MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                            FILED
court except for the purpose of establishing                    Jun 12 2020, 6:28 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                    CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court



ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Elizabeth Eichholtz Walker                              Katherine A. Harmon
Becker Bouwkamp Walker, P.C.                            Jenna L. Heavner
Indianapolis, Indiana                                   Mallor Grodner LLP
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Breelyn Finegan,                                        June 12, 2020
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        19A-DR-2619
        v.                                              Appeal from the Hamilton
                                                        Superior Court
Benjamin Finegan,                                       The Honorable William J. Hughes,
Appellee-Respondent,                                    Judge
                                                        Trial Court Cause No.
                                                        29D03-1404-DR-3087



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020            Page 1 of 21
                                 Case Summary and Issue
[1]   The marriage of Breelyn Finegan (“Mother”) and Benjamin Finegan (“Father”)

      was dissolved in 2015 with the parties to share joint legal custody of their three

      children and Mother to have primary physical custody subject to Father’s

      parenting time. In 2019, in addressing petitions to modify custody filed by each

      parent, the trial court modified the custody order to grant Father sole legal

      custody of the parties’ oldest child, K.F., and Mother sole legal custody of the

      youngest two children. For purposes of parenting time, Mother was designated

      the primary physical custodian of all three children. Mother now appeals,

      raising several issues for our review that we consolidate and restate as one:

      whether the trial court clearly erred in modifying legal custody of K.F.1

      Concluding the trial court committed no error, we affirm.



                             Facts and Procedural History
[2]   Mother and Father were married in 2003 and three children were born of the

      marriage: K.F., born in 2006, J.F., born in 2008, and L.F., born in 2010.

      Mother filed a petition for dissolution of the marriage in 2014 and a Decree of

      Dissolution was entered in August 2015. Incorporated into the Decree was a

      May 2015 agreed order memorializing that Mother and Father had agreed to

      joint legal custody of the children, with Mother having primary physical




      1
        The caption on page 1 of the Appealed Order incorrectly spells the parties’ last name as “Finnegan.” The
      remainder of the order as well as the other pleadings in this cause use the correct spelling of “Finegan.”

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020                   Page 2 of 21
      custody and Father having slightly modified parenting time. See Appellant’s

      Appendix, Volume II at 20, 24.


[3]   The parties’ post-dissolution relationship has been contentious. See Appealed

      Order at 4 (“The Court finds that the parties do not effectively communicate.

      There is substantial justification in the [Chronological Case Summary] and the

      Decree in this cause to indicate that this is not a new circumstance.”). In

      August of 2018, Mother filed a motion seeking appointment of a parenting time

      coordinator, alleging the “level of conflict between the parties has made it

      difficult for the parties to effectively co-parent the children” and that she

      “believes that the parties are unlikely to be able to communicate and cooperate

      politely and effectively without professional assistance.” Appellant’s App., Vol.

      II at 37-38. In September, Father filed a motion seeking to modify custody,

      parenting time, and child support, alleging that he “believes it is best that the

      parties share joint legal and physical custody of the parties’ minor children” and

      requesting the court modify custody accordingly. Id. at 73. Mother thereafter

      requested appointment of a Guardian Ad Litem (“GAL”) to investigate and

      report on the various issues before the court. The court granted this motion and

      Wendy Clar was appointed GAL in November. The parties’ pending motions

      were ultimately set for hearing in September 2019.


[4]   The parties’ children attend a private Catholic school in Indianapolis. K.F. has

      special needs, which the Guardian Ad Litem described during these post-

      dissolution proceedings: “She has cerebral palsy. She has some mental health

      diagnoses. She has some learning disabilities[.]” Transcript, Volume 2 at 9

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 3 of 21
      (cleaned up). At some point during the 2018-19 school year, the school

      informed Mother and Father that it would be unable to continue to meet K.F.’s

      special needs, and the parties undertook to find a new school for K.F. but were

      ultimately unable to agree on where she should be enrolled. Mother favored a

      private school; Father favored a public school in the Hamilton Southeastern

      School District where he lives.


[5]   In June 2019, Mother filed a motion seeking to modify custody, alleging there

      had been a substantial and continuing change in circumstances and it would be

      in the children’s best interest to modify the joint legal custody arrangement.

      Mother alleged:


              The level of conflict between the parties has made it difficult for
              the parties to effectively co-parent the children and the parties’
              conflict is detrimental to the children’s best interests.
              Specifically, the parties are at an impasse regarding which school
              [K.F.] should attend, and regarding her health care treatment.


      Appellant’s App., Vol. II at 86. Mother requested that she be granted sole legal

      custody of the children and given the authority to select K.F.’s school and make

      healthcare decisions for the children. Father filed a response to Mother’s

      motion in which he requested sole legal custody of the children be granted to

      him. These motions were also set to be heard at the previously scheduled

      hearing in September 2019.


[6]   The GAL filed her 113-page report with the court in August. The GAL

      recommended, as relevant to this appeal, that Mother continue to have primary


      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 4 of 21
physical custody of the children, that Mother be granted sole legal custody of

the children, and that K.F. be enrolled in the Hamilton Southeastern School

District. At the outset of the hearing on September 9, 2019, Mother’s counsel

summed up her position:


        The most significant but not the only issue of dispute between the
        parties has to do with school attendance by the parties’ eldest
        daughter, [K.F.] . . . who is a special needs child, high-
        functioning, autistic, and also medical challenges. And this is a
        case where, I think, two parents have two different views and
        neither view is necessarily right. Neither view is necessarily
        wrong. They are simply different. [Mother], although she does
        not love all of the recommendations of the [GAL], is prepared to
        accept all of them as a package and that will be her proposal
        today.


Tr., Vol. 2 at 5-6 (cleaned up). Father’s counsel then summed up his position:


        [Father] has asked for equal time with the children. . . . He does
        agree that there have been times when the parties have co-
        parented well and there have been times when the parties have
        not co-parented well which is not unusual. The biggest issue
        that’s facing them currently, he would agree, would be the school
        issue with regard to [K.F.]. [M]y client has proposed a public
        school. He believes that to be in [K.F.’s] best interest [and] he
        would be requesting the court grant his request to choose the
        school for the child. He’s also requesting that the parties keep
        joint legal custody. . . . He would be willing to adopt the [GAL’s]
        recommendation with regard to the school, but he doesn’t think
        we’re at a point where joint . . . legal custody is just untenable[.]


Id. at 6 (cleaned up).



Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 5 of 21
[7]   Both parties and the GAL testified at the hearing. Mother testified she was

      seeking sole legal custody “[b]ecause [Father] and I have issues communicating

      and . . . coming to decisions for our kids.” Id. at 40. She acknowledged if she

      were granted sole legal custody, she would be required to “discuss [issues] with

      [Father] in good faith [and] take his opinion to heart when trying to come to the

      decision that [she] think[s] is best for the kids.” Id. at 41 (cleaned up).

      Reiterating her counsel’s summation, Mother said she agreed with the GAL’s

      recommendations with the exception of school choice but was willing to adhere

      to all the recommendations including school choice. Id.


[8]   Father testified that his primary concern if Mother was granted sole legal

      custody was “that what is carried out is not the wishes of both parents or in the

      children’s best interest.” Id. at 97. He asked for the court to order K.F.’s school

      be changed to a junior high in the Hamilton Southeastern School District. He

      further asked for the court to affirm the joint legal custody arrangement but

      modify parenting time so that the parties have equal parenting time. 2 And he

      asked that the court appoint a parenting time coordinator before considering

      changing legal custody.


[9]   Finally, the GAL testified about her report and recommendations. She did not

      recommend appointing a parenting time coordinator because “[j]oint legal

      custody is not appropriate for these children. . . . [These children] need peace.



      2
        This position is a departure from the requests Father made in his second motion to modify custody and
      from the position discussed by the GAL in her report.

      Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020                  Page 6 of 21
They need to enjoy whatever’s left of their childhood. . . . [T]here’s no time to

go and now try to get along. That time is past. So no, I do not recommend a

[parenting time coordinator].” Id. at 14. Instead, she recommended sole legal

custody to Mother because “there’s some sense of calmness at [Mother’s]. . . .

[A]t the end of the day, because the parties can’t get along, [control] can only

go to one person. . . . [I]t has to go to the parent who is least likely to continue

to facilitate the fire. And in this case, that’s mom.” Id. at 28-29; see also

Exhibits, Volume 3 at 232 (GAL report stating that in her opinion, “a joint legal

custody arrangement is not in the best interest of these children [because t]he

parties interacting creates nothing short of a toxic environment for [them].”).

She did not believe a change in the physical custody arrangement was

warranted. See Exhibits Vol. 3 at 235. As for choice of school for K.F., she

noted that although the parties disagree about where K.F. should go to school,

she did not find either parent’s position to be taken in bad faith. She testified

that she “took great pains in thinking” about her school recommendation and

“wanted to . . . turn over every stone” since the parties could not agree on

where to place K.F. Tr., Vol. 2 at 16-17; see also Exhibits, Vol. 3 at 234 (GAL

report stating she had “implored” counsel to encourage their clients to come to

an agreement “rather than have GAL make a recommendation and the Court

decide the issue since the parties know their child best. Unfortunately, that was

not to be.”). The decision “wasn’t really close, and it wasn’t a slam dunk[; i]t

was probably somewhere in the middle[,]” but based on the parties’ “hopes and

dream[s]” for K.F. and K.F.’s doctor’s statement that it would probably be

easier and more realistic for K.F. to “transition from public school to real life,”
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 7 of 21
       her recommendation was that K.F. go to public school in the district where

       Father resides. Tr., Vol. 2 at 16-17.


[10]   The trial court took the matter under advisement and issued an order in

       October 2019. The court found that there has been a substantial change in two

       specific factors under Indiana Code sections 31-17-2-8 and 31-17-2-15. First,

       that the wishes of the parties had changed, and they no longer agree that joint

       custody is in the best interests of their children. And second, that K.F.’s

       adjustment to her school had changed, and despite “excellent legal advice,

       sound medical advice, expert educational recommendations, and a sincere plea

       of the [GAL],” the parties failed to act in K.F.’s best interests to rectify the

       educational situation and meet K.F.’s educational needs without court

       intervention. Appealed Order at 7. Accordingly, the trial court made the

       following finding:


                12. The [GAL] has recommended that sole legal custody be
                placed in [Mother] for all three children. The Court finds that
                this is not in the best interest of [K.F.]. In reviewing the
                materials submitted by [Mother] at one point she quoted a statute
                as providing that these children may attend the school in the
                district where they live or if agreed in the other parent’s school
                district.[3] This is an inaccurate quote. It is only where a



       3
        During the parties’ efforts to find a school agreeable to them both, Father suggested looking at Zionsville
       Schools because he owned a home there. Mother responded (via email):

                [T]he children cannot attend Zionsville Schools because neither you nor I live there.
                Further, the property you own is for sale, and the home in Fishers where you live is not
                for sale. According to Indiana Code § 20-26-11-2 and -2.5, the children may attend


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020                       Page 8 of 21
         custodial parent elects, with elections made annually, that a child
         may attend the school in a district where the non-custodial parent
         resides. Adopting the GAL recommendation as to custody of
         [K.F.] would annualize the very same school choice issues that
         have stymied these parties since the Fall of 2018. Granting sole
         legal custody of [K.F.] to Mother would permit Mother to
         remove [K.F.] from Hamilton Southeastern Schools and relocate
         her without the consent or input from Father. Therefore, the
         Court finds and orders that Father shall be awarded sole legal
         custody of [K.F.] and Mother shall be awarded sole legal custody
         of [J.F.] and [L.F.]. For the purposes of application of the
         Parenting Time Guidelines for Holiday and special breaks
         parenting time only, Mother shall be designated as the primary
         physical custodian of all three children.


Id. at 9-10. The trial court also made modifications to parenting time, set

restrictions and requirements on communications between the parties, and

modified Father’s child support obligation, among other things. Mother

appeals only the trial court’s finding regarding legal custody of K.F.



                              Discussion and Decision




         school in the school district where I live, or if you and I both agree, they may attend
         school in the school district where you live.


Exhibits, Vol. 3 at 93. It is Mother’s statement in this email to which the trial court refers.



Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020                      Page 9 of 21
                                      I. Standard of Review
[11]   A modification of custody is a determination that rests in the sound discretion

       of the trial court. Jarrell v. Jarrell, 5 N.E.3d 1186, 1190 (Ind. Ct. App. 2014),

       trans. denied. When reviewing the trial court’s decision, we may neither reweigh

       the evidence nor judge the credibility of witnesses. Id. Instead, we review

       custody modifications for an abuse of discretion “with a preference for granting

       latitude and deference to our trial judges in family law matters.” Werner v.

       Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011), trans. denied. We grant

       this latitude and deference because it is the trial court that observes the parties’

       conduct and demeanor and hears their testimony firsthand. In re Paternity of

       C.S., 964 N.E.2d 879, 883 (Ind. Ct. App. 2012), trans. denied. We consider only

       the evidence favorable to the trial court’s judgment and all reasonable

       inferences derived from it. Id. “[I]t is not enough that the evidence might

       support some other conclusion, but it must positively require the conclusion

       contended for by appellant before there is a basis for reversal.” Kirk v. Kirk, 770

       N.E.2d 304, 307 (Ind. 2002). It is not impossible to reverse a trial court’s

       decision regarding child custody on appeal, but given our deferential standard

       of review, it is relatively rare. See Montgomery v. Montgomery, 59 N.E.3d 343,

       350, 354 (Ind. Ct. App. 2016), trans. denied.


[12]   According to the record before us, neither party filed a Trial Rule 52(A) written

       request with the trial court for special findings and conclusions thereon. We

       therefore treat the trial court’s order as sua sponte findings of fact. Estudillo v.

       Estudillo, 956 N.E.2d 1084, 1089 (Ind. Ct. App. 2011). Sua sponte findings

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 10 of 21
       control only as to the issues they cover, and a general judgment standard will

       control as to the issues upon which there are no findings. Yanoff v. Muncy, 688

       N.E.2d 1259, 1262 (Ind. 1997). We will affirm a general judgment entered with

       findings if it can be sustained on any legal theory supported by the evidence. Id.

       When a court has made special findings of fact, we review sufficiency of the

       evidence using a two-step process. Id. First, we must determine whether the

       evidence supports the trial court’s findings of fact. Id. Findings are clearly

       erroneous when there are no facts to support them either directly or by

       inference. Bettencourt v. Ford, 822 N.E.2d 989, 997 (Ind. Ct. App. 2005).

       Second, we must determine whether those findings of fact support the trial

       court’s judgment. Yanoff, 688 N.E.2d at 1262. “We will not substitute our own

       judgment if any evidence or legitimate inferences support the trial court’s

       judgment.” Baxendale v. Raich, 878 N.E.2d 1252, 1257-58 (Ind. 2008).


                                II. Change of Legal Custody
[13]   Mother’s argument on appeal is two-fold. She primarily claims that finding

       #12 of the trial court’s order, which was the basis for the modification of legal

       custody, is clearly erroneous because it is not supported by the evidence. She

       also briefly claims the trial court applied the wrong legal standard in reaching

       its decision. We will address the appropriate legal standard for modifying legal

       custody first.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 11 of 21
                                          A. Legal Standard
[14]   Legal custody refers to the authority and responsibility for making major

       decisions regarding a child’s upbringing, including decisions about education,

       health care, and religious training. See Ind. Code § 31-9-2-67. Joint legal

       custody, which means the parents share that authority and responsibility, is

       appropriate when the parties are willing and able to communicate and

       cooperate for the benefit of the child’s welfare. Carmichael v. Siegel, 754 N.E.2d

       619, 635 (Ind. Ct. App. 2001); see Ind. Code § 31-17-2-15(2). When the parents

       have made child-rearing a battleground and cannot work together, joint legal

       custody is not appropriate. Milcherska v. Hoerstman, 56 N.E.3d 634, 642 (Ind.

       Ct. App. 2016).


[15]   The statute governing modification of child custody states in relevant part:


               (a) The court may not modify 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 . . . of
                       this chapter.


               (b) In making its determination, the court shall consider the
               factors listed under section 8 of this chapter.


       Ind. Code § 31-17-2-21. However, when considering a modification from joint

       legal custody to sole legal custody, the trial court must also consider whether


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 12 of 21
       there has been a substantial change in one or more of the factors found in

       Indiana Code section 31-17-2-15, the factors to be considered by the trial court

       in initially determining whether an award of joint legal custody would be in the

       best interests of the child. Julie C. v. Andrew C., 924 N.E.2d 1249, 1259-60 (Ind.

       Ct. App. 2010).


[16]   The factors to be considered in this case concerning modification of joint legal

       custody, then, are those found in Indiana Code section 31-17-2-8 (“Section 8”):


               (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

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 13 of 21
                     (C) community.


           (6) The mental and physical health of all individuals involved.[4]


And those found in Indiana Code section 31-17-2-15 (“Section 15”):


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


           (2) whether the persons awarded joint 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 custody;


           (5) whether the persons awarded joint custody:


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


                     (B) plan to continue to do so; and


           (6) the nature of the physical and emotional environment in the
           home of each of the persons awarded joint custody.




4
    Three additional factors are omitted as they are not relevant in this case.


Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020     Page 14 of 21
       Particularly relevant to whether a court should modify joint legal custody to

       sole legal custody is whether there has been a substantial change in one or more

       of the factors the trial court considered when making the initial award of joint

       custody – that is, those factors enumerated in Section 15. Julie C., 924 N.E.2d

       at 1260. Moreover, the second factor under Section 15 (parental cooperation) is

       of particular importance in making legal custody determinations. Id.


[17]   Mother contends the trial court’s decision was based on an erroneous legal

       standard because it was primarily based on a factor outside those enumerated in

       Sections 8 and 15 and therefore failed to properly consider the best interests of

       the child. A judgment is clearly erroneous if it relies on an incorrect legal

       standard. T.R. v. E.R., 134 N.E.3d 409, 414 (Ind. Ct. App. 2019).


[18]   Here, the trial court acknowledged that the standard for modifying legal

       custody is best interests of the child plus a substantial change in one or more of

       the factors in Sections 8 and 15. See Appealed Order at 4 (Finding #5) and 5

       (Finding #7). Although the trial court only made specific findings that there

       had been a substantial change in one Section 15 factor (whether the parties are

       willing and able to communicate and cooperate) and one Section 8 factor

       (K.F.’s adjustment to her school), it was not required in this case to enter a

       finding as to each factor it considered. See Russell v. Russell, 682 N.E.2d 513,

       515 (Ind. 1997) (“Although a court is required to consider all relevant factors in

       making its determination [about a motion to modify custody], it is not required

       to make specific findings.”). Such findings are only required if requested in

       writing pursuant to Indiana Trial Rule 52(A), id. at 515 n.2, and as we have

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 15 of 21
       already noted, neither party made such a request. Moreover, because the trial

       court did not modify physical custody, many of the Section 8 factors did not

       come into play (for instance, K.F.’s interaction and interrelationship with her

       parents and siblings and her adjustment to her home are not considerations

       because they were not going to be significantly impacted by the trial court’s

       decision). Finally, the trial court made a specific finding that joint legal custody

       is not in the best interests of the children and explained that its order was

       “trying to find a way to address the best interests of the minor children in the

       circumstances in which this Court finds them.” Appealed Order at 9 (Finding

       #9).


[19]   To the extent Mother argues the trial court’s decision was in error because it

       was based on consideration of something other than the statutory factors, the

       Section 8 factors are not exclusive. Baxendale, 878 N.E.2d at 1254-55. The trial

       court must consider all factors relevant to making a custody determination. Id.;

       Ind. Code § 31-17-2-8. In addition, under Section 15, the court is to “consider it

       a matter of primary, but not determinative, importance that the persons

       awarded joint custody have agreed to an award of joint legal custody[,]” and it

       is clear these parties no longer agree. The trial court applied the correct legal

       standard in making its determination.


                              B. Modification of Legal Custody
[20]   Mother’s primary argument is that Finding #12, which modified joint legal

       custody of all three children to split sole legal custody, is not supported by the

       evidence.
       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 16 of 21
[21]   First, we address Mother’s contention that it is “unprecedented” to split custody

       in the way the trial court did. Brief of Appellant at 25. We agree it is unusual,

       but it is not “unprecedented.” For instance, in Hecht v. Hecht, 142 N.E.3d 1022

       (Ind. Ct. App. 2020), a case with facts markedly similar to these, the parties

       shared joint legal and physical custody of their two children. The youngest

       child had special medical and educational needs. Both parents filed motions to

       modify custody, seeking sole legal and physical custody of the children. The

       trial court found no grounds to change legal or physical custody of the oldest

       child or physical custody of the youngest, but found that Mother should be

       granted sole legal custody of the youngest child because the evidence showed

       the parties were unable to agree and make timely decisions for her, and her

       medical condition required a decision maker. We affirmed, holding there was

       ample evidence that the parents were unable to communicate and co-parent

       effectively regarding matters related to the child’s educational and medical

       needs. Id. at 1033; see also Gonzalez v. Gonzalez, 893 N.E.2d 333, 336-37 (Ind. Ct.

       App. 2008) (determining that, although the particular joint legal custody

       arrangement was unusual, the trial court did not abuse its discretion in initially

       granting father legal and physical custody of two children, mother legal and

       physical custody of two children, and granting mother physical custody and

       father legal custody of two children). Thus, there is indeed legal precedent for

       this unorthodox arrangement, provided the reason is stated and supported by

       the evidence. See In re Paternity of B.D.D. and B.D.D., 779 N.E.2d 9, 14 (Ind. Ct.

       App. 2002) (noting, in the context of one parent being granted physical and

       legal custody of one child and the other parent being granted physical and legal
       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 17 of 21
       custody of the other, that “[o]rders splitting custody have been upheld and are

       not a per se abuse of discretion in Indiana,” although as always, the best

       interests of the children is the paramount consideration).


[22]   Next, we address Mother’s argument that the trial court’s decision to grant

       Father sole legal custody of K.F. was based solely on speculation concerning

       future school choice for K.F. The trial court noted in its order that accepting

       the GAL’s recommendation to grant Mother sole legal custody of all three

       children but ordering K.F.’s attendance at a school in Father’s school district

       would “annualize the . . . same school choice issues that have stymied these

       parties” for over a year. Appealed Order at 10 (Finding #12). Indiana Code

       section 20-26-11-2.5(a) states that in the case of a child of divorced parents, the

       parent granted physical custody “may elect for the student to have legal

       settlement in the school corporation whose attendance area contains the

       residence” of either the child’s mother or the child’s father. Such election is to

       be made on a yearly basis. Ind. Code § 20-26-11-2.5(b). If the custodial parent

       does not make an election, “the legal settlement of the student is the school

       corporation whose attendance area contains the residence of the parent granted

       physical custody by the court order.” Ind. Code § 20-26-11-2(3). Thus, as the

       physical custodian, Mother would have to make the annual election for K.F. to

       attend Hamilton Southeastern Schools and if she did not, K.F.’s attendance

       would revert to Mother’s school district. Mother asserts the trial court’s

       decision was based on one comment she made in a different context and

       speculation that if given sole legal custody she would change K.F.’s school at


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 18 of 21
       the first opportunity or hold the decision captive annually, an erroneous

       supposition considering she accepted the GAL’s recommendation at the

       hearing. However, given the documented lack of productive communication

       and agreement between the parties, the trial court was justified in using their

       past behavior to inform its decision, and their past behavior indicates the

       children “have been recruited and used as ammunition in this cause[.]”

       Exhibits, Vol. 3 at 233 (GAL’s report). There is no reason to expect that would

       change in the future. Moreover, Mother’s “agreement” to the GAL’s

       recommendation came at the last possible moment and was based in part on the

       GAL recommending that Mother have sole legal custody of all three children.


[23]   Finally, Mother contends that the trial court could have entered a “less

       extreme” order than granting Father sole legal custody of K.F., such as

       awarding Mother sole legal custody as recommended by the GAL and simply

       ordering that K.F. be enrolled and remain enrolled at Hamilton Southeastern or

       granting Father legal custody of all three children as to educational decisions

       and Mother legal custody for other decisions. Br. of Appellant at 39. She

       argues the trial court’s order to split legal custody of the children is not in their

       best interests because it does not consider K.F.’s non-educational needs, such as

       her mental/physical health, her religious upbringing, and her medications and

       medical treatment, nor does it consider “continuity in decision making” for all

       the children. Id. However, the fact that the trial court’s order focuses on

       making the decision the parties utterly failed to make themselves for the benefit

       of their child – who could not continue in the school she had been attending and


       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 19 of 21
       for whom Mother and Father still could not agree on a new school – does not

       mean the trial court did not consider all facets of the decision. In addition, as

       Father points out, “K.F.’s best interests [are] distinct from J.F.[’s] and L.F.[’s].”

       Appellee’s Brief at 19. It was the parties’ own conduct that made this the

       primary issue to be resolved by the trial court.


[24]   In short, there was ample evidence that the parties could not cooperate in co-

       parenting their children and that a change from joint legal custody was

       necessary. As the trial court noted, both parties filed a motion to modify

       custody to sole legal custody and the failure of joint legal custody “may be the

       only significant factor in this cause upon which these parties do agree.”

       Appealed Order at 6. Moreover, the order that Father have sole legal custody

       to settle the educational choice for K.F. is supported by the testimony and

       lengthy and thorough report of the GAL regarding which school would be a

       better placement for K.F.5 Although the trial court did not accept the entirety of

       the GAL’s recommendation, it is not required to, see Clark v. Madden, 725

       N.E.2d 100, 109 (Ind. Ct. App. 2000), nor is it precluded from making an order

       different from the proposals advanced by the parties, Richardson v. Richardson,

       34 N.E.3d 696, 704 (Ind. Ct. App. 2015) (holding the trial court did not abuse

       its discretion in entering a custody arrangement not requested by the parties).




       5
         Approximately twenty pages, or roughly one-fifth, of the GAL’s report had to do with the children’s
       schooling.

       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020                  Page 20 of 21
       The trial court accepted the GAL’s school choice recommendation and enacted

       the arrangement most likely to enable that.


[25]   In custody disputes, the trial court “is often called upon to make Solomon-like

       decisions in complex and sensitive matters.” Trost–Steffen v. Steffen, 772 N.E.2d

       500, 509 (Ind. Ct. App. 2002) (citations omitted), trans. denied. The trial court is

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

       their testimony; therefore, its decision receives considerable deference in an

       appellate court. Id. Giving the trial court the appropriate deference, we

       conclude the trial court’s modification of legal custody of K.F. is supported by

       the evidence and the judgment is not clearly erroneous.



                                              Conclusion
[26]   The trial court applied the proper legal standard in determining legal custody of

       the parties’ children and did not abuse its discretion in modifying legal custody.

       We affirm the trial court’s order.


[27]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DR-2619 | June 12, 2020   Page 21 of 21
