MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  May 30 2017, 10:41 am
court except for the purpose of establishing
the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrea L. Ciobanu                                        Katherine A. Harmon
Ciobanu Law, P.C.                                        Jared S. Sunday
Indianapolis, Indiana                                    Mallor Grodner, LLP
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyle Andrews,                                            May 30, 2017
Appellant-Petiitoner,                                    Court of Appeals Case No.
                                                         27A02-1610-JP-2311
        v.                                               Appeal from the Grant Circuit
                                                         Court
Gilliam Moorman,                                         The Honorable Mark E. Spitzer.
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         27C01-1208-JP-431



Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017                 Page 1 of 26
                                                 Case Summary
[1]   Kyle Andrews (“Father”) appeals the trial court’s modification of custody of his

      child, T.A., in favor of Gillian Moorman (“Mother”). We affirm.


                                                         Issues
[2]   The issues before us are:


               I.       whether the trial judge erroneously failed to recuse himself
                        due to a possible appearance of impropriety;


               II.      whether the modification of custody is supported by
                        sufficient evidence; and


               III.     whether the trial court erred in calculating Father’s child
                        support obligation.


                                                         Facts
[3]   T.A. was born in July 2011. The parties apparently lived together but had an

      acrimonious split sometime after T.A. was born. On November 1, 2013, as part

      of a paternity action filed by Father, the trial court approved the parties’

      agreement to have joint legal and physical custody of T.A. 1 The parties’

      relationship was such that they both occasionally cursed and called each other

      names in front of T.A.; Mother sometimes called Father an “a**hole,” and




      1
        The precise details of this agreement are not in the record before us, because any records in the case prior to
      July 1, 2014, have been sealed and are not included in the chronological case summary and are not located in
      the Odyssey case management system. See Ind. Admin. Rule 9(G)(2)(k).

      Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017                 Page 2 of 26
      Father sometimes called Mother a “piece of s*** and horrible mother.” Tr. pp.

      433, 457.


[4]   Both parties also have had varying degrees of mental health issues related to

      stress and anxiety. Father has not been working steadily and has been receiving

      Social Security disability payments for over a decade related to a panic attack in

      2002; he claims not to have suffered one since. He received counseling for

      several years and is on anti-anxiety medication. Much of Father’s counseling

      focused on stress related to co-parenting with Mother. Father often brought

      T.A. to these appointments, without Mother’s approval, although the counselor

      did not believe it was inappropriate for Father to do so.


[5]   Mother also has had panic attacks in the past. She has not undergone

      counseling for them but did begin taking an anti-anxiety medication in August

      2016 as needed. Mother has consistently worked at the pediatric dental practice

      of her step-father’s mother, Dr. Alice Butterworth, for twelve years. She is

      currently a dental assistant whom Dr. Butterworth praised for her ability to get

      along with children. Mother also had some physical health issues beginning in

      approximately December 2015 and culminating with a surgery in August 2016

      that appears to have corrected the issues. These issues interfered occasionally

      with Mother’s parenting during this time frame.


[6]   One of the primary areas of dispute between the parties has been T.A.’s

      education. Generally, Mother believes T.A. needs more of it in a formal setting

      while Father does not. In January 2014, a dispute between the parties with


      Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 3 of 26
      respect to whether T.A. should attend preschool led to a court order requiring

      T.A. to attend preschool at Westminster Presbyterian Preschool

      (“Westminster”) in Marion two half-days per week, per Mother’s request.

      Father failed to take T.A. to Westminster on the first day he had to do so,

      which led to a contempt filing and hearing. Father apparently has consistently

      taken T.A. to preschool thereafter.


[7]   Mother believed T.A. needed to be increasing the amount of time she was in

      preschool, but Father refused to consent to anything more than two half-days

      per week. At the end of the school year in spring 2016, T.A.’s preschool

      teacher assessed her academically, as well as socially and emotionally, and

      recommended that T.A. was not ready for kindergarten, although she was near

      the cut-off age to begin attending. T.A. was the only student who attended

      Westminster for only two half-days per week; all of her classmates attended five

      days per week, either half or full days. The teacher believed T.A. would have

      benefitted from more preschool attendance. She also noted that Mother would

      discuss T.A.’s progress with her when seeing Mother at pick-ups or drop-offs,

      while Father never did so. Additionally, T.A.’s demeanor and class

      participation was stable on days that Mother was expected to pick her up from

      school, but was highly unstable on days that Father was expected to pick her

      up. After the teacher’s recommendation that T.A. was not ready for

      kindergarten in fall 2016, the parties agreed not to enroll her in kindergarten.

      Father wanted to move T.A. into a different preschool and to continue her

      enrollment of two half-days per week while Mother wanted to continue her


      Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 4 of 26
       enrollment at Westminster and increase her amount of attendance. There was

       evidence Father sometimes did not respond to Mother’s texts wanting to

       discuss T.A.’s education. Also, Father refused Mother’s suggestion that T.A.

       be enrolled in extracurricular dance classes.


[8]    Custody exchanges from Father to Mother often caused T.A. to cry and

       become highly emotional. Father and T.A. would repeatedly tell each other

       that they loved one another and would miss each other. Exchanges from

       Mother to Father were not accompanied by similar outbursts or comments.


[9]    Mother has another child, P.T., who is about two years younger than T.A.

       T.A. and P.T. have a close older sister-younger brother relationship, and both

       attend Westminster. P.T.’s father, Zachary Thieken, is on good terms with

       Mother, and they communicate effectively regarding P.T.’s care and education,

       although they no longer have a romantic relationship. T.A. also is close to

       Thieken’s parents and considers them her grandparents as well; Thieken

       likewise is close to T.A.


[10]   On April 24, 2015, Father filed a petition to modify custody, requesting that he

       be granted sole legal and primary physical custody of T.A. The trial court

       appointed a guardian ad litem (“GAL”) to evaluate the custody situation, at

       Father’s request. The GAL spoke with Mother, Father, T.A., Thieken,

       Mother’s father, Father’s mother, Father’s counselor, and Father’s psychologist.

       On December 7, 2015, the GAL filed her report with the trial court. The report

       ultimately concluded, “I think Mr. Andrews has a good support system and has


       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 5 of 26
       taken the proper steps to care for his own mental health issues and is in a better

       position to provide for the care and custody of [T.A.]. Therefore I recommend

       father Kyle Andrews be awarded sole legal and physical custody of [T.A.].”

       Ex. 5 p. 9. The GAL did not file any supplements to this report.


[11]   The trial court held a two-day hearing on August 29-30, 2016. Father called as

       witnesses his counselor, mother, stepfather, Mother’s brother Thomas, and

       himself; Mother called Dr. Butterworth, Thieken, T.A.’s preschool teacher, her

       mother and father, and herself. By all accounts, T.A. is a sweet, intelligent,

       well-mannered, and well-adjusted child. The only area of concern appears to be

       that T.A. is behind other children her age with respect to academics, as well as

       socially and emotionally. There also was ample evidence that both parents love

       and care for T.A. and have appropriate homes for her in Marion, and both

       Mother and Father have extended family with whom T.A. enjoys spending

       time. There was evidence presented of the parties having different parenting

       styles, with Mother’s being more structured and Father’s less so. As may be

       expected, Father’s witnesses believed he was a great parent, and Mother’s

       witnesses believed she was a great parent. Father and some of his witnesses

       attempted to portray T.A. as being frightened of Mother, which was refuted by

       Mother’s witnesses. Mother’s father expressed concern that Father’s approach

       to co-parenting was his “way or no way.” Tr. p. 359.


[12]   Caught in the middle of this situation was Mother’s brother Thomas. He has

       attempted to remain on friendly terms with Father and had recently attended a

       birthday party for T.A. hosted by Father’s family. At one time, Thomas

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 6 of 26
       expressed concern to Father over a man Mother apparently was dating who had

       an extensive criminal history. Mother testified that she did see this man for a

       few months in early 2015 and that he had some interaction with T.A., but that

       she ceased all communication with him after learning of his criminal history.

       Thomas also confirmed that he had sent some texts to Father relating, for

       example, that T.A. appeared happy with Father or that she was afraid of

       Mother. However, Thomas testified that some of his texts had been

       misconstrued, particularly during the time of Mother’s physical illness, or that

       Father had misled him about certain matters. In the end, Thomas stated that he

       had no concerns about either Father or Mother as a parent and that he has

       observed much more of Mother’s parenting than Father’s.


[13]   The GAL testified that she had not changed her opinion regarding T.A.’s

       custody since her initial report. T.A.’s teacher testified that she had attempted

       to call the GAL more than once to speak with her about the case but the GAL

       failed to return her calls. Mother also testified that the GAL never spoke with

       her mother or step-father despite her request that she do so, nor did the GAL

       ever observe Mother and T.A. together. Mother also testified that she would

       like to be awarded sole legal and primary physical custody of T.A. due largely

       to the communication issues between her and Father.


[14]   Approximately halfway through the second day’s hearing, the trial court

       informed the parties:

               COURT: So unfortunately this happens sometimes, and so I
               realized um, at the end of the day yesterday that I represented, I

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 7 of 26
        didn’t make the connection, I represented Butterworth Industries
        at some point in the past when I was in private practice…


        [Father’s attorney]: Okay.


        COURT: . . . as a business lawyer.


        [Mother’s attorney]: Okay.


        COURT: So um, I’ve been on the bench for close to ten years at
        this point. It was, and I hadn’t done any work for them for a
        significant time before I had done that, but I realized, I was
        walking out, and Frank [Mother’s step-father] and Suzan
        [Mother’s mother] said hi to me.


        [Father’s attorney]: Okay.


        [Mother’s attorney]: Sure.


        COURT: I think she would’ve been a very young kid when I first
        met them, so I don’t know that I’ve ever met any of their children
        or anything. Um, I saw Suzan in March a couple of months ago
        and said hi to her, and that’s probably the first time that I had
        seen either of them in probably fifteen years maybe, um, but I
        wanted to disclose that.


        [Mother’s attorney]: Sure.


        [Father’s attorney]: Okay.


        COURT: I don’t know that it’s going to make any type of a um,
        impact on any decision that I would make. Um, from my
        perspective this is a choice between two good parents I think is

Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 8 of 26
               what, the way I would characterize it, and that can’t get along
               very well together, so um, you know I’d prefer not to have to
               make the choice at all, and that, you know I want to bring them
               in and say get along. You know it’s what I want to do, but so,
               but I wanted to disclose that. I know when you get halfway into
               a custody hearing and like oh great you know, but I felt like you
               know, when those types of things come up then I do disclose
               those, and let you know, and then you can take any action or
               none if you wish to, but I wanted to at least um, do that, and I’d
               be happy to answer any questions that you might have sort of
               about the extent of ...


               [Father’s attorney]: Judge as long as your [sic] confident that
               your representation of that business fifteen plus years ago wasn’t
               going to uh, one way sway you or the other, then I’m perfectly
               fine.


               COURT: Alright yeah.


               [Father’s attorney]: I’m absolutely fine with that.


               COURT: Yeah. Yeah. I don’t believe it would.


               [Father’s attorney]: Okay.


       Tr. pp. 346-48.


[15]   On September 28, 2016, the trial court entered an order granting Mother sole

       legal and primary physical custody of T.A., with Father having parenting time

       according to the Parenting Time Guidelines. The trial court noted the

       unfortunate “personal animosity” between the parties but that “both parents are



       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 9 of 26
       generally good parents, love their daughter and have her best interest at heart . .

       . .” Appellant’s App. Vol. II p. 36. The trial court further stated:


                  In considering the evidence, the Court is mindful that “[e]ven
                  two parents who are exceptional on an individual basis when it
                  comes to raising their children should not be granted, or allowed
                  to maintain, joint legal custody over the children if it has been
                  demonstrated . . . that those parents cannot work and
                  communicate together to raise the children.” Carmichael v. Siegel,
                  754 N.E.2d 619, 636 (Ind. Ct. App. 2001). Unfortunately, “a
                  joint custody order may simply provide a framework for the
                  parents to continue the conflict which brought them to divorce in
                  the first place. The conflict would just be focused solely on the
                  children.” Barteau and Hopkins, Joint Custody in Indiana, 27 Res
                  Gestae 320, 324 (1984). In this case, to continue the joint
                  custody situation with regard to [T.A.] 2 would constitute “an
                  intolerable situation upon two persons who have made child
                  rearing a battleground.” Aylward v. Aylward, 592 N.E.2d 1247,
                  1252 (Ind. Ct. App. 1992). Thus, under the circumstances, after
                  carefully weighing all of the evidence and assessing the credibility
                  of the witnesses, the Court finds that a sole custody order with
                  Mother as the custodial parent is in [T.A.]’s best interests.


       Id. at 37.


[16]   The trial court also recalculated child support but found Father personally

       owned none because the amount of Social Security payments he received

       exceeded his support obligation and the excess was a gratuity. It noted that

       Father currently is the representative payee for T.A.’s Social Security disability




       2
           The trial court here mistakenly referred to T.A. by the middle name of her half-brother P.T.


       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017                Page 10 of 26
       payments that are derivative of Father’s own benefits and ordered, “[t]he parties

       shall take such action necessary to change the representative payee for [T.A.]’s

       benefits from Father to Mother.” Id. at 38. On the child support worksheet the

       trial court granted Father parenting time credit for 96-100 overnights.


[17]   On October 7, 2016, Father filed a notice of appeal. On that same date, Father

       filed with the trial court a “Motion to Enforce Mid-Week Overnight Parenting

       Time,” which also sought to hold Mother in contempt for not allowing such

       parenting time, as well as a motion for a partial stay of the trial court’s order

       pending appeal. Appellee’s App. Vol. II p. 2.3 On October 19, 2016, the

       completion of the clerk’s record for this case was noted in the trial court’s

       chronological case summary. On November 1, 2016, after holding a hearing on

       the matter, the trial court denied all of Father’s motions. The trial court noted

       in part that it lacked jurisdiction to alter its September 28, 2016 order because

       the clerk’s record had already been completed for this appeal, but that it was not

       inclined to alter its order in any case. Father did not renew his motion to stay

       before this court.




       3
        Father has filed a motion to strike Mother’s appendix, which contains the post-trial motions and orders.
       We have denied this motion by separate order. Although not significantly impacting our analysis of the case,
       we believe we may properly take judicial notice of these motions and orders as court records under Indiana
       Evidence Rule 201(a)(2)(C) and 201(b)(5).

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017            Page 11 of 26
                                                   Analysis
                                                   I. Recusal

[18]   The first issue we address is whether the trial judge erred in failing to sua sponte

       recuse himself after realizing he had previously performed legal work,

       apparently for a business owned by Mother’s mother and step-father, over a

       decade earlier while in private practice. Indiana Code of Judicial Conduct

       2.11(A) provides, “A judge shall disqualify himself or herself in any proceeding

       in which the judge’s impartiality might reasonably be questioned . . . .”

       Comment 5 to this rule states, “A judge should disclose on the record

       information that the judge believes the parties or their lawyers might reasonably

       consider relevant to a possible motion for disqualification, even if the judge

       believes there is no basis for disqualification.” That is precisely what the judge

       here did, and Father’s attorney expressly said she was “absolutely fine” with the

       judge continuing to preside over this case. Tr. p. 348.


[19]   “A party may not lie in wait and only raise the recusal issue after receiving an

       adverse decision.” Carr v. State, 799 N.E.2d 1096, 1098 (Ind. Ct. App. 2003).

       “Waiver notwithstanding, the law presumes that a judge is unbiased in the

       matters that come before him.” Id. A judge’s prior representation of a party in

       an unrelated case does not mandate the reversal of a judgment, absent a

       showing of actual prejudice. See id. Father fails to direct us to any evidence of

       prejudice based on the judge’s representation of a business owned by Mother’s

       step-father and mother over a decade prior to the hearing in this case.

       Moreover, although Father concedes that he did not request the judge’s recusal,

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 12 of 26
       he suggests that it was unfair to place him in the situation of asking the judge to

       recuse himself halfway through the second day of hearings in this matter.

       However, it clearly would have been much preferable to do so then and not

       now, on appeal and months after the hearing and the order modifying custody.

       There was no error in the judge declining to sua sponte disqualify himself from

       consideration of this case.


                                          II. Modification of Custody

[20]   We now address the substance of the trial court’s decision to modify legal and

       physical custody of T.A. in favor of Mother.4 The trial court here issued some

       limited, sua sponte factual findings and legal conclusions as part of its order

       modifying custody. “In such a case, the specific findings control only with

       respect to issues they cover, and a general judgment standard applies to issues

       outside the findings.” Montgomery v. Montgomery, 59 N.E.3d 343, 349 (Ind. Ct.

       App. 2016), trans. denied. We will set aside the trial court’s findings or judgment

       only if they are clearly erroneous. Id. “A finding is clearly erroneous only if

       there are no facts or inferences drawn therefrom to support it.” Id.

       Additionally, “[w]e may affirm a general judgment with sua sponte findings

       upon any legal theory supported by the evidence introduced at trial.” Stone v.

       Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013). Sua sponte findings control as

       to the issues upon which the court has found, but they do not otherwise affect




       4
        Father suggests the trial court’s order is ambiguous. We believe it clearly awarded Mother sole legal
       custody and primary physical custody of T.A.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017             Page 13 of 26
       our general judgment standard of review, “and we may look both to other

       findings and beyond the findings to the evidence of record to determine if the

       result is against the facts and circumstances before the court.” Id.


[21]   We grant “‘latitude and deference to our trial judges in family law matters.’”

       Steele–Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of

       Richardson, 622 N.E.2d 178 (Ind. 1993)). “Appellate courts ‘are in a poor

       position to look at a cold transcript of the record, and conclude that the trial

       judge, who saw the witnesses, observed their demeanor, and scrutinized their

       testimony as it came from the witness stand, did not properly understand the

       significance of the evidence.’” Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307

       (Ind. 2002)). “In order to reverse a trial court’s ruling, it is not enough that the

       evidence might have supported a different conclusion.” Montgomery, 59 N.E.3d

       at 350. Rather, the evidence must positively require the conclusion contended

       for by appellant before we may reverse. Id. We may not reweigh the evidence

       or reassess witness credibility, and must view the evidence in a light most

       favorable to the judgment. Id. Although we must be highly deferential to trial

       courts in custody cases, that deference is not absolute and reversal is possible.

       Id.


[22]   Pursuant to Indiana Code Section 31-14-3-6, a trial court in a paternity

       proceeding may not modify a physical child custody order unless a

       noncustodial parent shows both that modification is in the best interests of the

       child, and there has been a substantial change in one or more of the factors

       listed under Indiana Code Section 31-14-13-2. Those factors are:

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 14 of 26
               (1) The age and sex of the child.


               (2) The wishes of the child’s 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 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 home, school, and
               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 2.5(b) of this chapter.


[23]   “A parent seeking modification of custody bears the burden of proving that the

       existing custody order should be altered.” Montgomery, 59 N.E.3d at 350.

       “Indeed, this ‘more stringent standard’ is required to support a change in

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 15 of 26
       custody, as opposed to an initial custody determination where there is no

       presumption for either parent because ‘permanence and stability are considered

       best for the welfare and happiness of the child.’” Steele-Giri, 51 N.E.3d at 124

       (quoting Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)).


[24]   With respect to modification of legal custody, a trial court should specifically

       consider whether there has also been a change in one of the statutory factors

       governing awards of joint legal custody. Julie C. v. Andrew C., 924 N.E.2d 1249,

       1259-60 (Ind. Ct. App. 2010). In a paternity case, those factors are:

               (1) the fitness and suitability of each of the persons awarded joint
               legal custody;


               (2) whether the persons awarded joint legal custody are willing
               and able to communicate and cooperate in advancing the child’s
               welfare;


               (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) whether the child has established a close and beneficial
               relationship with both of the persons awarded joint legal custody;


               (5) whether the persons awarded joint legal custody:


                        (A) live in close proximity to each other; and


                        (B) plan to continue to do so;




       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 16 of 26
               (6) the nature of the physical and emotional environment in the
               home of each of the persons awarded joint legal custody; and


               (7) whether there is a pattern of domestic or family violence.


       I.C. § 31-14-13-2.3(c).


[25]   Father argues in part that we must reverse and remand because the trial court

       failed to enter specific findings indicating that it had considered the statutory

       factors for a modification of custody or that its order lacked sufficient indication

       that it had adequately considered those factors, citing primarily Green v. Green,

       843 N.E.2d 23 (Ind. Ct. App. 2006). In that case, this court reversed and

       remanded a modification of custody because the trial court did not enter any

       findings demonstrating it had considered the relevant statutory factors for a

       modification of custody. However, we believe our supreme court subsequently

       has indicated such findings are not necessary if no findings are requested. In

       Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008), the trial court failed to enter

       any findings when modifying custody, and none were requested. Our supreme

       court noted the general standard of review that a judgment will be affirmed “‘if

       sustainable upon any theory consistent with the evidence.’” Baxendale, 878

       N.E.2d at 1257 (quoting Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind.

       1997)). The court proceeded to affirm the custody modification based on the

       evidence in the record supporting it and made no mention of the trial court’s

       lack of findings as being problematic. Id. at 1257-58.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 17 of 26
[26]   Here, the trial court’s sua sponte partial explanation of its order modifying

       custody did not obligate it to enter complete findings on all of the statutory

       modification factors. Rather, our standard of review is that we may affirm the

       trial court based on any evidence in the record. See id.; Stone, 991 N.E.2d at

       998. The trial court’s failure to make more detailed findings, in the absence of a

       request for such findings, is not an indication that it did not carefully consider

       the evidence and correctly apply it to the law.


[27]   Similarly, Father contends the trial court’s reference in its order to this court’s

       decision in Aylward v. Aylward, 592 N.E.2d 1247 (Ind. Ct. App. 1992), is fatal.

       In that case, we reversed an award of joint legal custody because it imposed “an

       intolerable situation upon two persons who have made child rearing a

       battleground.” Aylward, 592 N.E.2d at 1252. Father asserts the trial court erred

       in relying on Aylward in a case that presented issues of both legal and physical

       custody. He notes that, in Van Wieren v. Van Wieren, 858 N.E.2d 216 (Ind. Ct.

       App. 2006), this court rejected a parent’s attempt to rely upon Aylward in

       addressing a joint physical custody issue. We said that, although modification

       of joint legal custody may be a “sensible step” to take if parents have made

       child-rearing a battleground, “[i]t does not necessarily follow . . . that the same

       result must be reached with respect to a split physical custody arrangement.”

       Van Wieren, 858 N.E.2d at 222. However, as with the trial court’s findings (or

       lack thereof) regarding custody, the trial court’s legal conclusions regarding

       custody did not have to be thorough and complete. Although it did not

       distinguish between legal and physical custody when citing Aylward, there was


       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 18 of 26
       nothing wrong with it having mentioned the case, and we will proceed to

       review whether there was sufficient evidence to support a modification of both

       physical and legal custody when applying the correct legal standard.


[28]   The next issue we address is whether there is sufficient evidence of a substantial

       change in circumstances of one of the statutory custody factors. Father

       contends that, by modifying custody, the trial court essentially punished him for

       his and Mother’s lack of cooperation in caring for T.A., or conversely that it

       rewarded Mother for her poor behavior. He cites Van Wieren, in which this

       court affirmed a trial court’s denial of the father’s motion to modify custody.

       The parties had an acrimonious relationship and a split physical custody

       arrangement, and this court stated, “[i]f the trial court had awarded sole

       physical custody to either party, the ‘winner’ would have been well rewarded

       for obstreperous, disrespectful, and distasteful behavior.” Van Wieren, 858

       N.E.2d at 222.


[29]   However, this statement in a case affirming a denial of modification does not

       require a trial court to deny a physical custody modification request in all cases

       where the parents have joint legal and physical custody and an acrimonious

       relationship. The facts and circumstances of each case are unique. In fact, one

       of the statutory physical custody factors that may change over time is “[t]he

       wishes of the child’s parents.” I.C. § 31-14-13-2(2). One of the legal custody

       factors is “whether the persons awarded joint legal custody are willing and able

       to communicate and cooperate in advancing the child’s welfare.” I.C. § 31-14-

       13-2.3(c)(2). Here, neither parents believed the joint legal and physical custody

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 19 of 26
       situation to which they had previously agreed was sustainable as it was causing

       too much stress to both of them and T.A. Father himself was the one who

       originally moved to modify custody, and he testified that having joint custody

       was “overwhelming challenging.” Tr. p. 180. “[J]oint custody is difficult when

       the parents are able to communicate effectively and almost always detrimental

       to the wellbeing of the child when they cannot. . . . There are times when a

       breakdown of communication between parents renders joint custody no longer

       in the best interests of the child.” In re Paternity of A.S., 948 N.E.2d 380, 387

       (Ind. Ct. App. 2011) (affirming modification of physical custody where both

       parents requested modification).


[30]   Furthermore, Father arguably is judicially estopped from now asserting that a

       modification of custody was unwarranted. “Under the doctrine of judicial

       estoppel, a party may not assert a position in a legal proceeding inconsistent

       with one previously asserted.” Hay v. Baumgartner, 903 N.E.2d 1044, 1049 (Ind.

       Ct. App. 2009), trans. denied. This doctrine prohibits a party from repudiating

       assertions in the party’s own pleadings. Plaza Group Properties, LLC v. Spencer

       County Plan Comm’n, 911 N.E.2d 1264, 1269 (Ind. Ct. App. 2009), trans. denied.

       Father clearly pled, presented evidence on, and argued that joint legal and

       physical custody between the parties was no longer feasible. It is inconsistent

       for him to now claim differently. Rather, Father’s real, viable complaint now is

       not so much that the trial court modified custody, but that it modified it in favor

       of Mother. We now proceed to analyze the evidence on that point.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 20 of 26
[31]   Father and Mother present vastly different characterizations of the evidence.

       Suffice it to say, there was ample evidence that Father and Mother do not get

       along, that each has had some mental health troubles, and that they are

       incapable of co-parenting effectively but are loving and caring parents to T.A.

       individually and have extended family who care for her too. As for which

       parent would be “better” for T.A. to have primary physical and sole legal

       custody of her, the trial court heard two days of testimony from eleven

       witnesses, nearly evenly divided between those supporting Father and those

       supporting Mother. The trial court had the unenviable Solomonic task, as is

       often this case in these situations, of making a decision about T.A.’s custody in

       light of conflicting evidence. It heard the witnesses firsthand, observed their

       demeanors, and decided the better fit for T.A. was with Mother. Under the

       facts and circumstances of this case, we cannot second-guess that decision.


[32]   We note the following evidence that could have tipped the scales in favor of

       Mother having primary physical and legal custody as being in T.A.’s best

       interests. First, there was evidence that Father’s approach to educating T.A.

       was vastly different and more lackadaisical from Mother’s and that Mother’s

       desire for more schooling for T.A. would be in her best interests. Second, T.A.

       has a closely-bonded relationship with her half-brother P.T., and she would

       benefit from spending more, not less, time with him by Mother having primary

       physical custody of T.A. Third, with respect to P.T., his father testified strongly

       in support of Mother and her parenting skills and explained that they get along

       well with respect to co-parenting. This would tend to support Mother and her


       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 21 of 26
       other witnesses’ testimony that co-parenting issues with respect to T.A. derive

       more from Father than Mother. Father attempts to direct us to evidence

       painting him as the better custodian for T.A., but that evidence largely was

       contradicted, such as of T.A. being frightened of Mother or of Mother

       knowingly having a romantic relationship with an habitual criminal. To

       consider Father’s evidence would require us to reweigh the evidence, which we

       cannot do.


[33]   We acknowledge the GAL recommended that Father be granted primary

       custody of T.A. Trial courts are not required to accept the opinions of experts

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

       App. 2000). The trial court heard from more persons than the GAL did

       regarding custody, with the added benefit of those persons being subjected to

       adversarial testing. It was entitled to draw its own conclusions regarding what

       would be in T.A.’s best interests, contrary to the GAL’s conclusion.


[34]   As noted, it is not impossible to reverse a trial court’s decision regarding child

       custody on appeal. Given our deferential standard of review, however, it is

       relatively rare. By way of comparison, we recently reversed a custody

       modification order in Montgomery. The trial court modified primary custody

       from the father to mother, who was living out of state, based largely on father’s

       alleged interference with mother’s parenting time. We reversed because there

       was uncontradicted evidence of the child’s positive living situation with father,

       a lack of evidence of mother’s current out-of-state living situation, and a lack of

       evidence that the father’s limited interference with the mother’s parenting time

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 22 of 26
       had substantially or continually impacted the child’s relationship with the

       mother or affected the child’s mental or physical health. Montgomery, 59

       N.E.3d at 353. Here, by contrast, the parties agreed that a change from joint

       custody was needed, there was ample evidence of Mother’s stable and positive

       living situation and ability to lovingly care for T.A., and the change of custody

       would not necessitate a change in T.A.’s locale or interaction with extended

       family and friends. The facts of this case do not present us with sufficient

       reason to second-guess the trial court’s decision to modify physical and legal

       custody in favor of Mother.


                                              III. Child Support

                                      A. Parenting Time Overnights

[35]   Father’s first argument regarding the trial court’s child support order is really an

       attack on its parenting time order. Specifically, Father contends the trial court

       should have given him a midweek overnight visit with T.A., which would

       increase the child support credit for overnights to which he would be entitled.

       Indiana Child Support Guideline 6 provides, “A credit should be awarded for

       the number of overnights each year that the child(ren) spend with the

       noncustodial parent.” The commentary to this Guideline states in part, “If the

       parents are using the Parenting Time Guidelines without extending the

       weeknight period into an overnight, the noncustodial parent will be exercising

       approximately 96-100 overnights.” The trial court here awarded Father

       parenting time in accordance with the standard Indiana Parenting Time

       Guidelines for a child three years and older: alternating weekends, one evening

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 23 of 26
       per week (not an overnight), and all scheduled holidays. Ind. Parenting Time

       Guideline (II)(D)(1). It also awarded Father a child support credit for 96-100

       overnights.


[36]   We review a trial court’s parenting time decision for an abuse of discretion.

       Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). “We will not substitute

       our own judgment if any evidence or legitimate inferences support the trial

       court’s judgment.” Baxendale, 878 N.E.2d at 1257–58. Additionally, “[t]here is

       a presumption that the Indiana Parenting Time Guidelines are applicable in all

       cases.” Parenting Time G. Scope of Application (C)(3). 5


[37]   Father never requested during the modification hearing that he be allowed

       midweek overnight parenting time with T.A., which would be a deviation from

       the standard and presumptively-adequate parenting time he was entitled to

       under the Parenting Time Guidelines. A party generally cannot present an

       argument or issue on appeal that was not presented to the trial court. Thomson

       Inc. v. Insurance Co. of North America, 11 N.E.3d 982, 1015-16 (Ind. Ct. App.

       2014). The first time Father mentioned the possibility of midweek overnight

       parenting time was in his post-trial motion to “enforce” it, which reflected a

       mistaken belief that he was entitled to such visitation without ever requesting it.

       Appellee’s App. Vol. II p. 2. The trial court correctly refrained from

       reconsidering its parenting time order, in light of this court having already



       5
        A trial court also must provide a written explanation if it decides to deviate downward from the Parenting
       Time Guidelines, but not if it awards more than the minimum recommended parenting time.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017            Page 24 of 26
       acquired jurisdiction under Indiana Appellate Rule 8 after the notice of

       completion of clerk’s record was noted in the chronological case summary. See

       Crider v. Crider, 15 N.E.3d 1042, 1064-65 (Ind. Ct. App. 2014). In sum, Father

       cannot establish that the trial court abused its discretion in not awarding him

       midweek overnight parenting time where he did not request it during the

       modification hearing.6


                                         B. Social Security Payments

[38]   The final issue Father raises is that the trial court erred in ordering the parties to

       “take such action necessary to change the representative payee for [T.A.’s

       derivative Social Security disability] benefits from Father to Mother.”

       Appellant’s App. Vol. II p. 38. He directs us to 42 U.S.C. § 407(a), which

       states:

                 The right of any person to any future payment under this
                 subchapter [regarding Social Security payments] shall not be
                 transferable or assignable, at law or in equity, and none of the
                 moneys paid or payable or rights existing under this subchapter
                 shall be subject to execution, levy, attachment, garnishment, or
                 other legal process, or to the operation of any bankruptcy or
                 insolvency law.


       He also notes that the Social Security Administration (“SSA”) has been tasked

       with designating representative payees for benefit payments under 42 U.S.C. §




       6
        Father, of course, was hoping to be awarded primary custody of T.A. himself, but a request for additional
       parenting time in the alternative, should the trial court award primary custody to Mother, could have been
       made at the modification hearing.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017            Page 25 of 26
       405(j) and 20 C.F.R. §§ 404.2001-404.2065. See also Brevard v. Brevard, 328

       S.E.2d 789, 792 (N.C. Ct. App. 1985) (holding that state courts lack the power

       to direct the SSA to pay a child’s benefits to anyone other than the designated

       representative payee).


[39]   Be that as it may, the trial court did not purport to order the SSA to do anything

       or to order any sort of legal process against T.A.’s derivative benefits. Rather,

       its order was directed solely to the parties and required them to take the

       necessary steps with the SSA t`o change the representative payee designation,

       with the ultimate decision of whether to make the change being left to the

       SSA’s discretion. So long as Father cooperated with Mother in seeking the

       change, they would have fulfilled the trial court order’s mandate. We see no

       impropriety in the trial court’s order regarding T.A.’s derivative Social Security

       benefits.


                                                 Conclusion
[40]   The trial judge did not err in failing to sua sponte recuse himself from

       consideration of this case. There is sufficient evidence to support the

       modification of custody in favor of Mother, and there is no error in the child

       support or parenting time orders. We affirm.


[41]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017   Page 26 of 26
