FOR PUBLICATION



ATTORNEY FOR APPELLANT:                     ATTORNEY FOR APPELLEE:

CARL PAUL LAMB                              KENDRA G. GJERDINGEN
Carl Lamb and Associates                    Mallor Grodner LLP
Bloomington, Indiana                        Bloomington, Indiana

                                                                  FILED
                                                                Mar 19 2012, 8:57 am


                                                                       CLERK
                           IN THE                                    of the supreme court,
                                                                     court of appeals and
                                                                            tax court

                 COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF C.S.: M.R. (Mother), )
                                            )
       Appellant,                           )
                                            )
               vs.                          )     No. 53A01-1108-JP-381
                                            )
R.S. (Father),                              )
                                            )
       Appellee.                            )


                   APPEAL FROM THE MONROE CIRCUIT COURT
                       The Honorable Stephen R. Galvin, Judge
                           Cause No. 53C07-0804-JP-461


                                 March 19, 2012

                           OPINION – FOR PUBLICATION


DARDEN, Judge
                              STATEMENT OF THE CASE

       M.R. (“Mother”) appeals the trial court’s order granting a petition for modification

of custody filed by R.S. (“Father”).

       We affirm.

                                         ISSUES

       I.     Whether the trial court abused its discretion in finding that a
              substantial change in circumstances warranted modification of
              custody.

       II.    Whether the trial court’s order contravened Indiana Code section 31-
              17-2-8.

       III.   Whether the trial court erred in relying on an updated custody
              evaluation.

                                         FACTS

       Mother and Father were involved in a dating relationship from 2004 through 2008.

During the early part of the relationship, Mother was stationed at Fort Lewis,

Washington, in the Active Army Reserves, while Father was stationed in Seattle with the

Navy. Mother and Father began cohabiting in February of 2005. When Father obtained

a job at the Crane Naval Surface Warfare Facility in Bloomington, Indiana, Mother and

Father moved to the Bloomington area, where they continued their cohabitation.

       On February 13, 2006, Mother and Father’s son, C.S., was born. When C.S. was

six months old, Mother began attending Indiana University while on inactive status.

However, in 2007, Mother re-enlisted in the Army Reserves, and when C.S. was three

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years old, Mother was deployed to Iraq. Before Mother left for Iraq, Mother and Father’s

relationship ended.

        Upon her return from Iraq to the Bloomington area, Mother continued as a student

at Indiana University on inactive duty, while Father continued to work for Crane. On

July 27, 2009, Mother and Father entered into an agreed entry, approved by the trial

court, to share joint legal custody and equal physical custody of C.S.

        After graduating from Indiana University, Mother took a position at Fort Knox,

Kentucky, as an Army Reserve Career Counselor on active reserve duty. On May 17,

2010, Mother filed a notice of intent to relocate from Bloomington, Indiana, to the Fort

Knox, Kentucky area. In the notice, Mother requested that C.S. be relocated with her and

that the existing parenting time schedule continue until C.S. started school. Both Mother

and Father acknowledged that C.S. would begin school during the fall semester of 2011.

In response to Mother’s notice of intent, Father requested primary physical custody of

C.S.

        On January 14, 2011, the trial court issued an order which essentially continued

the arrangements set forth in the prior agreed entry. 1 The trial court partially based its

determination on a court-ordered custody evaluation performed by Dr. Laurence Barnhill.




1
 The trial court also ruled that Father would become C.S.’s primary custodian when he began school in
2011. However, after Mother filed a motion to correct error, this portion of the trial court’s original order
was deleted from the May 4, 2011 amended order.
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       On July 1, 2011, Father filed a petition to modify custody. In the petition, Father

alleged that a substantial change in circumstances had occurred because C.S. was “set to

begin kindergarten in August, 2011.” (Mother’s App. 80). Father also alleged that he did

not believe “that the joint custody arrangement can continue given the distance between

the parties’ homes, approximately two and one-half hours.” Id. Father requested that he

be awarded primary physical custody of C.S.

       On July 7, 2011, the trial court held a hearing on Father’s petition. The trial court

granted Father’s petition and ordered that Father would exercise primary physical

custody so that C.S. could begin kindergarten at the beginning of the 2011-12 school

year. Pursuant to Father’s request, the trial court issued findings of fact and conclusions

of law in support of its order. In pertinent part, the trial court found:

       7.     [C.S.] is 5 ½ years old. He has been actively involved in preschool
              in Bloomington, Indiana, and Fort Knox, Kentucky. Both preschool
              programs have a significant educational component. [C.S.] has done
              well in both preschools.

       8.     Mother and Father agree that [C.S.] is ready to begin kindergarten.
              Mother specifically testified that [C.S.] has done very well in his
              preschool at Fort Knox and that he is “more than ready for
              kindergarten.” [C.S.] is looking forward to attending kindergarten.

       9.     In spite of [C.S.’s] readiness to begin kindergarten, Mother now
              asserts the following: (1) he should not be started in kindergarten
              for another year and that the current custody arrangement should be
              maintained until [C.S.] is seven years old; or (2) he should begin
              kindergarten in both Kentucky and Indiana on alternating weeks and
              the current custody arrangement should be maintained; or (3) if
              custody is modified, she should have primary physical custody.

                                               4
10.   Father and Mother are both exemplary parents. [C.S.] would thrive
      in either of their homes.

11.   Father lives in a home in Bloomington that he purchased in 2005.
      [C.S.] has his own room. The home has a yard with a garden. [C.S.]
      has friends in the neighborhood.

12.   Father has many friends in and near Bloomington. Many have
      known [C.S.] since his birth. Some have children with whom [C.S.]
      is very close. Father and [C.S.] often spend time with these friends.
      [C.S.] is very close to, and comfortable with, Father’s group of
      friends.

13.   Father has a girlfriend, [F.B.], who also lives and works in
      Bloomington. [F.B.]’s parents live in nearby Greene County. [C.S.]
      knows [F.B.] and her parents well and enjoys spending time with
      them. [F.B.] has given [C.S.] horseback riding lessons and she has
      camped and gone on vacation with Father and [C.S.].

14.   Father works Monday through Friday at Crane Naval Surface
      Warfare Center. Crane is located approximately 45 minutes from his
      home. He is required to work eight and a half hours per day and he
      can begin his work day between 6:00 a.m. and 9:00 a.m. His
      schedule is extremely flexible. Father is able to take off work when
      necessary to take [C.S.] to appointments or to stay home with him
      when he is sick. Any overtime by Father is voluntary. Father is
      employed by the Department of Defense. He has held the same
      position for six years, initially as a contract employee and as a
      federal employee for the past year. Father’s position is stable.

15.   Father and [C.S.] enjoy many outdoor activities, including camping,
      sailing, and gardening.

16.   Father and Mother chose Bloomington as the place they wished to
      live long [before] [C.S.’s] birth. [C.S.] was born in Bloomington,
      Indiana. He has lived in Bloomington throughout his life. Since
      2009, he has split time between his Father’s and Mother’s homes.




                                    5
      17.    In May, 2010, Mother re-enlisted for another three year term with
             the United States Army Reserve. Shortly thereafter, she moved to
             Fort Knox, Kentucky.

      18.    Mother currently works at the Fort Knox base located approximately
             25 miles outside of Louisville, Kentucky. Her current enlistment is
             as an Active Guard Reserve.            Mother’s current Military
             Occupational Specialty (MOS) is Army Reserve Career Counselor.
             This is a non-deployable position. She works Monday through
             Friday on the base located approximately 30 minutes from her home.
             She also works at least one weekend each month. The weekend is
             not the same each month. Mother also has other trainings out of
             state each year.

      ****

      21.    Dr. Laurence Barnhill prepared an initial custody evaluation on
             August 24, 2010. He prepared an Updated Custody Evaluation, as
             ordered by the Court, dated June 27, 2011.         Dr. Barnhill
             recommends that Father be granted primary physical custody of
             [C.S.].

(Mother’s App. 84-86).

      After quoting statutes governing modification of custody, the trial court concluded

among other things that C.S.’s age and academic needs established a substantial change

in circumstances supporting modification. The trial court also concluded that beginning

kindergarten in 2011 is in C.S.’s best interests. The trial court further concluded that

Mother’s plan of having C.S. alternate weeks at different schools was impractical. In

addition, the trial court concluded that “Mother’s proposals are not based on the child’s

best interests. Rather, they are intended to maximize her contact with C.S., even at the




                                           6
expense of the child’s stability.” (Mother’s App. 91). Finally, the trial court concluded

that Father should have primary custody of C.S.

                                        DECISION

       When reviewing a custody determination, we afford the trial court considerable

deference as it is the trial court that observes the parties’ conduct and demeanor and hears

their testimonies. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945-46 (Ind. Ct. App.

2006). 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) (quoting K.I. ex rel. J.I. v. J.H., 903

N.E.2d 453, 457 (Ind. 2009)), trans. denied. We will not reweigh the evidence or judge

the credibility of witnesses. Kondamuri, 852 N.E.2d at 946. Rather, we will reverse the

trial court’s custody determination based only upon a trial court’s abuse of discretion that

is “clearly against the logic and effect of the facts and circumstances or the reasonable

inferences drawn therefrom.” Id. “[I]t is not enough that the evidence might support

some other conclusion, but it must positively require the conclusion contended for by the

appellant before there is a basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.

2002) (quoting Brickley v. Brickley, 247 Ind. 201, 210 N.E.2d 850, 852 (1965)).

       When the trial court enters special findings of fact and conclusions based on those

findings pursuant to Indiana Trial Rule 52(A), we apply a two-tiered standard of review:

whether the evidence supports the findings and whether the findings support the order.

                                             7
Tompa v. Tompa, 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). To determine whether the

findings or judgment are clearly erroneous, we consider only the evidence favorable to

the judgment and all reasonable inferences flowing therefrom. Kondamuri, 852 N.E.2d at

944.

1.      Substantial Change

        Mother contends that the trial court abused its discretion in concluding that C.S.

was of a physical and mental age where readiness for kindergarten was a substantial

change in circumstances that warranted modification of the custody order. Mother argues

that there is no Indiana case law that “supports the proposition that the mere fact of a

child being eligible to attend school, but not yet attending school, is a change so

substantial as to warrant modification of custody.” Mother’s Br. at 24. Mother further

argues that no substantial change has taken place because “school attendance in Indiana

is not mandatory until age 7.” Mother’s Br. at 24 (citing Ind. Code § 20-33-2-8).

        Under Indiana Code section 31-14-13-6, a trial court may modify a child custody

order in a paternity action if (1) the modification is in the best interests of the child; and

(2) there is a substantial change in one or more of the factors that the court may consider

under Indiana Code section 31-14-13-2.2 These factors include (1) the age and sex of the

child; (2) the wishes of the child’s parent or parents; (3) the interaction and

2
  Both the parties and the trial court cite Ind. Code § § 31-17-2-21 and 31-17-2-8. These statutes apply to
modification of custody in dissolution actions. Custody modifications in paternity actions are governed
by Article 14 of Title 31. Although the parties’ and the trial court’s citations to Article 17 are incorrect,
the trial court’s decision is unaffected as the legal standards included in Article 14 are, in pertinent part,
identical to those in Article 17.
                                                      8
interrelationship of the child with his parent or parents and any other person who may

significantly affect the child’s best interests; and (4) the child’s adjustment to the child’s

home, school, and community.

       Here, the trial court found that originally it was the wish of both Mother and

Father that C.S. begin kindergarten in 2011. Although Mother changed her mind as the

time for modification approached, it is clear from her testimony that she recognizes that

C.S. has reached the age and experience level where he is ready to make the transition

from his pre-kindergarten programs to kindergarten. Indeed, she testified that “he’s more

than ready for kindergarten. I mean, he’s excelled at all the tests he’s been given . . . .”

(Tr. 212). Furthermore, Mother expressed no reservation about C.S.’s emotional or

developmental ability to adapt to kindergarten. Mother and Father made commendable

efforts to put C.S. in pre-kindergarten programs that prepared him to enter kindergarten

in 2011. Although Indiana law allows C.S. to wait another year to enter school, there is

no reason for him to repeat the pre-kindergarten programs he has already mastered. In

short, C.S.’s academic needs and abilities have substantially changed, and he has reached

an age and developmental stage that warrants a change in physical custody. Also, as the

trial court concludes, such a change is clearly in C.S.’s best interests.

2.     Indiana Code section 31-17-2-21.3

       Mother contends that the trial court erred by considering factors directly related to




                                               9
her relocation as result of her active duty military service.3 Mother cites Indiana Code
section 31-17-2-21.3 in support of her contention.

        Indiana Code section 31-17-2-21.3 provides:

        (a) A court may not consider a parent’s absence or relocation due to active
        duty service as a factor in determining custody or permanently modifying a
        child custody order.

        (b) If a court temporarily modifies a custody order due to a parent’s active
        duty service, the order temporarily modifying the custody order terminates
        automatically not later than ten (10) days after the date the parent notifies
        the temporary custodian in writing that the parent has returned from active
        duty service. This subsection does not prevent a court from modifying a
        child custody order as provided under this article after a parent returns from
        active duty service.

        Generally, “in construing a statute we will only interpret a statute that is

ambiguous.” Comm’r of Labor v. An Island, LLC, 948 N.E.2d 1189, 1191 (Ind. Ct. App.

2011) (quoting In re Estate of Inlow, 735 N.E.2d 240, 251 (Ind. Ct. App. 2000)), trans.

denied. We may not interpret the meaning of a statute that is clear and unambiguous on

its face.    Id.    A statute is ambiguous when it is susceptible to more than one

interpretation. Id. When a statute is ambiguous, we are compelled to ascertain and

execute legislative intent and to interpret the statute in such a manner as to prevent

absurdity. Id. Further, in interpreting the statute, we will read the statute as a whole,

attempting to give effect to all provisions so that no section is held meaningless if it can

be reconciled with the rest of the statute. Id.
3
  “Active duty” means full-time service in the armed forces of the United States (as defined in Indiana
Code section 5-9-4-3) for a period that exceeds thirty consecutive days in a calendar year. Indiana Code
section 5-9-4-3 provides that “armed forces of the United States” means the “active or reserve
components” of the army and other military organizations.
                                                  10
       In concluding that this statute did not apply to Mother, the trial court stated as

follows:

      IC 31-17-2-21.3 does not prohibit modification of custody. Rather, it
      protects a citizen-soldier from losing custody of their child based on their
      absence from their child’s life while they are serving their country. This
      section is meant to serve as a shield. Mother is attempting to use it as a
      sword. Mother is not absent from the child’s life at this time. By her own
      admission, she is available to act as the primary custodial parent for the
      child. She has a safe, stable job. She cannot be deployed. Mother is
      attempting to utilize the statute to exercise a veto power over any custody
      modification, even when the modification is in her child’s best interests.
      Mother’s interpretation would render the statute absurd.
(Mother’s App. 92).

       A reading of the statute in its entirety supports the trial court’s conclusion.

Section (a) generally prevents the trial court from making a determination of custody or

permanent modification of a custody order while a parent is on active duty service.

Section (b), however, contemplates impermanency of such service by referring to the

return of the parent from active duty service.

       Here, Mother chose to reactivate her active duty service to take a job as a career

counselor because it provided better pay and benefits than the private sector.       She

testified that she was “very confident [she would] remain in Fort Knox for some time to

come.” (Tr. 204). She also testified that her location would be changed “only by [her]

own request.”    (Tr. 141).    In addition, Mother testified that her position is “non-




                                             11
deployable,” meaning that she cannot be deployed to a combat zone. Thus, her service

does not demonstrate the impermanency contemplated by the statute.4

        Even if we accept Mother’s contention that the statute prevented the trial court

from considering the effects of relocation, we do not conclude that the trial court

committed reversible error. The trial court specifically found that Father’s flexible work

schedule allowed him more freedom to make adjustments necessitated by C.S.’s

education or health needs. The trial court also found that Mother’s job includes some

weekend duties and occasional travel. The trial court further found that Father has a

more extensive support system in place. These findings, standing alone, are sufficient to

support modification.

3.      Updated Custody Evaluation

        Mother contends that the trial court erred in considering Dr. Barnhill’s updated

custody evaluation. She argues that the updated evaluation was based upon three-hour

telephone conversations with Father and Mother that added no value to the original

evaluation.




4
  Father argues that the statute applies only when a parent is “deployed or transferred to a station where
dependents cannot follow [or where] that parent is unable to provide care for a child in his or her custody
during that time.” Father’s Br. at 11. Some states have explicitly stated this qualifier. See e.g., Ga. Code
Ann. § 19-9-3(i) (stating that no final order of modification may be entered earlier than ninety days after
the end of parent’s deployment, where “deployment” is defined by Ga. Code Ann. § 19-9-6(2) to mean
“military service . . . for which a parent is required to report unaccompanied by family members”). We
need not address this portion of Father’s argument, and we leave the issue for another day.

                                                    12
       We first note that Mother has not shown that she objected to the trial court’s use of

the evaluation. A party cannot raise an issue for the first time on appeal. Carr v.

Pearman, 860 N.E.2d 863, 871 n.3 (Ind. Ct. App. 2007), trans. denied. Therefore, the

issue is waived. Id.

       Waiver notwithstanding, Mother cannot prevail. She is asking us to reweigh the

evidence, which we cannot do. Kondamuri, 852 N.E.2d at 946.

                                     CONCLUSION

       The trial court did not abuse its discretion in finding that C.S.’s physical and

mental/academic maturation constituted a substantial change warranting modification of

custody. The trial court did not misinterpret Indiana Code section 31-17-2-8 in the

process of drawing conclusions from its findings. Finally, the trial court did not err in

relying on the updated custody evaluation.

       Affirmed.

BAKER, J., and BAILEY, J., concur.




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