MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
this Memorandum Decision shall not be                                      May 21 2018, 6:42 am

regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   Court of Appeals
                                                                                 and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Allison Martinez Wheeler                                Cynthia Phillips Smith
ROMAN-LAGUNAS & WHEELER, LLC                            LAW OFFICE OF CYNTHIA P. SMITH
Indianapolis, Indiana                                   Lafayette, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Kinsey,                                            May 21, 2018
Appellant,                                              Court of Appeals Case No.
                                                        79A02-1712-DR-2743
        v.                                              Appeal from the Tippecanoe
                                                        Circuit Court
Julia Kinsey,                                           The Honorable Thomas H. Busch,
Appellee.                                               Judge
                                                        Trial Court Cause No.
                                                        79C01-1111-DR-199



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018                 Page 1 of 14
                                          Case Summary
[1]   Mark Kinsey (“Father”) appeals the denial of his motions to modify custody

      and hold Julia Kinsey (“Mother”) in contempt. He also appeals the order

      modifying child support.


[2]   We affirm.



                                                   Issues
[3]   Father raises the following, restated issues:


              I.      Whether the trial court clearly erred when it denied
                      Father’s motion to modify custody of the parties’ children.


              II.     Whether the trial court clearly erred when it denied
                      Father’s motion to hold Mother in contempt of court.


              III.    Whether the trial court clearly erred when it modified
                      child support.


                            Facts and Procedural History
[4]   Father and Mother are the parents of three children: M.X.K., born June 1,

      2004; M.R.K., born March 27, 2006; and V.K., born April 1, 2009. The parties’

      marriage was dissolved on October 2, 2012, at which time the parties were

      awarded joint legal and shared physical custody of the children. Mother was to

      have the children Monday through Friday from 8:30 a.m. through 6:00 p.m.,




      Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 2 of 14
      because she worked a night shift, and Father had the children from 6:00 p.m.

      through 8:30 a.m. Each parent had the children on alternate weekends.


[5]   On April 25, 2013, Father filed a notice of intent to relocate from Tippecanoe

      County to Carroll County. Mother objected to the relocation, and she filed a

      petition to modify custody. The trial court denied Father’s request to relocate

      and ordered the children to remain living in Tippecanoe County and attending

      Tippecanoe schools. The court denied Mother’s motion to modify custody and

      ordered that the previously ordered parenting schedule remain the same.


[6]   On December 2, 2013, Father filed another notice of intent to relocate and

      Mother filed another objection and petition to modify custody. On April 14,

      2015, the trial court denied Father’s request to relocate and ordered that the

      parenting time schedule remain as previously ordered. The court denied

      Mother’s petition to modify custody “without prejudice to renewal should

      [Mother’s] application for day-shift be approved.” Appellant’s App. at 36.


[7]   In January of 2016, Mother filed a petition to modify primary physical custody

      to her because she had obtained a day shift at her employment. Pursuant to the

      parties’ temporary mediation agreement, Mother assumed physical custody of

      the children in January 2016 and Father had the children on alternate weekends

      and one weekly overnight visit.


[8]   On February 4, 2016, Father filed a motion to modify parenting time. On June

      21, 2016, Father filed another notice of intent to relocate. On October 13, 2016,

      Father filed an amended motion to modify custody and a motion for rule to

      Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 3 of 14
      show cause why Mother should not be held in contempt of court. The court

      held evidentiary hearings on all pending matters on October 20, 2016 and

      March 23, 2017. A court-appointed Guardian ad Litem (“GAL”) filed a report

      on March 9, 2017.


[9]   On May 11, 2017, the trial court issued findings of fact, conclusions of law and

      judgment, stating in relevant part:


              13. Former Husband presented three reasons for requesting a
              change of custody: (1) former Wife was providing inadequate
              care for the children after she left for her employment; (2)
              [M.X.K.]’s school performance; and (3) former Wife’s failure to
              enroll the children in extra-curricular activities.


              l4.  All three of these allegations were examined by the
              Guardian Ad Litem.


              15. The former Wife’s father lives on the same farm land
              where she resides with the children. Grandfather supervises the
              children when they are getting ready for school. The Court finds
              this is a suitable arrangement.


              16. [M.X.K.]’s teachers testified he is working up to his
              potential in most of his classes. They also testified that he often
              goofs around in class instead of completing his assignments.
              Former Husband sought to have a case conference about
              [M.X.K.]’s school performance with all of his teachers. Former
              Husband never informed former Wife about this meeting or the
              results of the meeting. This is counter-productive to the
              academic progress for [M.X.K.]. The parties share joint legal
              custody pursuant to the prior Court Order.



      Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 4 of 14
        17. The former Wife has enrolled the children in extra-
        curricular activities. Since the last Court Order, they have
        participated in basketball, wrestling, and 4-H. Former Husband’s
        complaints about the lack of participation in outside activities are
        ill founded.


        18. The parties entered into [a] Temporary Mediated
        Settlement Agreement in 2016. In the agreement, former
        Husband was to pay the sum of One Hundred and 00/100ths
        Dollars ($100.00) per week beginning February 19, 2016, and a
        like sum each week thereafter as temporary child support.


        19. A new Child Support Worksheet is attached hereto as
        Exhibit A. Pursuant to the worksheet, former Husband shall pay
        the sum of $282.00 per week the first Friday after entry of this
        Order.


        20. The Guardian Ad Litem found former Husband’s Motion
        for Change of Custody should be denied. The children looked
        happy, well adjusted, comfortable and well- mannered when they
        met with the GAL. (Report p. 6) The children also reported
        former Husband denigrates their Mother.


                                               ***


        22. [M.X.K.] received grades of B, A, and C’s in the first
        quarter of his 2016-2017 academic year. (GAL report p. 11)
        Any failure to turn in homework happened after both parents
        exercised parenting time.


        23. The GAL also contacted former Husband’s second ex—
        wife, Karen Delaney-Stankard. She reported Father had a very
        difficult time taking care of the three children on his own. She
        also reported former Husband would talk negatively about his ex-

Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 5 of 14
        wife any chance he could do so. Father would tell the children
        that Mother was a horrible mother and a liar. (GAL report 13-
        14) It is clear from the report of the GAL that former Husband
        speaks very negatively about the former Wife to the children on a
        regular basis. The Court considers this to be pivotal information
        in making its decision in this case.


        24. The GAL notes [M.R.K.] is very academically gifted,
        while [M.X.K.] struggles more in school. [V.K.] is a good
        student and reads at or above her grade level. (GAL report p.7—
        18)


                                               ***


        32. Considering the statutes above, the GAL report, the
        exhibits, and the testimony of the parties, the Court now denies
        Former Husband’s Custody Modification. The physical custody
        of the children shall remain with the Former Wife. The Court
        orders the recommendations of the GAL be adopted and ordered
        in this matter, with the exception of additional parenting time for
        the Former Husband for a few hours on Former Wife’s weekend.
        The Court makes this finding in part because of the strife and
        animosity between the parties.


                                               ***


        34. The Court bases its denial of this request for modification
        by Former Husband upon the GAL report, the insufficiency of
        the evidence of a substantial change in circumstances in one of
        the custody factors pursuant to statute, and that the requested
        change in custody is not in the best interests of the children.


        35. The sufficiency of the evidence presented in this case does
        not rise to the level required to demonstrate a substantial change

Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 6 of 14
               in circumstances. In Re the Marriage of Steele, 51 N.E.3d 119
               (Ind. Sup. 2016).


       Appellant’s App. at 23-29.


[10]   On June 12, 2017, Father filed a motion to correct error regarding the March

       23, 2017 order. On September 26, 2017, Father filed an emergency motion to

       modify custody, and for a rule to show cause. On October 26, 2017, Mother

       filed a motion for contempt, alleging Father’s failure to pay child support. On

       October 31, 2017, the court held a hearing on all pending motions and ordered

       as follows:


               1.  Father’s Motion to Correct Errors is in all respects
               DENIED.


               2.    Father’s Amended Motion for Modification and for Rule
               to Show Cause is in all respects DENIED.


               3.  The Court’s Order for hearing held March 23, 2017 is
               REAFFIRMED.


               4.      Father’s Emergency Motion for Modification of Custody,
               or, in the alternative Modification of Parenting Time is DENIED
               to the extent it requests emergency relief.


               5.     The parties are ordered to meet and confer regarding: (a)
               Father’s Motion for Modification of Custody or Parenting: Time
               to the extent it requests non-emergency relief (b) Mother’s
               Petition to Cite for Contempt; and (c) Whether child support
               should be modified. If no agreement can be reached, the parties



       Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 7 of 14
                are ordered to schedule further proceedings on any remaining
                issues.[1]


       Father now appeals this order, which reaffirmed the March 23, 2017 order.



                                   Discussion and Decision
                                      Modification of Custody
[11]   Father asserts that the trial court erred when it refused to modify the parties’

       custody order. Our standard of review in a custody modification action is for

       abuse of discretion. Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App.

       2010) (citations omitted). However, when the trial court enters findings and

       conclusions pursuant to Indiana Trial Rule 52, as it did here, our standard of

       review is as follows:


                First, we determine whether the evidence supports the findings
                and second, whether the findings support the judgment. In
                deference to the trial court’s proximity to the issues, we disturb
                the judgment only where there is no evidence supporting the
                findings or the findings fail to support the judgment. We do not
                reweigh the evidence, but consider only the evidence favorable to
                the trial court’s judgment. Challengers must establish that the
                trial court’s findings are clearly erroneous. Findings are clearly



       1
         Pursuant to this order, the motions to modify custody were clearly denied, a child support order was clearly
       entered, and any further proceedings on the issues of modification of custody/parenting time and/or child
       support would require new motions by the parties. Thus, the trial court’s orders on modification of custody
       and child support are final appealable orders. Ind. Appellate Rule 9(A)(1); Haag v. Haag, 163 N.E.2d 243,
       247 (Ind. 1959) (holding an order for support and custody of minor children entered subsequent to divorce
       decree is, for purpose of appeal, a final judgment appealable as such). Thus, we denied Father’s Motion for
       Acceptance of Interlocutory Appeal in this matter.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018              Page 8 of 14
               erroneous when a review of the record leaves us firmly convinced
               a mistake has been made. However, while we defer substantially
               to findings of fact, we do not do so to conclusions of law.
               Additionally, a judgment is clearly erroneous under Indiana Trial
               Rule 52 if it relies on an incorrect legal standard. We evaluate
               questions of law de novo and owe no deference to a trial court’s
               determination of such questions.


       Estate of Kappel v. Kappel, 979 N.E.2d 642, 651-52 (Ind. Ct. App. 2012)

       (quotation marks and citations omitted).


[12]   Under Indiana Code Section 31-17-2-21, a court may not modify a child

       custody order unless modification is in the child’s best interests and there is a

       substantial change in one of the several factors. Indiana Code Section 31-17-2-8

       provides that the factors relevant to a custody order are as follows:


               (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.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 9 of 14
               (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 . . . .


       Thus, a trial court may not modify custody until it determines that a substantial

       change has occurred and that a modification is in the child’s best interests. E.g.,

       In re Marriage of B.K. and B.P., 873 N.E.2d 729, 737 (Ind. Ct. App. 2007) (citing

       Barger v. Pate, 831 N.E.2d 758, 762 (Ind. Ct. App. 2005)), trans. denied.


[13]   Here, Father contends that a substantial change has occurred, making

       modification of physical custody to him in the children’s best interests.

       Specifically, he alleges the following “substantial changes:” (1) Mother

       provided inadequate care for the children in the mornings after she left for work

       and before the children went to school; (2) M.X.K.’s school grades suffered

       because he was required to “act as the defacto parent” for himself and his two

       siblings in the mornings; and (3) Mother failed to enroll the children in extra-


       Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 10 of 14
       curricular activities. Appellant’s Br. at 11. In support of these contentions,

       Father cites evidence he presented and asks us to give his evidence more weight

       than the evidence cited by the trial court. However, we will not reweigh the

       evidence. Kappel, 979 N.E.2d at 652.


[14]   Rather, looking at the evidence supporting the judgment, as we must, we find

       the evidence supported the trial court’s findings and its findings support its

       judgment. The evidence—including the March 9, 2017, GAL report—

       established the following: that Mother’s father/children’s maternal grandfather

       took care of the children in the mornings after Mother left for work and before

       the children went to school; that M.X.K.’s grades for the first quarter of the

       2016-2017 school year were one A, four Bs, and two Cs, and his teachers

       believed he was working up to his potential in most classes; Father had a

       difficult time taking care of the three children alone, i.e., without help from his

       most recent former wife; Father “would talk negatively about Mother any

       chance he could do so,” (Appellee’s App. at 60); Father told the children that

       Mother was a “horrible mother and a liar,” (Id.); Father “continued to speak

       negatively about Mother in front of the children, and attempted to have the

       children pick him over their Mother,” (Id. at 61); M.R.K. and V.K. had

       satisfactory school performances; none of the children expressed a desire to be

       in the primary physical custody of Father; the children were well-adjusted to

       their schools, community, and homes; and the children were engaged in the 4-

       H club, basketball, and wrestling. The GAL—who interviewed the parties, the

       children, Father’s most recent ex-wife, and the children’s teachers—concluded


       Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 11 of 14
       in his report that it was not in the children’s best interests to modify custody of

       the children. This evidence supports the trial court’s factual findings, and those

       findings support the court’s conclusions that there is no substantial change to

       justify modification of primary physical custody from Mother to Father, and

       that modification of custody would not be in the children’s best interests.


                                Ruling on Contempt Motion
[15]   Father erroneously asserts that the trial court failed to rule on his motion to

       hold Mother in contempt for failing to communicate with him about one of

       M.X.K.’s physicals and the children’s extra-curricular activities. The trial court

       specifically denied that motion in its October 31, 2017 order.


[16]   To the extent Father claims the order denying his motion was erroneous, he has

       waived that argument by failing to cite legal authority and references to the

       record. Ind. Appellate Rule 46(A)(8). Waiver notwithstanding, the order is not

       clearly erroneous. The joint custody agreement did not require that Mother

       communicate with Father about every doctor appointment and extra-curricular

       activity. Appellant’s App. at 30-34. Moreover, the evidence indicates that

       Mother did communicate with Father about the children’s extra-curricular

       activities. Appellee’s App. at 49-50. The trial court did not err in denying

       Father’s contempt motion.


                                       Child Support Order
[17]   Finally, Father maintains that the trial court erred in its calculation of the child

       support. A trial court’s calculation is presumptively valid, and we reverse it

       Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018   Page 12 of 14
       only if it is clearly erroneous. Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind. 2015).

       On review, we consider only evidence and reasonable inferences favorable to

       the judgment. Id.


[18]   Father contends that the trial court erred in entering a child support order

       because it “did not have the requisite information to calculate or modify child

       support.” Appellant’s Br. at 22. However, the child support order was based

       on Mother’s Exhibits 1 and 2, which contained both Mother’s and Father’s W-2

       tax forms for the year 2015, and a child support worksheet. Those exhibits

       were admitted into evidence without Father’s objection. Tr. Vol. II at 217-18.

       And Father directs us to no other evidence of income that was submitted to the

       court.2 Therefore, the evidence favorable to the judgment supports the trial

       court’s child support order. The trial court did not clearly err.



                                                  Conclusion
[19]   The trial court did not clearly err in denying the motions to modify custody and

       for contempt of court, and it did not clearly err in calculating the amount of

       child support.




       2
         We note that the trial court did order the parties to confer regarding whether the child support order should
       be modified in the future. And it noted that the parties could “schedule further proceedings” on that issue if
       they could not reach an agreement. Thus, if Father has evidence supporting a modification of the child
       support order, he may file a petition to modify child support and present his evidence to the trial court in new
       proceedings.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1712-DR-2743 | May 21, 2018               Page 13 of 14
[20]   Affirmed.


       Crone, J., and Brown, J., concur.




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