ATTORNEY FOR APPELLANT                               ATTORNEY FOR APPELLEE
Robert J. Palmer                                     Frederick B. Ettl
Mishawaka, Indiana                                   South Bend, Indiana




                                            In the
                         Indiana Supreme Court                                Nov 05 2013, 11:36 am




                                    No. 71S03-1305-DR-399

JASON WILSON,
                                                            Appellant (Respondent below),

                                                v.

KELLY (WILSON) MYERS,
                                                            Appellee (Petitioner below).


              Appeal from the St. Joseph Superior Court, No. 71D05-0411-DR-640
                           The Honorable Margot F. Reagan, Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 71A03-1204-DR-153



                                       November 5, 2013

David, Justice.


       When parents fight each other, it is often the children who suffer. When parents litigate
against each other, however, the laws and legal system have explicit mechanisms and
considerations aimed specifically at protecting the children caught in the middle.


       Here, those mechanisms and considerations were ignored and a father was summarily
ordered to give up custody of the two children who had been living in his care for over five
years. Under the facts and circumstances of this case, we find that this summary resolution,
without an evidentiary hearing where witnesses would be sworn and testimony heard, and
without the consent of the parties and their counsel, was an abuse of the trial court’s discretion,
and we therefore remand for the proper proceedings.




                                 Facts and Procedural History


       Jason Wilson and Kelly Myers divorced in 2006 and physical custody of their two
children, A.W. and B.W., was awarded to Wilson. In February 2011, Myers filed a motion to
modify actual physical custody with respect to A.W., requesting that A.W. be allowed to reside
with her. She later amended her motion to seek physical custody of both children. The matter
was referred to the Domestic Relations Counseling Bureau. The DRCB recommended that the
parties and children participate in family counseling.


       Myers subsequently filed a series of motions with the trial court, alleging that Wilson was
attempting to sabotage the counseling process. In response, the trial court requested permission
to communicate with the counselor directly; both Wilson and Myers agreed to this. The director
of the counseling service then wrote a letter to the court, expressing outrage after discovering
that Wilson had been secretly recording the counseling sessions. The trial court ordered Wilson
to turn over the tapes, which he did, and set Myers’s motion to modify custody for a hearing on
March 19, 2012.


       Present at the hearing were Wilson, Myers, their attorneys, and the family counselors. At
the beginning of the hearing, the trial judge announced her intent to rule on Myers’s motion to




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modify custody. Wilson requested an evidentiary hearing on custody, and also an additional in-
camera interview of the children.1


       The hearing then shifted to the topic of Wilson’s recording of counseling sessions. The
parties and counselors debated which parents were present at which sessions, and why Wilson
had problems paying for his sessions. Wilson argued that his problems with counseling were not
a sufficient basis to modify custody, and reiterated his request for another in-camera interview.


       Instead, the trial court abruptly concluded the hearing, saying “I feel like we’ve wasted a
year. And it shouldn’t go on any longer. I don’t want to have another in-camera. And I don’t
understand why we would need an evidentiary hearing. Because I want to grant the Amended
Motion to Modify Custody to give both the children to Ms. Myers.” (Tr. at 105.) The court then
requested Myers prepare and file an order consistent with that decision. No witnesses were
sworn during the hearing or evidence received.


       Myers filed her proposed order the next day. That same day, Wilson notified the trial
court that he did not believe the order was sufficient, but the order was entered as filed. Myers
was awarded custody of both A.W. and B.W., effective the next weekend, with Wilson receiving
parenting time as had previously been awarded to Myers.


       Wilson appealed, arguing that the trial court abused its discretion in modifying the prior
custody order without an evidentiary hearing and without issuing findings regarding the best




1
  Initial in-camera interviews were conducted by DRCB and reviewed by the trial court nearly a year
earlier—prior to the counseling sessions.



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interest of the children. (Appellant’s Br. at 1.) He also sought appellate attorney fees and
expenses. (Appellant’s Br. at 1.)


       The Court of Appeals affirmed in an unpublished memorandum decision. Wilson v.
Myers, 979 N.E.2d 1072 (Ind. Ct. App. 2012) (table). We granted transfer, thereby vacating the
Court of Appeals opinion, see Ind. Appellate Rule 58(A), and now remand.




           The Trial Court Abused Its Discretion in Modifying the Custody Order


       The Indiana Code prohibits a court from modifying a child custody order unless “(1) the
modification is in the best interests of the child; and (2) there is a substantial change in one (1) or
more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of
this chapter.” Ind. Code § 31-17-2-21(a) (2008). “In making its determination, the court shall
consider the factors listed under section 8 of this chapter.” Ind. Code § 31-17-2-21(b). Those
factors include: the child’s age and sex; the wishes of the parent(s); the child’s wishes; the
relationship the child has with his or her parent(s), sibling(s), and others; the child’s adjustment
to home, school, and community; the mental and physical health of all involved; any evidence of
domestic or family violence; and any evidence that the child has been cared for by a de facto
custodian. Ind. Code § 31-17-2-8(1)–(8) (2008). There is no presumption favoring either parent,
Ind. Code § 31-17-2-8, and the party seeking the modification bears the burden of demonstrating
that the existing arrangement is no longer in the best interests of the child and there has been a
substantial change in one or more of the enumerated statutory factors, Kirk v. Kirk, 770 N.E.2d
304, 307 (Ind. 2002).




                                                  4
        “We review custody modifications for abuse of discretion with a ‘preference for granting
latitude and deference to our trial judges in family law matters.’” K.I. ex rel. J.I. v. J.H., 903
N.E.2d 453, 457 (Ind. 2009) (quoting Kirk, 770 N.E.2d at 307).2 And for a combination of
reasons, we find such an abuse of discretion present in the way this modification was carried out
and ordered.


        The trial court’s order modifying a six-year-old custody agreement read as follows:


                Come now the parties in person and by counsel and hearing is had
                on Wife’s Motions to Modify Custody. The Court elicits
                information regarding counseling at Lincoln Therapeutic
                Partnership from Karen Davis, the parties’ counselor, and from
                Jeanine Curtis, Executive Director, and the Court elicits testimony
                from the Respondent-Husband, Jason Wilson.

                The Court, being duly advised in the premises, grants the Wife’s
                Motions to Modify Custody and awards custody of the two minor
                children, namely: [B.W.] and [A.W.], to the Petitioner-Wife, Kelly
                Myers. Such custody modification exchange shall be effective
                Saturday, March 24, 2012. The Respondent-Husband, Jason
                Wilson, shall enjoy the same parenting time previously exercised
                by the Petitioner-Wife and as indicated by the Indiana Parenting
                Time Guidelines to include alternate weekend visitation and one
                weeknight each week.

                The parties are ordered to exchange income information and to
                tender a proposed child support worksheet to the Court.




2
  Wilson appears to argue that the absence of specific findings related to the best interest of the children
and a substantial change in statutory factors related to child custody makes the order an abuse of
discretion per se. (Appellant’s Br. at 24–25.) We do not need to resolve today whether such explicit
findings are required pursuant to Trial Rule 52(A) in child custody modification cases; here we find the
collective process deficient regardless.



                                                     5
                The Petitioner-Wife, Kelly Myers, agrees to maintain the children
                at their present schools until the end of the current semester; albeit,
                that will require the children to travel from the home of the
                Petitioner-Wife in Niles, Michigan to their respective schools in
                Mishawaka, Indiana until the end of the term. At the end of the
                Mishawaka school semester, the children can be enrolled at
                schools in the Niles, Michigan community where their Mother, the
                Petitioner-Wife, resides.

(Appellant’s App. at 17–18.)3 No mention is made of whether this modification is in the best
interests of B.W. and A.W., nor is there any mention of a substantial change in any of the factors
enumerated in Indiana Code § 31-17-2-8. And whether such explicit findings are required or
not—and without reducing the importance of the statutory considerations to just talismanic
magic words in a trial court order—considering the proceedings leading up to the order, we
cannot even infer support for such findings.


        None of the witnesses at the March 19 hearing were sworn or cross-examined; none of
the documents introduced—if there were any—were admitted through any foundation or
examination of reliability. No courtroom formalities (and few civilities) seem to have been
observed at all. Parties, attorneys, counselors, and the judge talked freely, interrupted, and
questioned each other without any semblance of order or procedure. 4 The trial court made




3
  The parties continued to fight even with this order, debating the scope and duration of the academic
“semester” and “term” identified in the order.
4
  Myers says that “[t]he parties and all salient witnesses were present and available for examination and
cross-examination; and, both direct and cross-examination ensued.” (Appellee’s Br. at 8.) She also
claims that the hearing included a “thoroughgoing discussion of the evidence compiled over the course of
the past year, and more particularly, a thoroughgoing discussion of the information or evidence adduced
from Lincoln Therapeutic Partnership.” (Appellee’s Br. at 7.) To say this accurately describes the nature
and process of the March 19 hearing is a stretch; and to the extent an in-depth discussion of the issues
related to the counseling process occurred, those issues—Wilson’s ability to pay counseling fees,


                                                   6
reference to looking at “the whole picture” in making its decision, (Tr. at 105), but provided no
insight into what was contained in that picture before simply announcing that it planned to grant
Myers’s motion to modify custody. We know that the trial court contacted the family counselors
directly, but none of what was learned during those conversations is reflected in the record. And
nothing in the transcript of the hearing relates to any of the factors enumerated in Section 31-17-
2-8, so we cannot safely assume that they were considered.


       Myers argues that Wilson effectively waived any right to protest this process by signing
the release authorizing the court to directly contact the counselors, not insisting that the
witnesses be sworn, and not filing a motion requesting specific findings of fact and law.
(Appellee’s Br. at 8–10.) But we must be mindful that even if Wilson—and Myers—waived
their right to confrontation and formal cross-examination of witnesses, and consented to an
unorthodox and summary procedure, the interests of the two critical individuals in the case—
A.W. and B.W.—were not separately represented at the hearing.5 So even if the transcript did
not clearly reflect Wilson requesting an evidentiary hearing and a second in-camera interview—
which he did—we would be loathe to use that “waiver” as a cure-all to remediate a process
defective in protecting the two individuals most at-risk in this venture.


       In short, what we are now faced with on appeal is an order directing one parent to hand
over two children to another parent with no mention or hint that doing so is in accordance with
the Indiana Code. And the only support for this order is the transcript of what seems to be little




attendance at sessions, and tape-recording of sessions—seem irrelevant to the factors enumerated in Ind.
Code § 31-17-2-8.
5
  The children were not present at the March 19 hearing, nor was a Guardian Ad Litem present to
represent their interests—despite one apparently having been appointed after Myers filed her motion to
modify custody.



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more than an unorganized shouting match labeled as an “evidentiary hearing.” To issue such an
order was therefore an abuse of discretion.


        Tempers clearly ran hot for all involved in this case, as can easily happen in family law
cases with disputed custody concerns.6 And while summary proceedings—when properly agreed
to—can be beneficial in deciding matters of custody and parenting time to minimize the negative
impact on the children, such summary proceedings may be less appropriate where the parties are
vigorously contesting every facet of the process and appear incapable of approaching these
decisions in a civil or cooperative manner. In such cases, we encourage trial courts to utilize the
formal procedures embodied in the Indiana Trial Rules to maintain a level of control and
decorum that keeps the litigation process from turning into a mud-slinging argument and
preserves the rights of all involved.




                                              Conclusion


        We remand this case for a proper evidentiary hearing and inquiry into in-camera
interviews to address Myers’s motion for modification of custody. At the same time, however,
we are aware that A.W. and B.W. have already been pulled from the school and community they
were in when living with Wilson, and are now in school in Michigan and living with Myers.
Without condoning this change, or expressing any indication that we believe Myers’s motion




6
 At a later hearing, the trial judge acknowledged that one of the problems with this case was that it had
been long-running and a “mess,” there had been violations of her prior orders, and “perhaps I was angry”
when she concluded the March 19 hearing. (Tr. at 127.) And tempers continued to run hot at that later
hearing, with one attorney referring to the other’s statement as “an outrageous lie,” the other wanting to
know “why is it a lie when my client says something,” and the trial court ordering them to “Stop it, both
of you.” (Tr. at 120.) A new judge has since been appointed to hear this case. (Appellant’s App. at 15.)



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should (or should not) ultimately be granted, we order this status quo to continue in order to
minimize further disruption to A.W. and B.W., until further order of the trial court.7


        Therefore, while we vacate the trial court’s order, we cannot easily “reverse” what the
order has already done. Simply put, the current living arrangement was not properly established,
but at this point it is what it is and it is our obligation, in the best interests of the children, not to
exacerbate the problem or to encourage the practice followed here.


Dickson, C.J., Rucker, Massa, and Rush, J.J., concur.




7
 We also note that on remand it remains Myers’s burden to show that the original custody order should
be modified—Wilson does not have to win his children back from Myers as a result of the trial court’s
abuse of discretion here.



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