MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Oct 09 2019, 8:47 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT
Linda L. Harris
Kentland, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Paternity of C.D.                               October 9, 2019

Courtney Barber,                                          Court of Appeals Case No.
                                                          19A-JP-665
Appellant-Defendant,
                                                          Appeal from the
        v.                                                Benton Circuit Court
                                                          The Honorable
Mitchell Dorsey,                                          Rex W. Kepner, Judge
                                                          Trial Court Cause No.
Appellee-Plaintiff
                                                          04C01-1808-JP-000056



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JP-665 | October 9, 2019                   Page 1 of 8
                                           Case Summary
[1]   Courtney Barber (“Mother”) appeals the trial court’s order awarding primary

      physical custody of C.D. (“Child”) to Mitchell Dorsey (“Father”). Finding that

      the evidence supports the trial court’s decision, we affirm.



                            Facts and Procedural History
[2]   Mother is from Athens, Georgia, and Father is from Fowler, Indiana. Mother

      and Father (collectively, “Parents”) met at a go-kart race in Tennessee in 2014.

      Soon after, Mother moved from Georgia to Indiana to pursue a relationship

      with Father. In January 2015, about a year after Mother moved to Indiana,

      Child was born. Parents were never married, and Father’s paternity of Child

      was established by signing a paternity affidavit at Child’s birth.


[3]   Mother stayed home with Child for the first year of his life while Father worked

      at his grandfather’s hardware store. After that, Mother began working part-

      time for BP and Dollar General. At some point, Mother quit working for BP

      and Dollar General and went to work at IGA, a local grocery store, because it

      “had a little bit of a better pay.” Tr. p. 96. However, the family still struggled,

      and one time, Mother and Child had to go stay with her parents in Georgia

      because their house had no electricity. Mother borrowed money from her

      father to get the electricity turned back on and returned to Indiana two weeks

      later. When she returned, Mother got a job at a family-medicine practice in

      Lafayette. Then, in May 2018, Mother sent Father a text message saying that


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-665 | October 9, 2019   Page 2 of 8
      she was going to move back to Georgia with Child. Father thought Mother

      was being dramatic until she told him that she and Child were in Kentucky.


[4]   In August 2018, while Mother and Child were in Georgia, Father filed a

      petition to establish legal and physical custody as well as child support. A

      hearing on Father’s petition was held in February 2019. At the beginning of the

      hearing, Parents informed the trial court that they had agreed to share joint

      legal custody of Child, that Mother would claim Child on taxes for even years

      and Father would claim Child on odd years, and that they would meet in

      Portland, Tennessee, to exchange Child for whatever parenting time the court

      decided upon. See Tr. pp. 6-7. The trial court accepted those agreements and

      then proceeded to hear evidence regarding physical custody of Child.


[5]   Father testified that he has lived in the same house in Fowler, which was

      previously owned by his parents, his entire life. See id. at 18. Father said that

      he works from 8 a.m. to 5 p.m. at Kirby Risk, an electrical-supply distributor,

      and has been with the company for two-and-a-half years. See id. at 18, 21.

      Father alleged that in the four years that Mother and Child lived with him, he

      “took care of [Child] equally as [Mother] did.” Id. at 25. Father said that Child

      lived in Indiana for most of his life and has a “very close relationship” with

      Father’s mother, Child’s cousin, Father’s grandmother, and Child’s godparents,

      who all live nearby. Id. at 32. Mother testified that she now works for a

      Walmart auto center in Georgia from 11 a.m. to 8 p.m. and can provide Child

      health insurance. Mother explained that Child has adapted to life in Georgia

      and “is crazy about his Papa and Gigi,” her parents. Id. at 113. Mother stated

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-665 | October 9, 2019   Page 3 of 8
that she and Child share a room and live with her parents and her younger

brother but that she is saving money to get her own place. Id. Both Parents

also called witnesses who testified that each is a good parent. See id. at 56, 74.

After the hearing, the trial court issued its order granting Father primary

physical custody of Child. In reaching this decision, the trial court found:


        1. [Mother] unilaterally decided to move back to Georgia with
        Child.


        2. Both parties spent quality time with [Child] when [Parents]
        resided together, although [Mother] did exercise “more” time
        with [Child]. Both parents are good parents and are capable of
        giving [Child] what he needs.


                                                *****


        4. The Fowler Indiana housing for [Child] is more appropriate
        for [Child]. He resided in Fowler for approximately four years
        prior to [Mother’s] relocating to Georgia. [Mother] currently
        resides with her parents in Georgia, and [Child] shares a
        bedroom with [Mother].


                                                *****


        6. [Mother] has changed jobs numerous times[.]


        7. Concerning general stability, [Father] is in a permanent home
        and has maintained his current employment for quite some time.
        It appears far less likely that if [Child] were with [Father]
        primarily that [Child] would have any significant changes in his
        housing or parenting time and schedule. [Father’s] situation is
        more stable and is likely to remain unchanged.

Court of Appeals of Indiana | Memorandum Decision 19A-JP-665 | October 9, 2019   Page 4 of 8
               8. Significant family members and friends have been more firmly
               rooted in or near Fowler, Indiana as a result of living in Fowler
               since birth. [Father] has family members, especially his mother,
               which has [sic] spent much quality time with [Child]. [Mother]
               has significant family members involved in [Child’s] life, and
               although wonderfully sounding family members, the “time” that
               [Child] has already spent with family members is more
               substantial in or around the Fowler or Lafayette area. . . .


               The Court has considered ALL the statutory factors in deciding
               what is in the best interest of [Child]. There is not a GOOD
               situation to be had in this circumstance, where [Mother] and
               [Father] of [Child] do not maintain their relationship AND
               [Mother] finds her best choice is to move back to Georgia,
               apparently 600 miles away according to counsel, from where
               [Child] has spent his previous four years. . . .


               Having considered all the evidence, the disputed and undisputed
               testimony, and all the statutory factors, the Court finds the
               “better” of these two unfortunate options is for [Father] to
               become the primary custodial parent.1


      Appellant’s App. Vol. II pp. 35-36.


[6]   Mother now appeals.




      1
       The trial court also found that “[Child] is a young boy, and [Father] will provide [Child] with more habits,
      attitude, hobbies and mannerisms more appropriate for a boy.” Appellant’s App. Vol. II p. 35. Mother
      challenges this finding, but because we find that the trial court’s other findings support its decision, we need
      not address whether this finding is proper.

      Court of Appeals of Indiana | Memorandum Decision 19A-JP-665 | October 9, 2019                        Page 5 of 8
                                 Discussion and Decision
[7]   Mother contends that the trial court abused its discretion by granting Father

      primary physical custody of Child. We first note that Father did not file an

      appellee’s brief. When the appellee fails to submit a brief, we will not develop

      an argument on his behalf but, instead, we may reverse the trial court’s

      judgment if the appellant’s brief presents a case of prima facie error. GEICO Ins.

      Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014).


[8]   Child-custody determinations fall squarely within the discretion of the trial

      court and will not be disturbed except for an abuse of discretion. In re B.H., 770

      N.E.2d 283, 288 (Ind. 2002). Reversal is appropriate only if we find that the

      trial court’s decision is against the logic and effect of the facts and

      circumstances before it or the reasonable inferences drawn therefrom. Id. We

      do not reweigh the evidence or determine the credibility of witnesses. Hughes v.

      Rogusta, 830 N.E.2d 898, 902 (Ind. Ct. App. 2005). Instead, we consider the

      evidence most favorable to the judgment, with all reasonable inferences drawn

      in favor of the judgment. Id.


[9]   Indiana Code Section 31-14-13-2 provides that in a paternity action:


              The court shall determine custody in accordance with the best
              interests of the child. In determining the child’s best interests,
              there is not a presumption favoring either parent. The court shall
              consider all relevant factors, including the following:


                       (1) The age and sex of the child.


      Court of Appeals of Indiana | Memorandum Decision 19A-JP-665 | October 9, 2019   Page 6 of 8
                 (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 siblings; and


                         (C) any other person who may significantly affect
                         the child’s best interest.


                 (5) The child’s adjustment to 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.


We have said that “[c]ontinuity and stability in the life of a child is an

important component in determining the proper custodial arrangement for a

child.” In re Paternity of M.J.M., 766 N.E.2d 1203, 1210 (Ind. Ct. App. 2002).
Court of Appeals of Indiana | Memorandum Decision 19A-JP-665 | October 9, 2019   Page 7 of 8
[10]   Here, the trial court found as follows: both Parents are good parents and are

       capable of giving Child what he needs; significant family members and friends

       have been more firmly rooted in or near Fowler, as a result of Child living in

       Fowler since birth; Father’s housing in Fowler is more stable for Child; Mother

       unilaterally decided to move back to Georgia with Child; Mother has changed

       jobs numerous times; and Father’s situation is more stable and is likely to

       remain unchanged. Appellant’s App. Vol. II p. 35. What this case truly boils

       down to is that the trial court was put in the difficult position of choosing

       between what it thought were two good parents and selected Father. Mother’s

       complaints about the trial court’s findings are essentially requests for us to

       reweigh the evidence in her favor, which we may not do. We therefore

       conclude that the trial court did not abuse its discretion in granting Father

       primary physical custody of Child.


[11]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JP-665 | October 9, 2019   Page 8 of 8
