MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jul 15 2019, 7:58 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Cassandra A. Kruse                                       Alexandra M. Curlin
Emswiller, Williams, Noland &                            Curlin & Clay Law Assn. of Attys.
Clarke, LLC                                              Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ashley M. Obando (Coffey),                               July 15, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-DC-534
        v.                                               Appeal from the Marion Superior
                                                         Court
Michael A. Coffey,                                       The Honorable James A. Joven,
Appellee-Respondent                                      Judge
                                                         The Honorable Kimberly D.
                                                         Mattingly, Magistrate
                                                         Trial Court Cause No.
                                                         49D13-1709-DC-33633



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019                           Page 1 of 5
[1]   Ashley Obando (Mother) and Michael Coffey (Father) share custody of their

      two children. Mother appeals the trial court’s order denying her petition to

      modify custody, arguing that the trial court erred by finding that Mother did not

      meet her burden of showing a substantial and continuing change in

      circumstances to warrant a custody modification. Mother also argues that the

      trial court erred in its allocation of expenses for a custody and parenting time

      evaluation and by not finding Father in contempt of court. However, Mother

      failed to submit a complete record on appeal, and as a result, we cannot say that

      the trial court erred in its findings or in its allocation of expenses. Accordingly,

      we affirm.


[2]   In 2013, Mother and Father dissolved their marriage in Hawaii. The parties

      were awarded joint legal custody and Father was awarded physical custody. In

      2015, Mother filed a petition to modify custody in Missouri; she was awarded

      temporary physical custody of the children while Father was deployed on active

      duty with the Marines Corps. At some point, Mother moved to Indiana.

      Father returned from deployment and resides in North Carolina, where he is

      stationed. In 2017, this matter was transferred to Indiana under the Uniform

      Child Custody Jurisdiction and Enforcement Act.1


[3]   On October 24, 2017, the trial court ordered Mother and Father to undergo a

      custody and parenting time evaluation with a psychologist; the trial court




      1
          Ind. Code ch. 31-21-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019   Page 2 of 5
      ordered Mother to pay the psychologist’s fees. On November 30, 2017, Mother

      filed an emergency motion for temporary modification of custody and

      parenting time and motion for rule to show cause. On February 5, 2018,

      Mother filed a motion for rule to show cause and to compel regarding Father’s

      compliance with the custody and parenting time evaluation. The following

      day, Father filed a motion to reconsider, requesting that the trial court order

      Mother to pay his travel costs associated with the evaluation and a motion in

      response to Mother’s motion for rule to show cause and compel. On February

      12, 2018, the trial court ordered Mother to pay for Father’s travel costs

      associated with the evaluation. A hearing took place on August 27 and

      November 5, 2018. On March 13, 2019, the trial court denied Mother’s

      petition to modify custody.2 Mother now appeals.


[4]   Father argues that Mother has waived her right to appellate review by failing to

      submit the transcript of the hearings. Although we strongly prefer to decide a

      custody case on the merits, here, we are compelled to agree that, because of the

      incomplete record, we are unable to review the issues on the merits and they

      are, therefore, waived.


[5]   Indiana Appellate Rule 9 governs the initiation of an appeal. Rule 9(F)(5)

      mandates a notice of an appeal to include a request for a transcript.

      Specifically, the rule requires




      2
          The record on appeal includes only the e-notice of the order, not the official order.


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019                Page 3 of 5
               [a] designation of all portions of the Transcript necessary to
               present fairly and decide the issues on appeal. If the appellant
               intends to urge on appeal that a finding of fact or conclusion
               thereon is unsupported by the evidence or is contrary to the
               evidence, the Notice of Appeal shall request a Transcript of all the
               evidence.


      App. R. 9(F)(5) (emphasis added).


[6]   Mother’s arguments depend upon the evidence presented during the hearing,

      yet she did not include the transcript of the hearing in the appellate record.3

      Our Supreme Court has stated that “failure to include a transcript works a

      waiver of any specifications of error which depend upon the evidence.” See In

      re Walker, 665 N.E.2d 586, 588 (Ind. 1996). Further, “the dismissal of an

      appeal is proper where an appellant fails to file a record demonstrating any of

      the errors alleged in the appeal.” Id. at 589 n.2. We have no choice but to find

      that Mother has waived these issues on appeal.


[7]   We urge Mother’s counsel to review the appellant’s burden on appeal. In her

      reply brief, Mother asserts several times that Father was able to request a

      transcript and that the appellate rules “do not place a singular requirement that

      an appellant request an entire transcript as a prerequisite to bring issues before

      the Court on appeal.” Reply Br. p. 5. But Mother, not Father, is the appellant




      3
       On June 4, 2019, after the filing of the briefs, the Clerk of this Court requested the transcript be submitted
      within ten business days. Mother did not submit a transcript.
      Additionally, Mother relies on the fact that she included her exhibits in the record on appeal, but without the
      transcript of the hearing, we cannot contextualize these exhibits within this case.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019                          Page 4 of 5
      in this case, and “[i]t is a cardinal rule of appellate review that the appellant

      bears the burden of showing reversible error by the record, as all presumptions

      are in favor of the trial court’s judgment.” Marion-Adams Sch. Corp. v. Boone,

      840 N.E.2d 462, 468 (Ind. Ct. App. 2006) (emphasis added). By not including

      the transcript in the appellate record, Mother is unable to meet her burden of

      showing reversible error in the record. Accordingly, we cannot find that the

      trial court committed any error.


[8]   The judgment of the trial court is affirmed.


      Najam, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-534 | July 15, 2019   Page 5 of 5
