      MEMORANDUM DECISION
                                                                      Jun 29 2015, 8:58 am
      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.



      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Katherine A. Harmon                                       Brooke E. Bernhardt
      Jared S. Sunday                                           The Law Office of Melissa Winkler-
      Mallor Grodner LLP                                        York, LLC
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kari Poe,                                                June 29, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               49A02-1409-DR-636
              v.                                               Appeal from the Marion Superior
                                                               Court

      Robert Poe,                                              Lower Court Cause No.
                                                               49D03-1210-DR-39179
      Appellee-Respondent.
                                                               The Honorable Patrick L. McCarty,
                                                               Judge




      Pyle, Judge.


                                         Statement of the Case
[1]   Kari Poe (“Mother”) appeals the trial court’s grant of primary physical custody

      over her minor daughter (“H.P.”) to H.P.’s father, Robert Poe (“Father”). She

      argues that there is no evidence that the trial court considered the statutory


      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015    Page 1 of 13
      factors it was required to consider to determine H.P.’s best interests.

      Alternatively, she raises several arguments concerning the weight the trial court

      assigned to the evidence and statutory factors. We conclude that there is no

      evidence that the trial court failed to consider the statutory factors for

      determining H.P.’s best interests, and the trial court did not abuse its discretion

      in weighing the statutory factors when it awarded Father primary physical

      custody.


      We affirm.


                                                     Issue
              Whether the trial court abused its discretion when it awarded
              Father primary physical custody of H.P.

                                                     Facts
[2]   Mother and Father (collectively, “the parents”) married on March 26, 2005,

      and had one daughter together, H.P., who was born in May 2006. Mother filed

      a petition for the dissolution of her marriage to Father on October 9, 2012,

      when H.P. was six years old. In lieu of a preliminary hearing, the parents

      entered into an agreed preliminary entry on December 7, 2012, which provided

      that Mother would have physical custody of H.P. and that the parents would

      share legal custody. It also established that:


              The Father shall have parenting time beginning every Monday
              after school or 6:00 p.m., if school is not in session, through
              Wednesday at 6 P.M. and Thursdays at 6:00 P.M. through
              Friday at 6:00 P.M. The Mother shall have [H.P.] every Friday
              at 6:00 P.M. until Monday morning when minor child is taken to

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015   Page 2 of 13
              school. If school is not in session, the Mother shall have minor
              child until Father is off of work. The Mother shall also have
              every Wednesday at 6:00 P.M. overnight until Thursday at 6:00
              P.M. The Father shall drop off the minor child at the beginning
              of parenting time every Thursday and Monday, either at the
              school or the Father’s residence if school is not in session.


      (App. 11-12). However, the parents did not follow this agreed schedule.


[3]   In May 2013, Mother moved from Mooresville, Indiana, where Father lives, to

      Franklin, Indiana, to live with her significant other, Jason Gosman

      (“Gosman”). Mother and Gosman lived in a house in Franklin with Gosman’s

      daughter from a previous relationship, Mother’s child with Gosman, who was

      born in July 2013, and H.P. when Mother had custody. Although Mother

      moved to Franklin, H.P. continued to attend school in Mooresville. The

      parents arranged their custody schedule so that Mother would pick up H.P.

      from her school in Mooresville on Monday through Thursday afternoons, take

      care of her each night, then drop her off at Father’s house or school the next

      morning. Father would pick up H.P. from school on Friday nights, take care of

      her over the weekend, and then take her to school Monday mornings.


[4]   On August 15, 2013, Father filed a motion requesting a custody evaluation by

      the Domestic Relations Counseling Bureau (“DRCB”). The trial court granted

      the motion and referred the matter to the DRCB on September 17, 2013. The

      DRCB evaluator, Leo Flannelly (“Flannelly”), interviewed H.P., the parents,

      Gosman, and Father’s significant other, Ashleigh Lyburger (“Lyburger”). He

      found that H.P. had a good relationship with both of her parents and with both

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      Gosman and Lyburger. However, then seven-year-old H.P. told Flannelly that

      she “want[ed] [Lyburger] to watch [her]” and that she wanted to live with

      Father. (Respondent’s Ex. A). She said she was “tired” of the transportation

      between her parents’ residences and school and was “sick of going one place

      and then another.” (Respondent’s Ex. A). Mother later testified that she had to

      commute forty-five to fifty minutes each way with H.P. every morning and

      afternoon to take her to and from school. Notwithstanding H.P.’s wishes,

      Flannelly ultimately recommended in his DRCB report that the parents share

      joint custody and that Mother have primary physical custody.


[5]   Subsequently, on April 21, 2014, the trial court entered a decree for the

      dissolution of the parents’ marriage, which incorporated a partial settlement

      agreement the parents had agreed upon through mediation. The settlement

      agreement was partial because it did not resolve any of the issues regarding

      parenting of H.P. As a result, on June 17, 2014, the trial court held a hearing to

      establish custody.


[6]   At the hearing, the primary point of contention between the parents was where

      H.P. should attend school. Father desired H.P. to remain in Mooresville

      schools, where she had attended from kindergarten through second grade, but

      Mother desired H.P. to enroll in the Edinburgh school system, which was closer

      to where Mother lived. Father testified that the parents had agreed when they

      first separated that they would keep H.P. in Mooresville schools “no matter

      what.” (Tr. 67). He said that, in spite of this agreement, Mother had enrolled

      H.P. in Edinburgh schools for a week and a day at one point when she first

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015   Page 4 of 13
      moved to Franklin without discussing the matter with him. However, he

      acknowledged that when he objected to the arrangement, Mother had re-

      enrolled H.P. in the Mooresville school system.


[7]   Another subject at the hearing was the parents’ respective schedules. Mother

      testified that she believed it would be in H.P.’s best interests if she had physical

      custody because, among other reasons, her schedule was more open than

      Father’s. She said that she had just graduated from college the week prior and

      was staying at home full time. She had previously served in the military but

      had been medically discharged due to a shoulder injury. Father testified that

      his job schedule varied depending on the time of year and that, at some points

      of the year, he could not get home until 10:00 p.m. However, he said that he

      could likely get home by 7:00 or 8:00 p.m. for H.P.’s dinner and bedtime

      routines ninety percent of the time during the school year. He also said that he

      was willing to allow Mother to have custody of H.P. in the afternoons until he

      could get home. Father’s then-wife, Lyburger, testified that she worked until

      7:00 p.m. on Mondays, Tuesdays, and Thursdays and until 3:00 p.m. on

      Wednesdays.


[8]   Flannelly also testified at the hearing and discussed his evaluation of the parents

      and his DRCB report. He said that he had talked with Mother about her

      mental health during his evaluation and found that she had undergone

      treatment at St. Francis Behavioral Health for issues “related to [post-traumatic

      stress disorder (“PTSD”)] and other matters[,]” including anxiety. (Tr. 45).

      He said that he had received a diagnosis from St. Francis that Mother had

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015   Page 5 of 13
       borderline personality disorder, which he explained meant that Mother could be

       a “black-and-white thinker.” (Tr. 47).


[9]    With respect to the two custody alternatives, Flannelly said that H.P. had a

       positive relationship with both of her parents and with Gosman and Lyburger.

       He recounted that H.P. had told him of one incident when Mother and

       Gosman had gotten into an argument, and Gosman had thrown her books off

       the roof, but he said that he did not get the feeling from H.P. “in any way,

       shape or form” that she was afraid to live with Mother and Gosman. (Tr. 43).

       In addition, he did not detect that H.P. felt any indication or discomfort with

       Father and Lyburger.


[10]   At the conclusion of the hearing, the trial court took the matter under

       advisement and told the parents that its decision would be based on its opinion

       of H.P.’s best interests. The trial court acknowledged that both Mother and

       Father seemed to be reasonable people and “thoughtful parents who want the

       best for [their] daughter.” (Tr. 86). Subsequently, on August 21, 2014, the trial

       court entered an order finding it in H.P.’s best interests for the parents to have

       joint legal custody but for Father to have primary physical custody. The trial

       court ordered H.P. to remain in Mooresville schools and for Mother to have

       parenting time with H.P. in accordance with the Indiana Parenting Time

       Guidelines, plus any additional parenting time the parents could agree upon.

       Mother now appeals. Additional facts will be provided as necessary.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015   Page 6 of 13
                                                   Decision
[11]   On appeal, Mother argues that the trial court abused its discretion when it

       granted Father primary physical custody of H.P. Specifically, she asserts that

       there was no evidence that the trial court considered the statutory factors in

       determining H.P.’s best interests. She also argues that the trial court’s decision

       was an abuse of discretion because the trial court failed to attribute appropriate

       weight to particular statutory factors. We will address each of these arguments

       in turn.


[12]   First, we observe that in custody disputes “the trial court is often called upon to

       make Solomon-like decisions in complex and sensitive matters.” Speaker v.

       Speaker, 759 N.E.2d 1174, 1179 (Ind. Ct. App. 2001). “‘As the trial court is in a

       position to see the parties, observe their conduct and demeanor, and hear their

       testimony, its decision receives considerable deference in an appellate court.’”

       Id. (quoting Sebastian v. Sebastian, 524 N.E.2d 29, 32 (Ind. Ct. App. 1988)). On

       review we cannot reweigh the evidence, judge the credibility of the witnesses, or

       substitute our judgment for that of the trial court. Id. We will not reverse the

       trial court’s custody determination unless it is clearly against the logic and effect

       of the facts and circumstances before the court or the reasonable inferences

       drawn therefrom. Id.


[13]   In an initial custody determination, such as here, there is no presumption

       favoring either parent. Gonzalez v. Gonzalez, 893 N.E.2d 333, 335 (Ind. Ct. App.

       2008). The court assumes that the parties are equally entitled to custody but


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015   Page 7 of 13
       makes a decision based on which parent would better rear the child. Id. This

       decision must be based on the best interests of the child. I.C. § 31-17-2-8 (“The

       court shall determine custody and enter a custody order in accordance with the

       best interests of the child.”). INDIANA CODE § 31-17-2-8 delineates several

       statutory factors the trial court must consider in order to determine the child’s

       best interests. They are:

               (1) The age and sex of the child.
               (2) The wishes of the child’s parent or parents.
               (3) The wishes of the child, with more consideration given to the
               child’s wishes if the child is at least fourteen (14) years of age.
               (4) The interaction and interrelationship of the child with:
                      (A) the child’s parent or parents;
                      (B) the child’s sibling; and
                      (C) any other person who may significantly affect the
               child’s best interests.
               (5) The child’s adjustment to the child’s:
                      (A) home;
                      (B) school; and
                      (C) community.
               (6) The mental and physical health of all individuals involved.
               (7) Evidence of a pattern of domestic or family violence by either
               parent.
               (8) Evidence that the child has been cared for by a de facto
               custodian . . . .

       I.C. § 31-17-2-8. When evaluating these factors, a trial court must consider all

       evidence from the time of the child’s birth. Hughes v. Rogusta, 830 N.E.2d 898,

       902 (Ind. Ct. App. 2005).


[14]   Mother’s first argument on appeal is that there is no evidence that the trial court

       considered the statutory factors when it awarded primary physical custody to
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       Father. However, she recognizes that the trial court is not required to make

       specific findings, and she does not point us to any legal requirement that, in

       addition to considering the factors, the trial court must explicitly establish that it

       has done so. Instead, she contends that it is evident that the trial court did not

       consider the factors. Specifically, Mother asserts that the trial court did not

       consider the “wishes of the child’s parent or parents,” and, according to her, the

       trial court ignored her and Father’s wishes. I.C. § 31-17-2-8. As a basis for this

       argument, she claims that she requested primary custody and Father requested

       only equal custody, so the parents’ wishes “overlap[ped] as to a minimum of

       equal custody and parenting time of [H.P.],” and the trial court did not grant

       her the minimum of equal custody. (Mother’s Br. 9-10).


[15]   In response, Father argues that, even though he asked for joint physical custody

       of H.P. at the hearing, he indicated to Flannelly that he was seeking primary

       physical custody, and Flannelly included that information in the DRCB report

       that the trial court considered.1 Father also notes that he submitted to the trial

       court a child support worksheet on which he gave Mother parenting time credit

       for having custody of H.P. for 181-183 overnights per year. Father asserts that

       a custodial parent may not receive parenting time credit, so this worksheet

       demonstrated his desire to have primary physical custody of H.P. See Ind.

       Child Support Guideline 3(G)(4) (stating that “[t]he court should grant a credit




       1
         Also in the report, Flannelly mentioned that Father had said he “would accept joint custody, but
       indicated he would seek sole custody ‘if necessary.’” (Respondent’s Ex. A). It is apparent from the
       context of the excerpt that Father might have been discussing legal, not physical custody.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015         Page 9 of 13
       toward the total amount of calculated child support for either ‘duplicated’ or

       ‘transferred’ expenses incurred by the noncustodial parent.”).


[16]   We agree with Father that, even if he requested only equal physical custody, his

       statements to Flannelly, which the trial court considered, demonstrated that he

       desired primary physical custody of H.P.2 Regardless, even if both parents had

       sought equal custody, the trial court is not required to abide by the wishes of the

       parents. Keen v. Keen, 629 N.E.2d 938, 940 (Ind. Ct. App. 1994). The “wishes

       of the child’s parent[s]” is only one of several factors to be considered in

       determining the best interests of a child. See I.C. § 31-17-2-8. Therefore, the

       trial court’s award of physical custody to Father is not necessarily evidence, as

       Mother suggests, that the trial court failed to consider the statutory factors in

       determining H.P.’s best interests. Because Mother does not point to, and we do

       not find, any other evidence indicating that the trial court failed to consider the

       statutory factors, we conclude that it did not abuse its discretion on that basis.


[17]   Alternatively, Mother raises several arguments that essentially concern the

       weight the trial court should have assigned the statutory factors and the

       evidence. For instance, she argues that: (1) H.P.’s wishes should not have been

       determinative because H.P. was only seven years old when she said that she




       2
        We need not address Father’s parenting time argument because we agree that his desire to have full custody
       was apparent from the DRCB report, but we do note that under the Indiana Child Support Guidelines,
       “[p]arenting time is considered equally shared when it is 181 to 183 overnights per year.” Child Supp. G. 6
       cmt. Therefore, his allocation of parenting time credit to Mother for 181 to 183 overnights per year also
       would support a request of equal custody.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015           Page 10 of 13
       wished to remain in Mooresville schools, and H.P. could remain in Mooresville

       schools even if Mother were the primary physical custodian; (2) the trial court

       should not have considered Mother’s mental history because there was not

       much evidence concerning that history; and (3) Father’s work schedule was not

       in H.P.’s best interests because he will be unavailable to take care of her for

       periods of time after she gets home from school. We will not address these

       arguments in detail because we have previously held that while the trial court

       must consider each of these statutory factors in making a best interests

       determination, it is well within the trial court’s discretion to place greater

       weight on certain evidence and certain factors. Gilbert v. Gilbert, 7 N.E.3d 316,

       322 (Ind. Ct. App. 2014).


[18]   Instead, we conclude that the trial court did not abuse its discretion because its

       decision was not “clearly against the logic and effect of the facts and

       circumstances before the court or the reasonable inferences drawn therefrom.”

       Speaker, 759 N.E.2d at 1179. With respect to the statutory factors, H.P. was

       clear about her wish to stay in Mooresville schools. While Mother notes that

       H.P. could continue school in Mooresville even if Mother had primary custody,

       H.P. also clearly stated that she was tired of the commute every day between

       Mother’s house and her school, which Mother acknowledged amounted to

       forty-five to fifty minutes each way.


[19]   As for the other statutory factors, H.P. had a good relationship with Father and

       his wife, and she stated that she wanted to live with Father and for “[Lyburger]

       to watch [her].” (Respondent’s Ex A.). She was also adjusted to her home,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015   Page 11 of 13
       school, and community and had friends in Mooresville. Further, there was no

       evidence that Father had an unstable mental history or a history of domestic

       abuse towards either H.P. or Lyburger.


[20]   In contrast, there was some evidence that Mother had suffered from PTSD,

       borderline personality disorder, and anxiety in the past, and there was also

       evidence that she had a pattern of fighting with Father. Father testified at the

       hearing that once when the parents were exchanging H.P., Mother and Father

       got into an argument, and Mother pushed Father, which resulted in the filing of

       a police report. There was also evidence at the hearing that at one point there

       was a fight between Mother and Gosman that resulted in Mother’s books being

       thrown off of their roof. While we agree with Mother that there was not an

       excessive amount of evidence against her on either of these factors, there was

       some evidence.


[21]   Fortunately, we do agree with the trial court that this is not a situation where

       one parent is markedly unfit to act as the primary physical custodian. It is clear

       that both parents love H.P. and are able to properly care for her. Also, as

       Mother notes, although there is evidence in the record that Mother might have

       a history of mental illness and fighting with Father, that evidence is not

       excessive.


[22]   Nevertheless, as we noted above, “the trial court is often called upon to make

       Solomon-like decisions in complex and sensitive matters,” sometimes between

       two perfectly adequate alternatives. Id. And, here, we cannot conclude that the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-DR-636 | June 29, 2015   Page 12 of 13
       trial court’s decision was “clearly against the logic and effect of the facts and

       circumstances before the court or the reasonable inferences drawn therefrom.”

       Id. It was within the trial court’s discretion to determine that H.P.’s desire to

       avoid a long commute to school every day and her desire to remain in

       Mooresville, in combination with the other statutory factors, outweighed

       evidence such as the fact that Father will not be home immediately when H.P.

       gets home from school. See Gilbert, 7 N.E.3d at 322. Accordingly, we conclude

       that the trial court did not abuse its discretion when it granted Father primary

       physical custody of H.P.


[23]   Affirmed.


[24]   Crone, J., and Brown, J., concur.




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