Pursuant to Ind.Appellate Rule 65(D),
this 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.



ATTORNEY FOR APPELLANT:                                       ATTORNEY FOR APPELLEE:

ROBERT H. BELLINGER, II                                       ROBERT R. HUFF
Fort Wayne, Indiana                                           Jones Huff & Jones
                                                              Plymouth, Indiana


                                                                                   May 09 2013, 9:11 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE: THE PATERNITY OF M.R.;                          )
                                                       )
A.K.,                                                  )
                                                       )
        Appellant-Petitioner,                          )
                                                       )
               vs.                                     )     No. 50A03-1211-JP-457
                                                       )
J.R.,                                                  )
                                                       )
        Appellee-Respondent.                           )


                     APPEAL FROM THE MARSHALL CIRCUIT COURT
                          The Honorable Curtis D. Palmer, Judge
                              Cause No. 50C01-0604-JP-47


                                               May 9, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                     Case Summary

       A.K. (“Mother”) appeals the trial court’s custody modification order granting J.R.

(“Father”) the physical custody of M.R. Mother presents the sole issue of whether sufficient

evidence supports the modification. We affirm.

                             Facts and Procedural History

       M.R. was born in 2004. Mother and Father were living together, but soon separated.

Father’s paternity of M.R. was established on June 9, 2006. At that time, Father and Mother

agreed to share joint legal custody of M.R., with Mother having primary physical custody.

       Father married, joined the military, and fathered another child. Eventually, he was

assigned to the Fort Bragg Army Base in North Carolina. Mother remained in Indiana.

       In 2012, police officers raided the residence occupied by Mother, Mother’s boyfriend,

and M.R. The officers uncovered a marijuana growing operation and fifty-seven plants in the

basement. They also discovered a small amount of dried marijuana; a marijuana smoking

device and a “roach” were found in a dresser and closet storing women’s clothing. (Tr. 87.)

Although Mother’s boyfriend was charged with a criminal offense, and placed on house

arrest, Mother was not criminally charged.

       On February 20, 2012, Father petitioned to modify physical custody of M.R. The trial

court conducted a hearing on September 26, 2012. On October 16, 2012, the trial court

issued an order granting Father’s petition for custody modification. Mother now appeals.

                                Discussion and Decision

       Mother’s sole argument on appeal is that there was insufficient evidence to support


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the trial court’s decision to award custody of M.R. to Father. Mother disavows knowledge of

the marijuana-growing operation and emphasizes the evidence that M.R. has been well-

adjusted and happy in her home.

       Indiana Code section 31-14-13-6 provides that, in custody matters following

determination of paternity, the court may not modify a child custody order unless (1)

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 31-14-13-2.

These factors include (1) the age and sex of the child; (2) the wishes of the child’s parents;

(3) the wishes of the child; (4) the interaction and interrelationship of the child with his

parents, siblings, and any other person who may significantly affect the child’s best interests;

(5) the child’s adjustment to home, school, and community; (6) the mental and physical

health of all individuals involved; (7) evidence of a pattern of domestic or family violent; and

(8) evidence that the child has been cared for by a de facto custodian. Mother does not

dispute that there has been a substantial change in one or more of the statutory factors in the

six years since the prior custody order. Thus, we address whether the evidence establishes

that giving Father physical custody of M.R. was in M.R.’s best interest.

       Judgments in custody matters will typically turn on essentially factual determinations.

Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). We do not reweigh evidence or

consider witness credibility, and will set aside a judgment only when it is clearly erroneous.

Id. “We will not substitute our own judgment if any evidence or legitimate inferences

support the trial court’s judgment.” Id. at 1257-58. This doctrine is reinforced by the


                                                3
concern for finality in custody matters. Id. at 1258.

        The trial court articulated several factual determinations underlying the custody

modification decision. The trial court found that M.R., a second grader, had already attended

four schools. He had excelled academically but displayed behavioral problems at school. By

age eight, he had twice been caught shoplifting at Wal-Mart. M.R. was living in a residence

where a marijuana-growing operation had been conducted for at least one year. The trial

court also summarized evidence of an incident taking place during Father’s parenting time:

        During [M.R.]’s extended summer visitation with his father in 2011 he asked
        to draw a picture for his mother. When given paper and pencil he drew a
        picture of a person standing next to a table with numerous items on the table
        and another person hanging above the table peering down at the scene. The
        word “drugs” was at the left side of the picture with lines drawn through it.
        (He had asked his stepmother how to spell “drugs”). When asked to describe
        what was in the picture he said he was the person at the top peering down at
        his mother. He described the items on the table as a knife, a gun, a wine glass,
        and something containing water with smoke coming out of it that you use to
        smoke drugs. He told his stepmother that he wanted to send the picture to his
        mother so she would stop using drugs.

(App. 9.)

        The trial court’s factual findings favoring the judgment with regard to Father and

Father’s home are as follows. Father has made the military his career, and has begun taking

college courses to obtain a business degree. He has been married since 2008. Neither Father

nor his wife use or permit alcohol, drugs, or cigarettes in their home. M.R. gets along well

with his stepmother and has been well-adjusted to Father’s home during summer parenting

time.




                                               4
       These factual findings are supported by the evidence in the record. Accordingly, there

is sufficient evidence to support the trial court’s determination that custody modification is in

M.R.’s best interests. We will not substitute our judgment for that of the trial court.

       Affirmed.

NAJAM, J., and BARNES, J., concur.




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