       granting custody modification petitions based on the custodial parent’s pattern

       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015         Page 16 of 20
       of egregious conduct jeopardizing the emotional and physical wellbeing of the

       child. Arms, 803 N.E.2d at 1210; Albright, 736 N.E.2d at 789; Hanson, 685

       N.E.2d at 78-79. In contrast, here we are asked to reverse a trial court

       judgment denying a custody modification petition where the evidence and

       findings indicate a pervasive pattern of egregious behavior by the custodial

       parent adversely affecting the children’s wellbeing. Although we are hesitant to

       tread upon the trial court’s unique position as finder of both fact and law, we

       note that our decision is based on the conclusions of law, which we review de

       novo.


[19]   We recognize that “the fact-finder is not required to accept the opinions of

       experts regarding custody,” Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct.

       App. 2000), but the findings here indicate that the trial court did accept the

       GAL’s conclusions and applied them to other determinations such as its

       contempt citation against Mother. In fact, in Conclusion 75, the trial court

       characterizes Mother’s conduct as causing irreparable harm not only to the

       Children’s relationship with Father but also to “their emotional wellbeing.”

       Appellant’s App. at 30. Yet, with respect to the Children’s best interests, the

       trial court states in Conclusion 85, “the Children are developing well according

       to their ages and maturity.” Id. at 31. These conclusions are inconsistent, and

       the findings do not support the court’s conclusion regarding best interests. For

       example, the findings include references to G.M.’s suicidal thoughts and

       Mother’s lack of response to them as well as information about C.M.’s

       problems with lying and stealing.


       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015   Page 17 of 20
[20]   The trial court’s conclusions characterize Mother’s contumacious conduct as

       “continual” and the change in circumstances as “substantial and continuing.”

       Id. at 30-31. Mother evidently did not learn from the 2012 proceedings but

       instead persisted not only in denying Father his parenting time but also in

       falsely accusing him of abuse. The evidence in these proceedings is similar in

       nature to that of the 2012 proceedings, and in the intervening years, the

       Children have been further deprived of Father’s parenting time and are more

       fearful of him due to the protracted lack of contact and Mother’s doubling

       down on her unsubstantiated accusations against him. In other words, Mother

       has created the problem from which she now benefits.


[21]   After entering finding after finding illustrating Mother’s audacious and

       successful attempts to alienate Father from the Children, the trial court

       concluded that such conduct “does not warrant a change of custody.” Id. at 31.

       At the same time, the court emphasized that “this order is intended to make

       clear that reunification of children and Father is the paramount concern.” Id. at

       30. While we appreciate the trial court’s sensitivity to “the need for a

       therapeutic period of reunification” between Father and the Children, id. at 31,

       we fail to see why the therapeutic approach cannot be coupled with the change

       in custody to Father. Mother has shown a pervasive and consistent disregard

       for legal processes and court orders and, having once again averted a change in

       physical custody, there is little incentive for her to suddenly comply with the




       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015   Page 18 of 20
       court’s order concerning the Children’s measured reunification with Father. 7

       Even if she does, there is no reason to believe that she would do anything other

       than undermine it.


[22]   Simply put, time is running out. These children, ages one and three at the time

       of the divorce, are now eleven and thirteen. They not only have been deprived

       of their relationship with Father but also have been relentlessly subjected to

       Mother’s jaded opinions of him and her egregious and unsubstantiated

       accusations against him. The overwhelming evidence and extensive findings of

       fact show a mother who has jeopardized her children’s emotional health in

       attempting to settle a score with their father. In ruling on Father’s petition for

       contempt, the trial court concluded that Mother had “irreparably harmed [the

       Children’s] emotional wellbeing.” Appellant’s App. at 30. However, in

       assessing the Children’s best interests, the court inexplicably concluded the

       opposite. The findings support the trial court’s conclusion of Mother’s

       irreparable harm to the Children; they do not support the trial court’s

       determination concerning best interests. The trial court clearly erred in

       concluding that the Children’s best interests do not warrant a change in

       custody. Consequently, we reverse the denial of Father’s petition for custody

       modification and remand for entry of judgment in his favor on this issue and a

       new calculation of the parties’ child support obligations.




       7
        We sincerely hope that Mother has complied and that sufficient time has elapsed to have afforded the
       Children the opportunity to become reacclimated to spending time with Father.

       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015                     Page 19 of 20
[23]   Reversed and remanded.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1409-DR-618| August 11, 2015   Page 20 of 20
