      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                             Sep 11 2018, 8:53 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
      Samantha M. Joslyn
      Law Office of Samantha M. Joslyn
      Rensselear, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Nicole A. Baswell,                                       September 11, 2018
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               18A-DR-00401
              v.                                               Appeal from the Newton Circuit
                                                               Court
      Bryan E. Baswell,                                        The Honorable Jeryl F. Leach,
      Appellee-Petitioner                                      Judge
                                                               Trial Court Cause No.
                                                               56C01-1105-DR-17



      May, Judge.


[1]   Nicole A. Baswell (“Mother”) appeals following the trial court’s denial of her

      motion to reconsider the modification of custody the court entered on August 1,

      2017. We affirm the trial court’s denial of Mother’s motion.


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-00401 | September 11, 2018           Page 1 of 8
                            Facts and Procedural History
[2]   The trial court dissolved the marriage of Mother and Bryan E. Baswell

      (“Father”) on March 12, 2012. Pursuant to the dissolution order, Mother had

      primary physical custody of the parties’ two children, L.B. and P.B. Father

      filed a motion to modify custody in 2013, which the trial court denied.


[3]   In June 2017, Father filed another motion to modify custody. The trial court

      held a hearing and then, on August 1, 2017, the trial court granted Father

      custody of L.B. and P.B. in an order that provided, in pertinent part:


              The Court finds that there has been a substantial change in one
              (1) or more of the factors that the court may consider under
              Indiana Code 31-17-2-8 such that it is now in the best interest of
              the children that custody be awarded to Father.


              Mother is awarded parenting time from Friday, August 4, 2017,
              at 8:00 p.m. CST to Sunday, August 6, 2017, at 6:00 p.m. CST,
              and at all times and places as agreed to by the parties. If the
              parties are unable to agree on specific parenting time, Mother
              shall have the children every other Thanksgiving break, half of
              every Christmas break, each Spring break, and half of every
              summer break. Mother’s parenting time during these holidays
              shall be pursuant to the Indiana Parenting Time Guidelines.


      (Appellant’s App. Vol. 2 at 13.)


[4]   Mother filed a motion to reconsider on August 24, 2017. Therein she requested

      the trial court conduct new in-camera interviews with L.B. and P.B. because the

      children had admitted to her that they had been dishonest in their earlier


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-00401 | September 11, 2018   Page 2 of 8
      interviews. (See id. at 16.) Father opposed Mother’s motion and requested

      supervised visitation based on his belief Mother was “badgering the minor

      children during her visitations.” (Id. at 24.) The court, on Mother’s motion,

      appointed a Guardian Ad Litem (“GAL”), who investigated and then filed her

      report on January 12, 2018. (See id. at 34-50.)


[5]   The trial court held a hearing on all pending motions on January 22, 2018. At

      that hearing, Mother withdrew her objection to L.B. remaining in Father’s

      custody, but she still sought custody of P.B. The GAL, in both her report and

      her testimony, recommended Father retain custody of both children. The trial

      court denied Mother’s motion to reconsider and Mother’s motion for in-camera

      interviews of the children. 1 On February 13, 2018, Mother filed a notice of

      appeal.



                                    Discussion and Decision
[6]   Mother states the issue on appeal is whether the trial court “abused its

      discretion when issuing its order denying Mother’s Petition for Modification of

      Custody.” 2 (Br. of Appellant at 4.) However, the Chronological Case




      1
       The trial court disposed of other pending motions, but as those motions are not pertinent the issue before
      us, we choose not to elaborate.
      2
        Father did not file an appellee’s brief. When an appellee does not file a brief, we will “not undertake the
      burden of developing arguments” on that party’s behalf. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct.
      App. 2002). Rather, we apply “a less stringent standard of review” and may reverse if the appellant
      establishes prima facie error. Id. Prima facie “means at first sight, or on first appearance, or on the face of it.”
      Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-00401 | September 11, 2018                       Page 3 of 8
Summary (“CCS”) contains no indication Mother filed a petition to modify

custody following the court’s order of August 1, 2017. Instead, at the beginning

of the January 22, 2018, hearing on the parties’ multiple pending motions, the

trial court determined Wife’s still-pending motion was a motion to reconsider

the trial court’s August 1, 2017, order modifying custody. (See Tr. at 5.) The

parties then explained what other motions were still before the court:


        THE COURT:                        Are there any other preliminary maters
        [sic]?


        [Father’s Counsel]:         Yes, sir, before it has been filed on
        August the thirtieth a Motion for supervised visitation, which we
        would dismiss at this time. So I believe that leaves for [sic]
        Husbands [sic] Motion for return of children’s personal property,
        former Wife’s Motion to reconsider, and former Wife’s citation
        for contempt. I believe [Mother’s Counsel] advised the Court
        and the parties prior to coming in here today that he is no longer
        seeking custody request for change of custody with regard to
        [L.B.], just with regard [to P.B.].


        [Mother’s Counsel]:     Yes, you’re [sic] Honor that is correct.
        We also have a Motion for in-camera inspection that [is pending]
        as well.


        THE COURT:                 Okay. Alright so I will grant the
        request to withdraw the motion for supervised parent time filed
        by Father and I’ll also show that the issue of Custody of the
        parties’ minor daughter is not an issue here today.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-00401 | September 11, 2018   Page 4 of 8
      (Id. at 7-8.) At no point during those preliminary discussions did either party or

      the trial court assert a new motion to modify custody had been filed. Then, at

      the end of the hearing, the trial court announced:


              The Court is going to deny the In-camera Interview of the
              children. The Court is going to deny Mother’s Petition for
              Contempt, the Court is going to Deny Father’s Petition to return
              property. Custody shall remain as previous [sic] ordered. The
              Court will make such other orders as necessary as a result of
              these findings and I will issue a full written order in the near
              future.


      (Id. at 65.) Thus, the record simply does not support Mother’s assertion she had

      filed a motion for modification of custody that was pending before the court. 3


[7]   Instead, as noted above, the trial court concluded it was deciding Mother’s

      motion to reconsider its August 1, 2017, order transferring custody to Father.

      However,


              Mother’s motion cannot be considered a true motion to
              reconsider, as the court no longer had the power to rule on such a
              motion. Our review of the trial rules reveals that motions to
              reconsider are properly made and ruled upon prior to the entry of
              final judgment. See Ind. Trial Rule 53.4(A). After final judgment
              has been entered, the issuing court retains such continuing
              jurisdiction as is permitted by the judgment itself, or as is given
              the court by statute or rule. One such rule is Trial Rule 59 which



      3
        We note the trial court’s written “Order of January, 2018” indicates the hearing was on six motions,
      including “Mother’s Motion to Reconsider” and “Mother’s Motion to Change Custody.” (Appellant’s App.
      Vol. 2 at 53.) The court also “denied” her “Motion for Change of Custody.” (Id.) However, the trial court’s
      inclusion of that language was error as no such motion had been filed.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-00401 | September 11, 2018             Page 5 of 8
              provides the court, on its own motion to correct error or that of
              any party, the ability to alter, amend, modify or even vacate its
              decision following the entry of final judgment. Accordingly,
              although substantially the same as a motion to reconsider, a
              motion requesting the court to revisit its final judgment must be
              considered a motion to correct error. We decline to favor form
              over substance and, despite its caption, Mother’s motion in the
              instant case should have been treated as a motion to correct
              error.


      Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998) (internal case

      citations omitted).


[8]   In Hubbard, as in the case before us, the mother’s motion at issue had been filed

      after the trial court entered a final order after a hearing arising from a motion to

      modify custody. In accordance therewith, we hold Mother’s motion to

      reconsider was, in fact, a motion to correct error. See id. Moreover, in that case

      we explained


              the trial court is given a similar and related power to revise or
              vacate its decisions pursuant to Indiana Trial Rule 52(B). See
              Ind. Trial Rule 59(J)(4). Trial Rule 52(B) provides that in a case
              tried without a jury, the court may, at any time before a motion
              to correct error is required to be made, or with or as part of a
              motion to correct error by any party, take additional testimony,
              amend or make new findings of fact and enter a new judgment,
              or any combination thereof. Thus, at least up to and including
              the ruling on a motion to correct error, the trial court is permitted
              to alter, amend, or modify its judgment without limitation.


      Id. (internal case citations omitted).



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-00401 | September 11, 2018   Page 6 of 8
[9]    Herein, the trial court accepted additional evidence prior to ruling on Mother’s

       motion to correct the error that she alleged occurred in the court’s August 1,

       2017, order that modified custody of Children to Father, and the trial court then

       denied Mother’s motion to correct error in an order that did not contain any

       additional findings or conclusions. In such a situation, we review the denial of

       Mother’s motion to correct error for an abuse of discretion. See Stott v. Stott,

       737 N.E.2d 854, 857 (Ind. Ct. App. 2000) (reviewing for abuse of discretion

       denial of motion to correct error based on new evidence). “On appeal, we will

       not find an abuse of discretion unless the trial court’s decision is clearly against

       the logic and effect of the facts and circumstances before it or is contrary to

       law.” Spaulding v. Cook, 89 N.E.3d 413, 420 (Ind. Ct. App. 2017), trans. denied.


[10]   Mother argues the evidence in the record simply did not support the trial court’s

       decision. However, the GAL filed a report that stated:


               It is recommended that the parties share joint legal custody of the
               minor children. Each party should have the right to receive
               medical or educational information about either of the children.
               However, it is recommended that [Father] continue to be
               awarded sole physical custody. Said recommendation is made
               because of the weight of the relationships that the children have
               in [Father]’s home and the environment.


       (Appellant’s App. Vol. 2 at 48.) She also testified that Father appeared to be

       well informed about P.B.’s educational needs, that she did not want to separate

       the children from one another, that the children get along well with one another

       and are “very close.” (Tr. at 23.) As a result of everything the GAL had


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-00401 | September 11, 2018   Page 7 of 8
       learned in her investigation, she testified: “I believe that overall, based on

       everything that is [sic] probably would be in [P.B.]’s best interest to remain in

       [Father’s] custody.” (Id. at 25.) Given that testimony and report, we cannot

       say the trial court abused its discretion in denying Mother’s motion to correct

       error.



                                               Conclusion
[11]   The record does not demonstrate the trial court abused its discretion when it

       denied Mother’s motion to correct error. Accordingly, we affirm.


[12]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-00401 | September 11, 2018   Page 8 of 8
