      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                         Apr 08 2015, 9:57 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Bryan Lee Ciyou                                           Vicki L. Fortino
      Lori B. Schmeltzer                                        Hocker & Associates, LLC
      Ciyou & Dixon, P.C.                                       Indianapolis, Indiana
      Indianapolis, Indiana




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      C.R.,                                                     April 8, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                21A01-1407-DR-315
              v.                                                Appeal from the Fayette Superior
                                                                Court
                                                                The Honorable Ronald T. Urdal,
      V.R.,                                                     Judge
      Appellee-Plaintiff                                        Cause No. 21D01-0906-DR-444




      Friedlander, Judge.

[1]   C.R. (Father) appeals from the trial court’s order modifying child custody. On

      appeal, Father presents the following issues:

          1. Did the trial court violate Father’s due process rights by holding a
             hearing in his absence?

      Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015        Page 1 of 15
          2. Did the trial court abuse its discretion in modifying custody?

[2]   We affirm.

[3]   Father and V.R. (Mother) were married and had two sons together, X.R., who

      was born in 2008, and L.R., who was born in 2009 (collectively, the Children).

      Mother and Father’s marriage was dissolved in November 2009 and Mother

      was awarded custody of the Children, with Father receiving parenting time. In

      February 2012, custody of the Children was transferred to Father based on the

      trial court’s finding that Mother had withheld the Children from Father and

      intentionally thwarted his efforts to see them by moving to Kentucky and

      establishing her sister as the Children’s legal guardian. Mother was awarded

      parenting time in accordance with the Indiana Parenting Time Guidelines.

[4]   In January 2014, Mother filed a petition to modify custody, in which she

      alleged, among other things, that Father had not allowed her to exercise

      parenting time and that Father had not provided Mother with the Children’s

      medical information. A hearing was scheduled for May 29, 2014. Two days

      before the hearing, Father filed a motion for a continuance. Although his

      attorney appeared on his behalf, Father failed to appear for the May 29 hearing,

      at which his motion for a continuance was denied. Evidence was then

      presented in Father’s absence. Specifically, Mother testified without objection

      from Father’s counsel. At the conclusion of her direct examination, Father’s

      counsel declined to cross-examine Mother, asserting that he was unable to do

      so without Father’s presence. Father’s counsel then asked the trial court to

      Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 2 of 15
      reconsider his motion to continue. At that time, the trial court stated that it was

      taking the matter under advisement and told Father’s counsel that it would

      consider further hearing if counsel was able to establish that Father had a good

      reason for being absent.

[5]   Later that day, Father called the trial court’s offices and indicated to trial court

      staff that he was not aware that he was required to be in court that day. Court

      staff advised Father to contact his attorney. After receiving a letter from

      Father’s attorney, the trial court set the matter for a second hearing on June 13,

      2014.1 Shortly thereafter, Mother filed an objection to the new hearing.


[6]   At the beginning of the June 13 hearing, the trial court stated it had been

      informed that Father had been told by his attorney’s secretary that he was not

      required to appear for the May 29 hearing because a motion for continuance

      had been filed. The trial court stated that it had spoken to the secretary and

      accepted her statement, and it was going to give Father the opportunity to

      present evidence. At that time, Mother’s counsel stated that the trial court had

      adjourned the May 29 hearing without allowing her to present all of her

      evidence, and the trial court agreed to allow her to continue her presentation.

      Mother also asked the trial court whether it would include the evidence

      presented at the May 29 hearing, and the trial court, without objection from

      Father, responded affirmatively. Thereafter, both Mother and Father presented




      1
          Father has not included a copy of this letter in his Appellant’s Appendix.


      Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 3 of 15
      their evidence and the trial court took the matter under advisement. On July

      26, 2014, the trial court issued its order modifying custody of the Children to

      Mother, finding specifically that “the children’s relationship with their mother

      has been harmed as the result of the actions of the father and his girlfriend and

      that it is in the bests interests of the children that they are in the custody of their

      mother.” Appellant’s Appendix at 16. Father now appeals. Additional facts will

      be provided where necessary.

                                                         1.

[7]   Father first argues that the trial court violated his due process rights by holding

      the May 29 hearing in his absence. Father’s argument in this regard has been

      waived. Father was represented by counsel at the May 29 hearing, and Father’s

      counsel did not object to Mother’s presentation of evidence on that date.

      Moreover, Father did not object to Mother’s request at the June 13 hearing that

      the trial court incorporate the evidence from the May 29 hearing. At no point

      during either hearing did Father argue that a due process violation had

      occurred. Father may not raise this argument for the first time on appeal. See

      Hite v. Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175 (Ind. Ct.

      App. 2006) (explaining that constitutional claims, including due process claims,

      may be waived when raised for the first time on appeal).


[8]   Waiver notwithstanding, Father has fallen far short of establishing a due

      process violation. The Due Process clause of the Fourteenth Amendment of

      the United States Constitution “requires notice, an opportunity to be heard, and


      Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 4 of 15
       an opportunity to confront witnesses.” Morton v. Ivacic, 898 N.E.2d 1196, 1199

       (Ind. 2008). Father makes no argument that he did not receive notice of the

       May 29 hearing or that he was denied an opportunity to be heard. Instead, he

       argues only that he was denied an opportunity to cross-examine witnesses at the

       May 29 hearing. Father’s claim is without merit. Although Father was not

       present at the May 29 hearing, he was represented by an attorney. See United

       Farm Bureau Mut. Ins. Co. v. Groen, 486 N.E.2d 571, 573 (Ind. Ct. App. 1985)

       (explaining that an “attorney is the agent of the party employing him, and in

       court stands in his stead”), trans. denied. Father’s attorney had the opportunity

       to cross-examine Mother on that date, but declined to do so.


[9]    To the extent Father argues that his personal appearance was required, we note

       that Father had the opportunity to be present to cross-examine Mother, but he

       did not seize it due to his failure to appear. Although Father’s failure to appear

       might be attributable to misinformation he received from his attorney’s

       secretary, it was certainly not attributable to the trial court. In any event, any

       harm Father suffered due to his failure to appear at the May 29 hearing was

       cured at the June 13 hearing, when Father was again extended the opportunity

       to cross-examine Mother, and this time seized it. No due process violation

       occurred in this case.

                                                          2.

[10]   Next, Father argues that the trial court abused its discretion in modifying

       custody. It is well established that we review custody modifications for abuse of


       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 5 of 15
       discretion, granting particular deference and latitude to our trial courts in family

       law matters. See Werner v. Werner, 946 N.E.2d 1233 (Ind. Ct. App. 2011), trans.

       denied. In reviewing a judgment issued with special findings of fact and

       conclusions thereon pursuant to Indiana Trial Rule 52(A), we first determine

       whether the evidence supports the findings and then consider whether the

       findings support the judgment. Id. We will reverse only if the judgment is

       clearly erroneous. Id. That is, we will reverse if our examination of the record

       leaves us with the firm conviction that a mistake has been made. Id. In making

       this determination, we consider only the evidence favorable to the judgment

       and all reasonable inferences flowing therefrom. Id. We will not reweigh the

       evidence or assess the credibility of the witnesses. Id.


[11]   Pursuant to Ind. Code Ann. § 31-17-2-21(a) (West, Westlaw current with all

       legislation of the 2015 First Regular Session of the 119th General Assembly

       effective through February 23, 2015), a trial court may not modify custody

       unless the modification is in the best interests of the child and there is a

       substantial change in one or more of the factors the court may consider in

       making an initial custody award, as set forth in I.C. § 31-17-2-8 (West, Westlaw

       current with all legislation of the 2015 First Regular Session of the 119th

       General Assembly effective through February 23, 2015). I.C. § 31-17-2-8

       provides that the court “shall 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.

       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 6 of 15
               (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,
               and if the evidence is sufficient, the court shall consider the factors
               described in section 8.5(b) of this chapter.
[12]   In reaching its decision to modify custody, the trial court entered the following

       relevant findings and conclusions:

               3. In an Order of this Court dated February 8, 2012, primary physical
                  custody of the minor children was transferred to Father with Mother
                  to have parenting time according to the Indiana Parenting Time
                  Guidelines (“IPTG”).
               4. Since that order Father has prevented Mother from exercising her
                  parenting time on a regular basis.
               5. Since that order Father has not communicated with her regarding
                  education as fully as required in I.C. 20-33-7-2 or the health
                  information as required by I.C. 16-39-1-7 and there has been too
                  little exchange of information as required by the IPTG.
               6. Father’s girlfriend is referred to as the children’s “mom” in most
                  school communications and [Mother] is referred to as the “bio
                  mom.” This relationship is interfering with and possibly replacing
                  the child[ren]’s primary relationship with their mother.

       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 7 of 15
               7. There have been three unsubstantiated reports of abuse and neglect
                   to the Indiana Department of Child services against the home of
                   [Mother]. [Mother’s] home has been found to be appropriate for the
                   children and Mother, her boyfriend . . . and his son . . . have all been
                   found not to be abusive or neglectful of [X.R.] and [L.R.].
               8. Mother does not use drugs or drink alcohol. She is currently
                   pregnant but is otherwise healthy and is not taking any medications
                   or seeing any physician or mental health provider.
               9. Father does not allow Mother to provide shoes or clothing for the
                   boys to use in his home and the minor child [X.R.] was forbidden to
                   use the glasses that Mother had gotten prescribed for him.
               10. Mother is employed and she has appropriate plans in place for the
                   minor children for the hours when she is at work. She currently has
                   no other children but is currently pregnant.
               11. [Mother’s boyfriend] also lives in [M]other’s home with his 8 year
                   old son . . . who has Asperger’s Syndrome and although
                   occasionally the boys all fight, Mother and [her boyfriend] have a
                   plan in place to keep the boys from fighting.
               12. Mother believes she is the appropriate parent to have full custody of
                   her children and that if she does she will make sure that Father has
                   his appropriate Parenting Time.

       Appellant’s Appendix at 14-15. After considering the evidence presented, the trial

       court found that there had been a substantial change in one of the statutory

       factors, namely, the interaction and interrelationship of the Children with their

       parent or parents. Specifically, the court found that “the [C]hildren’s

       relationship with their mother has been harmed as the result of the actions of

       the [F]ather and his girlfriend[.]” Id. at 16. The trial court went on to find that

       a change in custody was in the Children’s best interests.

[13]   On appeal, Father first argues that the trial court’s finding that Father and his

       girlfriend have harmed the relationship between Mother and the Children is

       unsupported by the record because there was no evidence presented concerning

       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 8 of 15
       Mother’s relationship with the Children prior to the February 2012 custody

       order. Thus, according to Father, no change in that relationship has been

       demonstrated. We disagree. Mother testified that since the change in custody

       in February 2012, her relationship with the boys had changed for the worse.

       Specifically, she stated that the boys seem confused about who their mother is.

       Mother testified that the Children usually call her by her first name and they

       refer to Father’s girlfriend as mom. This evidence supports the trial court’s

       finding that Mother’s relationship with the Children has deteriorated since the

       change in custody.


[14]   The trial court’s finding that the deterioration of the Children’s relationship

       with Mother was caused by Father and his girlfriend is likewise supported by

       the evidence.2 Mother testified that after Father was awarded custody in

       February 2012, she did not see the Children much at first. She testified that she

       lived two hours away from the Children and did not have a car, and Father was

       very controlling with respect to parenting time. Despite being awarded

       parenting time in accordance with the Indiana Parenting Time Guidelines,

       Mother stated that during that time, she “didn’t get much telephone time” and




       2
         Father argues that any problems in Mother’s relationship with the Children are due to her own parenting
       deficiencies. He goes on to list a number of these perceived deficiencies, many of which are based on events
       that occurred prior to the last change in custody, and some of which are not supported by the evidence most
       favorable to the judgment. In any event, Father’s arguments in this regard are nothing more than requests to
       reweigh the evidence and reach a conclusion opposite that of the trial court, which we will not do. See Dixon
       v. Dixon, 982 N.E.2d 24, 26 (Ind. Ct. App. 2013) (explaining that this court will not substitute our judgment
       for that of the trial court on a petition to modify custody “if any evidence or legitimate inferences support the
       trial court’s judgment”).

       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015                  Page 9 of 15
       that she was seeing the Children “maybe once a month” and that “sometimes

       [she] was only allowed to go up there and spend a couple hours and then come

       back.” Transcript of May 29 Hearing a 10. She testified further that Father

       regularly withheld her parenting time, causing her to miss birthdays, holidays,

       and school activities, and that it took a letter from her attorney to prevent

       Father from withholding parenting time on Christmas. She also testified that

       she had stopped trying to talk to the Children on the telephone when they are

       with Father because every time she called, she is unable to have a conversation

       with them because they are on speaker phone and there is a television blaring in

       the background or the Children are watching Father play video games.

[15]   Father admitted that he is hesitant to allow Mother to exercise her court-

       ordered parenting time when he feels the situation in her home is bad for the

       Children. He also admitted that he has attempted to unilaterally place

       conditions on Mother’s ability to exercise parenting time due to “negativity” he

       believed the Children were bringing home from their weekend visits from

       Mother. Exhibit Volume, Respondent’s Exhibit F. Specifically, Father told

       Mother that if she wanted to see the Children, visitation would occur in

       Wabash, where he lives, instead of Mother’s home in Plainfield. There was

       also extensive evidence presented concerning representations Father and his

       girlfriend have made to X.R.’s school regarding the Children’s relationship with

       Mother. Father’s girlfriend was listed as X.R.’s mother on some school forms,

       and on a student information sheet, Father’s girlfriend was listed as the mother,

       with the explanation that she was “Dad’s girlfriend” who X.R. “refers to as


       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 10 of 15
       mom”. Id., Petitioner’s Exhibit 1. In an email to X.R.’s teacher, Father’s

       girlfriend stated that X.R. did not have regular contact with Mother. The

       teacher forwarded the email to the school principal, who responded that Father

       had led her to believe that Mother had no custody or visitation. As a result of

       these communications, school officials became concerned that Mother would

       show up at the school unannounced and decided to practice an “intruder drill”

       as a precaution. Id. In another email to X.R.’s teacher, Father’s girlfriend

       stated that Father had decided to suspend Mother’s parenting time due to

       concerns about physical and sexual abuse in her home. A DCS investigation

       was conducted, and no abuse was substantiated. All of this evidence supports

       the trial court’s conclusion that Father and his girlfriend have worked together

       in an attempt to interfere with the Children’s relationship with Mother.

[16]   Father next takes issue with the trial court’s finding that Father has not shared

       school and health information with Mother as required by statute and the

       Indiana Parenting Time Guidelines (the Guidelines). Specifically, he argues

       that it was Mother’s burden to obtain such information on her own, and the

       trial court accordingly placed an impermissible burden on him. Father is

       correct that neither of the statutes referenced by the trial court placed a duty on

       Father to share education or health information with Mother. See Ind. Code

       Ann. § 16-39-1-7 (West, Westlaw current with all legislation of the 2015 First

       Regular Session of the 119th General Assembly effective through February 23,

       2015) (providing that custodial and noncustodial parents have equal access to

       their child’s health records); Ind. Code Ann. § 20-33-7-2 (West, Westlaw


       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 11 of 15
       current with all legislation of the 2015 First Regular Session of the 119th

       General Assembly effective through February 23, 2015) (providing that schools

       must allow custodial and noncustodial parents the same access to their child’s

       education records). As we will explain further below, however, the Guidelines

       do require Father to share information with Mother. Accordingly, we find the

       trial court’s erroneous citation of I.C. §§ 16-39-1-7 and 20-33-7-2 as additional

       sources of that obligation to be superfluous and harmless.

[17]   The Guidelines provide that

               Parents should obtain and share information about their children.
               Parents should take the initiative to obtain information about their
               child from the various providers of services. Each parent is responsible
               to establish a relationship with the child’s school, health care provider
               and other service provider. A child may suffer inconvenience,
               embarrassment, and physical or emotional harm when parents fail to
               actively obtain and share information.
       Ind. Parenting Time Guidelines, Section 1(D). Thus, while Father is correct

       that the Guidelines require each parent to establish a relationship with their

       child’s school and health care providers, they also require parents to obtain and

       share information about their children. With respect to school records and

       school activities, the Guidelines further provide as follows:

               1. School Records. Under Indiana law, both parents are entitled to
               direct access to their child's school records, Indiana Code § 20-33-7-2.
               Each parent should obtain school information on their own without
               depending on the other parent. A parent shall not interfere with the
               right of the other parent to communicate directly with school
               personnel concerning a child. The noncustodial parent shall be listed
               as an emergency contact unless there are special circumstances
               concerning child endangerment.

       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 12 of 15
               2. School Activities. Each parent shall promptly notify the other
               parent of all information about school activities, which is not
               accessible to the other parent. A parent shall not interfere with the
               right of the other parent to communicate directly with school
               personnel concerning a child's school activities. The parent exercising
               parenting time shall be responsible to transport the child to school
               related activities.
       Id. The commentary to this section requires that “[e]ach parent with knowledge

       of the child’s event should promptly inform the other parent of the date, time,

       place, and event.”

[18]   Although the Guidelines require each parent to establish his or her own

       relationship with the child’s school and obtain school information

       independently, Father fails to acknowledge that he did not timely inform

       Mother of the schools in which he had enrolled the Children. Mother testified

       that she was not informed of where X.R. was going to school until after school

       had already started. She testified further that Father had simply told her that

       L.R. was going to preschool, but he did not tell her where. It is unclear to us

       how Mother could be expected to establish a relationship with the schools and

       obtain information on her own when Father did not share even this basic

       information.

[19]   Moreover, once Mother learned where X.R. went to school, she emailed his

       kindergarten teacher and arranged and attended a conference. At the

       conference, Mother learned that the school was under the impression that

       Mother was not involved with the Children. Thereafter, she received only

       general information from the school, and she has missed all school functions


       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 13 of 15
       because she was not informed about them either by Father or the school.

       According to Mother, the school eventually stopped communicating with her

       altogether. It is reasonable to infer that the school’s refusal to communicate

       with Mother was attributable to the efforts of Father and his girlfriend to create

       the impression that Mother had no custody or visitation rights and was at best

       an absent parent. The Guidelines provide that that parents shall not interfere

       with each other’s rights to communicate directly with the school. In light of all

       these facts, the trial court’s finding that Father has not satisfied the

       requirements of the Guidelines with respect to the communication of

       educational information was not clearly erroneous.

[20]   With respect to health information, the Guidelines provide that “[i]f a child is

       undergoing evaluation or treatment, the custodial parent shall communicate

       that fact to the non-custodial parent.” Ind. Parenting Time G., Section

       1(D)(4)(a). The commentary to this subsection defines “evaluation or

       treatment” to include “medical, dental, educational, and mental health

       services.” Father plainly violated this requirement. The evidence presented at

       the hearings establishes that Father regularly sent X.R. to a therapist for months

       without informing Mother.3 Thus, the trial court’s conclusion that Father had

       not satisfied the Guidelines’ requirements concerning the communication of

       health information was not clearly erroneous.




       3
         In its order transferring custody to Mother, the trial court ordered that X.R. was no longer to be seen by this
       therapist, “[e]ffective immediately.” Appellant’s Appendix at 17.

       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015                Page 14 of 15
[21]   Father next argues that the trial court abused its discretion by considering only

       one of the best-interests factors set forth in I.C. § 31-17-2-8, i.e., the interaction

       and interrelationship of the Children with Mother. Father ignores, however,

       that the trial court set forth all of the statutory factors and specifically noted that

       it had considered them. That the trial court found one of the factors to tip the

       scales in the best-interests analysis does not render its ultimate finding an abuse

       of discretion.

[22]   Father’s remaining arguments with respect to the best interests of the Children

       are nothing more than requests to reweigh the evidence and substitute our

       judgment for that of the trial court, which we will not do on appeal. As set

       forth above, the trial court’s finding that Father and his girlfriend have harmed

       the Children’s relationship with Mother and attempted to replace her in the

       maternal role is supported by the evidence. These findings support the trial

       court’s ultimate findings that there has been a substantial change in

       circumstances and that modification was in the best interests of the Children.

       Accordingly, we cannot conclude that the trial court abused its discretion in

       modifying custody.

[23]   Judgment affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015   Page 15 of 15
