                                                                FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                    Apr 30 2012, 9:37 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DAWN E. WELLMAN                                 RYAN H. CASSMAN
Allen Wellman McNew LLP                         CATHY M. BROWNSON
Greenfield, Indiana                             Coots, Henke & Wheeler, P.C.
                                                Carmel, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

C.F.,                                           )
                                                )
        Appellant-Petitioner,                   )
                                                )
               vs.                              )      No. 30A01-1110-DR-467
                                                )
M.R.,                                           )
                                                )
        Appellee-Respondent.                    )


                     APPEAL FROM THE HANCOCK SUPERIOR COURT
                            The Honorable Terry K. Snow, Judge
                              Cause No. 30D01-0604-DR-268



                                      April 30, 2012


                MEMORANDUM DECISION – NOT FOR PUBLICATION



BAKER, Judge
       C.F. (Mother) appeals the trial court’s order granting M.R.’s (Father) motion to

modify custody of the parties’ five-year-old son, A.R. Specifically, Mother argues that

the trial court improperly modified custody based on evidence of a change that was not

substantial enough to justify the modification. Finding no error, we affirm the decision of

the trial court.

                                         FACTS

       Mother and Father were married in 2001, and A.R. was born in 2005. The parties’

marriage was dissolved in 2008. At that time, the parties both lived in Greenfield where

A.R. attended pre-school and participated in activities such as soccer and swimming. The

trial court awarded physical custody of A.R. to Mother and awarded Father 182 days of

parenting time per year. The parties agree that they basically split custody of A.R. This

arrangement worked well until Mother and Father both moved, and it became time for

A.R. to enter kindergarten. In June 2010, Father filed a petition for modification of child

custody.

       Testimony at the hearing on Father’s petition revealed that Father now lives in

Indianapolis with two children from prior relationships, his pregnant wife, and her three-

year-old daughter.   Father is employed as a fire fighter and works a rotating shift of

twenty-four hours on duty and forty-eight hours off duty. Mother lives in Knightstown

with her boyfriend and his children. She is employed as an optician.



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       The testimony further reveals that Father requested the modification of custody so

that A.R. could attend a private Lutheran school and grow up with his half-sisters. Father

explained that he would be able to pick up A.R. and his sisters after school and take them

home on the three to four days per week he is off duty. A.R. would have more stability in

his life because he would not have to make the frequent trips between Henry County and

Marion County. A.R.’s stepmother testified that the family lives in a three-bedroom

home with a pool and a hot tub, and A.R. has his own bedroom. A.R. and his stepmother

get along well. Mother testified that she lives in Knightstown in her boyfriend’s house.

She planned for A.R. to attend a public school in Knightstown. He would ride the school

bus to a babysitter’s house in the afternoon.

       Following the hearing, the trial court recognized that this was a “hum dinger” of a

case because both parents love A.R. and have historically been able to “negotiate things

out.” Tr. p. 102. The court told the parties that it was taking the matter under advisement

because it had to “think about [and sleep on] this one a little bit.” Id. at 103. The trial

court subsequently issued an order modifying custody in favor of Father and awarding

Mother extended parenting time to include every weekend from 6:00 p.m. on Friday

evening until 7:00 p.m. on Sunday evening as well as one-half of summer vacation time

and every spring break. In its order, the trial court explained that the two parties have

basically shared split custody since the dissolution and that there is no preference for one

parent over the other. The court further explained that it had considered all of the



                                                3
statutory factors and found a substantial and continuing change in circumstances caused

by A.R.’s increased age and readiness for regular school. Mother now appeals.

                             DISCUSSION AND DECISION

       We review child custody modifications for an abuse of discretion. Julie C. v.

Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010). 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. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Trial

court judges are therefore able to assess witness credibility and character through both

factual testimony and intuitive discernment. Id. They are also in a superior position to

ascertain information and apply common sense, particularly in the determination of the

best interests of the involved children. Id.

       In the initial custody determination, both parents are presumed equally entitled to

custody, but a petitioner seeking a subsequent modification bears the burden of

demonstrating that the existing custody order should be altered. Julie C., 924 N.E.2d at

1256. When reviewing a trial court’s decision modifying custody, we may not reweigh

the evidence or judge the credibility of witnesses. Id. Rather, we consider only the

evidence most favorable to the judgment and any reasonable inferences to be drawn

therefrom. Id.




                                               4
        Indiana Code section 31-17-2-21 provides that a 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 or more of the factors that the court may consider under

Indiana Code section 31-17-2-8.            Section 31-17-2-81 provides that the trial court is to

consider 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 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.

        Here, Mother first contends that the trial court erred when it found that the parties

had split custody of A.R. because the dissolution decree clearly awarded Mother primary

physical custody of her son. However, our review of the evidence reveals that although

Mother had physical custody of her son, the court order provided Father with 182


1
 Mother correctly points out that the trial court stated that it considered the factors set forth in Indiana
Code section 31-14-13-2, which is the paternity statute rather than the child custody modification statute.
However, both statutes set forth the same factors. The trial court therefore considered the proper factors,
and the court’s only mistake was as to the citation.

                                                     5
overnight visits. Further, during her testimony, Mother admitted that she and Father split

custody of their son. We find no error in the trial court’s statement, which is supported

by the facts and the parties’ admissions, is not erroneous, and we find no error.

       Mother also argues that the trial court erred in modifying custody in favor of

Father. However, our review of the evidence reveals that the trial court’s judgment

contains its own express finding that there was a substantial change in circumstances

caused by A.R.’s increased age and his preparing to go to regular school. We cannot

conclude that this was error, and Mother’s argument that the change was not substantial

enough to support the custody modification is merely a request to reweigh the evidence,

which we cannot do.

       Put another way, an appellate court may not substitute its own judgment for that of

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

Best, 941 N.E.2d at 503. On appeal it is not enough that the evidence might support

some other conclusion, but it must positively require the conclusion contended for by the

appellant before there is a basis for reversal. Id. Here, the evidence simply does not

positively require Mother’s conclusion, and we find no error in the trial court’s decision

to place A.R.’s primary physical custody with Father, subject to its specifications of

parenting time, which Mother does not challenge.

       The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.



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