MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any
court except for the purpose of establishing                  Apr 25 2017, 9:49 am

the defense of res judicata, collateral                            CLERK
                                                               Indiana Supreme Court
estoppel, or the law of the case.                                 Court of Appeals
                                                                    and Tax Court




ATTORNEYS FOR APPELLANT
Robert J. Nice
Hayleigh J. Neumann
The Nice Law Firm, LLP
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Randy Drake,                                              April 25, 2017
Appellant,                                                Court of Appeals Case No.
                                                          27A02-1608-JP-1915
        v.                                                Appeal from the Grant Superior
                                                          Court
Jenita McMillan,                                          The Honorable Dana J.
Appellee.                                                 Kenworthy, Judge
                                                          The Honorable Brian F. McLane,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          27D02-1107-JP-507



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 1 of 15
                                                 Case Summary
[1]   Randy Drake (“Father”) appeals the trial court’s denial of his petition to modify

      custody of his child, R.M.-D. We affirm.


                                                          Issue
[2]   The sole restated issue before us is whether the trial court’s denial of Father’s

      petition to modify custody was clearly erroneous.


                                                          Facts
[3]   R.M.-D. is the child of Father and Jenita McMillan (“Mother”); he apparently

      was born in 2011.1 Father was at the time and still is married to Julie Drake

      (“Stepmother”), with whom Father has three older children. Father and

      Stepmother have been married for twenty-five years and have lived in the same

      house for over six years. Father lives and works in Kokomo and Mother lives

      and works in Marion.


[4]   After the original custody decree, Father filed a motion to modify. That motion

      resulted in an order on January 27, 2015, establishing that Father had custody

      of R.M.-D. from every Friday at noon to Monday at 6:00 p.m. and Mother had

      custody from 6:00 p.m. Monday to noon on Friday. Father works from 6:00

      a.m. to 4:30 p.m., Monday through Thursday, and Mother works from 2:00




      1
        His birthdate is not in the record before us, but the trial court’s August 8, 2016 order states that he was then
      five years old and this paternity action was initiated in July 2011.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017                  Page 2 of 15
      p.m. Saturday to 6:00 a.m. Sunday and 2:00 p.m. Sunday to 6:00 a.m. Monday.

      On March 30, 2016, Father filed another motion to modify custody of R.M.-D.

      A hearing on the matter was twice continued at Mother’s request and was

      finally held on August 1, 2016.


[5]   At the hearing, evidence was presented that in January 2016, Mother had to

      move because of a mortgage foreclosure on her previous residence and had

      moved to a rental house. Mother believed that the rental house was in a better

      location than her prior house. Mother also had the gas in her home turned off

      for approximately three weeks, which affected only the stove. Mother testified

      that she had financial difficulties prior to the foreclosure based in part on one to

      two thousand dollars in debt incurred in previous custody proceedings with

      Father; she also testified that she had financial difficulties prior to her gas being

      shut off because Father had not been paying child support. The CCS indicates

      that on December 3, 2015, Mother filed a rule to show cause why Father should

      not be held in contempt for failing to pay previously-ordered attorney fees; on

      January 11, 2016, Father paid those fees. Also, the records of the trial court

      clerk indicated that, for some reason, Mother had not received child support

      from Father after May 20, 2016 and until the date of the modification hearing.2


[6]   Additionally, Mother received three infraction charges between January and

      May 2016 for driving with a suspended license, which Mother said resulted



      2
       Father testified that he was unaware of why Mother would not have been receiving payments, which were
      supposed to be automatically withdrawn from this paycheck.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017        Page 3 of 15
      from unpaid parking tickets. Mother continued to drive R.M.-D. places while

      her license was suspended. She presented evidence at the hearing that she had

      completed and paid everything necessary to have her license reinstated. On

      May 17, 2016, Mother also was charged with Level 6 felony intimidation and

      Class B misdemeanor battery. The charges apparently were related to conduct

      against Mother’s brother’s girlfriend, but the details and ultimate disposition of

      the case is not in the record.


[7]   Mother has three other children besides R.M.-D. Her oldest son had moved

      out of the house at age seventeen to live with his father because he did not

      follow Mother’s rules and often used inappropriate language. R.M.-D.

      sometimes repeated such language as well, which Father corrected. At some

      time one of Mother’s other sons, a sixteen-year-old, was facing charges in

      juvenile court for unspecified conduct, apparently related to fraud of some kind.

      This case was resolved by the time of the modification hearing.


[8]   R.M.-D. was scheduled to start kindergarten immediately after the modification

      hearing. Father had enrolled him at an “A”-rated school in Kokomo, while

      Mother had enrolled him in a public school in Marion. Father also enrolled

      R.M.-D. in basketball and baseball youth leagues. Mother never attended any

      of his games. Mother and Father both apparently enrolled R.M.-D. in separate

      preschools and he attended both of them. Father enrolled R.M.-D. in a private

      preschool because he did not believe he was learning enough in the one Mother

      had enrolled him in, and he also disagreed with Mother not always compelling

      R.M.-D. to attend preschool. Mother disputed Father’s account of R.M.-D.’s

      Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 4 of 15
      preschool progress. Both Mother and Father testified as to the difficulties they

      have communicating regarding R.M.-D.’s care.


[9]   On August 8, 2016, the trial court entered its order denying Father’s motion to

      modify custody. It entered limited sua sponte findings with its order that read

      in part:


              5.       Since the last order:


                       a.    Mother has been evicted from her home in January,
                       2016;


                       b.    One of Mother’s children from a prior relationship
                       was arrested for charges in Juvenile Court;


                       c.     Mother has had her gas turned off. Mother’s stove
                       was the only appliance that operated on gas. Mother
                       indicates the stoppage of service was for approximately 3
                       weeks;


                       d.     Mother has pending driving offenses and criminal
                       charges. The driving offenses all center around the
                       suspension of her driver’s license. . . . Mother indicates
                       her driving privileges should be reinstated soon. Mother
                       has a pending case in Superior Court III for Intimidation
                       (Level 6 Felony) and Battery (Class B Misdemeanor).
                       This matter is still pending.


                       e.     Mother continues to drive on her suspended driver’s
                       license;




      Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 5 of 15
                        f.    Father enrolled the child to play basketball and
                        baseball. Mother never attended any of the games. Father
                        contends Mother received copies of the game schedule, but
                        Mother disputes ever receiving the schedule;


                        g.    The parties continue to have no communication
                        between them;


                                                     *****


                        i.     Father continues to be married to his wife of 20+
                        years. The child has a good relationship with his step-
                        mother.


               6.      Both parents desire to register the child for kindergarten in
               their own community. Although Mother has continued to
               demonstrate a significant degree of instability in her life,
               awarding Father custody of the child with a standard parenting
               time order would leave Mother with practically no time with the
               child given her work schedule. Further, given the absolute
               breakdown of communication between the parties, there is no
               indication that the parties would work out a mutually agreeable
               schedule absent court intervention. Accordingly, the court finds
               that it is in the child’s best interests that the prior custody order
               remain in place. . . .


       App. pp. 11-12. Father now appeals.


                                                    Analysis
[10]   The trial court’s findings in this case were entered sua sponte. “In such a case,

       the specific findings control only with respect to issues they cover, and a general

       judgment standard applies to issues outside the findings.” Montgomery v.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 6 of 15
       Montgomery, 59 N.E.3d 343, 349 (Ind. Ct. App. 2016), trans. denied. We will set

       aside the trial court’s findings or judgment only if they are clearly erroneous.

       Id. “A finding is clearly erroneous only if there are no facts or inferences drawn

       therefrom to support it.” Id. Additionally, “[w]e may affirm a general

       judgment with sua sponte findings upon any legal theory supported by the

       evidence introduced at trial.” Stone v. Stone, 991 N.E.2d 992, 998 (Ind. Ct. App.

       2013). Sua sponte findings control as to the issues upon which the court has

       found, but they do not otherwise affect our general judgment standard of

       review, “and we may look both to other findings and beyond the findings to the

       evidence of record to determine if the result is against the facts and

       circumstances before the court.” Id.


[11]   We grant “‘latitude and deference to our trial judges in family law matters.’”

       Steele–Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of

       Richardson, 622 N.E.2d 178 (Ind. 1993)). “Appellate courts ‘are in a poor

       position to look at a cold transcript of the record, and conclude that the trial

       judge, who saw the witnesses, observed their demeanor, and scrutinized their

       testimony as it came from the witness stand, did not properly understand the

       significance of the evidence.’” Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307

       (Ind. 2002)). “In order to reverse a trial court’s ruling, it is not enough that the

       evidence might have supported a different conclusion.” Montgomery, 59 N.E.3d

       at 350. Rather, the evidence must positively require the conclusion contended

       for by appellant before we may reverse. Id. We may not reweigh the evidence

       or reassess witness credibility, and must view the evidence in a light most

       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 7 of 15
       favorable to the judgment. Id. Although we must be highly deferential to trial

       courts in custody cases, that deference is not absolute and reversal is possible.

       Id.


[12]   Pursuant to Indiana Code Section 31-14-3-6, a trial court in a paternity

       proceeding may not modify a child custody order unless a noncustodial parent

       shows both that modification is in the best interest of the child, and there has

       been a substantial change in one or more of the factors listed under Indiana

       Code Section 31-14-13-2.3 Those factors are:


                (1)      The age and sex of the child.


                (2)      The wishes of the child’s 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 parents;


                         (B) the child’s sibling; and




       3
        In his brief, Father cites the statutes governing child custody following marital dissolution, Indiana Code
       Secctions 31-17-2-8 and 31-17-2-21. The substance of these provisions is nearly identical to those governing
       paternity proceedings.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017             Page 8 of 15
                        (C) any other person who may significantly affect the
                        child’s best interests.


               (5) The child’s adjustment to the child’s home, school, and
               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, and if the evidence is sufficient, the court shall
               consider the factors described in section 2.5(b) of this chapter.


[13]   “A parent seeking modification of custody bears the burden of proving that the

       existing custody order should be altered.” Montgomery, 59 N.E.3d at 350.

       “Indeed, this ‘more stringent standard’ is required to support a change in

       custody, as opposed to an initial custody determination where there is no

       presumption for either parent because ‘permanence and stability are considered

       best for the welfare and happiness of the child.’” Steele-Giri, 51 N.E.3d at 124

       (quoting Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)). We further note that

       when reviewing the denial of a motion to modify custody, as opposed to the

       granting of such a motion, the appellant is appealing from a negative judgment.

       Riggen v. Riggen, No. 67A04-1606-DR-1312, slip op. p. 4 (Ind. Ct. App. March

       3, 2017). We will not reverse such a judgment unless the evidence leads to but

       one conclusion and the trial court reached the opposite conclusion. Id. at 5.



       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 9 of 15
[14]   “When evaluating whether a change of circumstances has occurred that is

       substantial enough to warrant a modification of custody, the context of the

       whole environment must be judged . . . .” Montgomery, 59 N.E.3d at 350.

       “‘[T]he effect on the child is what renders a change substantial or

       inconsequential.’” In re Marriage of Sutton, 16 N.E.3d 481, 485 (Ind. Ct. App.

       2014) (quoting Jarrell v. Jarrell, 5 N.E.3d 1186, 1193 (Ind. Ct. App. 2014), trans.

       denied). “‘If one parent can demonstrate that the other has committed

       misconduct so egregious that it places a child’s mental and physical welfare at

       stake, the trial court may modify the custody order.’” Maddux v. Maddux, 40

       N.E.3d 971, 979 (Ind. Ct. App. 2015) (quoting Hanson v. Spolnik, 685 N.E.2d

       71, 78 (Ind. Ct. App. 1997), trans. denied). In a custody modification

       proceeding, the trial court’s consideration generally should be limited to

       evidence on matters occurring after the last custody proceeding between the

       parties. See Ind. Code § 31-14-3-9.


[15]   We also note that Mother did not file an appellee’s brief. “When an appellee

       fails to submit a brief, we do not undertake the burden of developing appellee’s

       arguments, and we apply a less stringent standard of review, that is, we may

       reverse if the appellant establishes prima facie error.” Meisberger v. Bishop, 15

       N.E.3d 653, 656 (Ind. Ct. App. 2014). This rule relieves us of the burden of

       controverting arguments advanced in favor of reversal, which properly rests

       with the appellee. Id. Prima facie error is error at first sight, on first

       appearance, or on the face of it. J.K. v. T.C., 25 N.E.3d 179, 181 (Ind. Ct. App.

       2015). Still, we are obligated to correctly apply the law to the facts in the record

       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 10 of 15
       to determine whether reversal is required. Tisdale v. Bolick, 978 N.E.2d 30, 34

       (Ind. Ct. App. 2012). We also must keep in mind that decisions about

       parenting time require us to give foremost consideration to the child’s best

       interests. Meisberger, 15 N.E.3d at 656.


[16]   Much of Father’s argument is based on findings the trial court did not expressly

       make. He contends the trial court failed to consider the required statutory

       factors for a custody modification, including R.M.-D.’s relationships with his

       parents and siblings, his adjustment to home, school, and community, and

       Mother’s mental health as reflected by her run-ins with law enforcement.

       However, we emphasize that the trial court’s findings here were entered sua

       sponte. It was under no obligation to enter findings that comprehensively

       applied the evidence in the record to the statutory modification factors. And,

       we may affirm the trial court’s judgment based on the record as a whole and

       may look beyond its findings to do so.


[17]   The trial court’s findings acknowledge that Mother has had her difficulties. It is

       troubling that Mother repeatedly was ticketed for driving with a suspended

       license and admittedly continued driving R.M.-D. places with a suspended

       license. However, the only evidence in the record as to why Mother’s license

       was suspended was because of a failure to pay parking tickets. She was not

       driving while intoxicated or recklessly; in other words, there is no evidence she

       was directly endangering R.M.-D. by engaging in this conduct. The same is

       true of her pending charges for intimidation and battery, which was alleged to

       be committed against her brother’s girlfriend. These charges were unresolved at

       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 11 of 15
       the time of the modification hearing and there was no evidence as to how they

       impacted R.M.-D. or whether the incident took place in front of him.


[18]   Father also directs us to the evidence regarding two of Mother’s older children.

       One of the children moved out of the house before graduating from high school

       because he did not want to comply with Mother’s rules and used inappropriate

       language, some of which R.M.-D. began using. The other child was arrested

       and was involved with juvenile court for unspecified conduct, but which

       Mother described as concerning fraud. This evidence may indicate that

       Mother’s older children could be incorrigible, and may reflect on her parenting,

       but again, aside from some questionable language from R.M.-D., it is unclear

       that the behavior of Mother’s older sons was so damaging that R.M.-D.’s

       mental or physical health was endangered or that a change of custody was

       mandated.


[19]   There also was evidence presented regarding R.M.-D.’s pre-schooling and

       participation in sports, with Father contending R.M.-D. did better in a

       preschool Father enrolled him in and that Mother was not supportive of the

       sports, given her failure to attend any games. Mother contested Father’s

       description of R.M.-D.’s academic progress, or lack thereof, in the preschool

       she enrolled him in as opposed to Father’s; in any case, we are not convinced

       that questionable progress while in preschool should be a basis for modifying

       child custody. The same can be said for Mother not insisting that R.M.-D.

       attend every day of preschool. As for Mother’s non-support of R.M.-D.’s

       athletics, again it is unclear what a change of custody would alter in that

       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 12 of 15
       respect, and the emphasis to be placed on a child’s athletics is a matter upon

       which reasonable parental minds could differ. If anything, the fact that Father

       is able to encourage and arrange R.M.-D.’s participation in athletics under the

       current custody arrangement is an indication that it need not be changed at this

       time.


[20]   Evidence also was presented regarding Mother having to move in January 2016

       after foreclosure on her house, and having her gas utility service shut off for

       about three weeks. Mother testified that in part, her financial difficulties

       stemmed from prior custody disputes with Father and an interruption in child

       support payments from Father in the summer of 2016. Regardless of the cause,

       Mother also testified that her new rental residence was in a better location than

       the previous residence; there is no evidence Mother has been homeless and no

       evidence that the present residence is inadequate for raising a child.

       Additionally, the interruption in gas service was not extremely detrimental,

       given that it only affected Mother’s stove. There is a lack of evidence that R.-

       M.D. was significantly negatively impacted by Mother’s move from one

       residence to another or the temporary cessation of gas service to the home.


[21]   More generally, Mother’s alleged “instability” does not appear to be a new

       phenomenon, nor does Father’s questioning of her raising of her other children.

       During closing argument, counsel for Father stated in part:

               I have [a] client that has raised three children successfully, they
               have been athletic, they have been scholar [sic], you met them all
               last time and saw what he and his wife have done in their

       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 13 of 15
               household. Again avoiding political correctness her children are
               thugs. They have been in this Courtroom, you heard about
               what’s still going on with the, she told us they are being pulled
               away for, by the police from her household. This is the
               environment that [R.M.-D.] is in, it is a sess [sic] pool, it is an
               unstable environment. . . . [Habit for] humanity gives them a
               house with a minimum payment and they can’t stay there,
               they’ve been foreclose [sic] out of that, you don’t hear about that
               too often but that’s what happened here. Utilities where shut off
               before we talked about that last time and its happened again.


       Tr. pp. 110-11. “[A] petition to modify is not a vehicle to relitigate the initial

       custody determination as to who might make the better parent.” Dwyer v.

       Wynkoop, 684 N.E.2d 245, 249 (Ind. Ct. App. 1997), trans. denied. In large part,

       that appears to be what Father has attempted to do here.


[22]   Finally, we address Father’s contention that it was improper for the trial court

       to find that a modification of custody could result in very limited parenting time

       for Mother, given her current work schedule. We cannot dismiss this as an

       improper consideration. There was little evidence presented as to Mother’s

       ability to change her work schedule, which required her to work for most of

       every weekend. A modification of custody as sought by Father necessarily

       would limit Mother’s parenting time to weekends. “[N]ot only does a

       noncustodial parent have a presumed right of parenting time, but the child has

       the correlative right to receive parenting time because it is presumed to be in the

       child’s best interest.” Perkinson v. Perkinson, 989 N.E.2d 758, 764 (Ind. 2013). A

       change in custody that would severely limit Mother’s parenting time



       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 14 of 15
       presumably would not be in R.M.-D.’s best interests and the trial court did not

       err in noting that fact.


[23]   This is a case in which, admittedly, the evidence conceivably could have

       supported a different result. But that is not enough to compel reversal on

       appeal, particularly given that Father had the burden of demonstrating the

       necessity of a modification of custody. In the absence of compelling evidence

       that R.M.-D. currently is endangered by being in Mother’s primary custody, we

       decline to substitute our judgment for that of the trial court in such a highly

       fact-sensitive matter.


                                                 Conclusion
[24]   The trial court’s denial of Father’s petition to modify custody was not clearly

       erroneous. We affirm.


[25]   Affirmed.


       Kirsch, J., concurs.


       Robb, J., concurs in result without opinion.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1608-JP-1915| April 25, 2017   Page 15 of 15
