MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    Jun 26 2017, 9:09 am
court except for the purpose of establishing
                                                                  CLERK
the defense of res judicata, collateral                       Indiana Supreme Court
                                                                 Court of Appeals
estoppel, or the law of the case.                                  and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Darlene R. Seymour                                       Denise F. Hayden
Ciyou & Dixon, P.C.                                      Indianapolis, Indiana
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of A.V., Sr.,                         June 26, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1609-DR-2217
        v.                                               Appeal from the Marion Superior
                                                         Court
L.V.,                                                    The Honorable James A. Joven,
Appellee-Respondent                                      Judge
                                                         The Honorable Kimberly D.
                                                         Mattingly, Magistrate
                                                         Trial Court Cause No.
                                                         49D13-1201-DR-2551



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 1 of 14
                                                Case Summary
[1]   A.V., Sr. (“Father”), appeals the trial court’s order (“Order”) granting the

      petition for modification of dissolution decree filed by L.V. (“Mother”). Father

      raises one issue, which we restate as whether the trial court abused its discretion

      in granting Mother primary physical custody of Al.V. (“Daughter”). Finding

      no abuse of discretion, we affirm.


                                   Facts and Procedural History
[2]   In April 2014, Mother and Father’s marriage was dissolved.1 Pursuant to the

      dissolution decree, Mother and Father were granted joint legal custody of their

      two minor children, fifteen-year-old An.V. (“Son”) and ten-year-old Daughter,

      and Father was granted primary physical custody. Parenting time was provided

      as follows:


               The children shall alternate weekends with each parent from
               Friday after school … until Monday morning with that parent
               being responsible for transporting the children to school.
               [Mother] should care for the children during times Monday
               through Thursday when [Father] works, whether a normal or
               overtime shift. During weeks when [Father] works only one day
               during this time frame, [Mother] should have the children for an
               additional overnight during the week for a total of two midweek
               overnights per week.




      1
        Father’s statement of the facts is not set forth in accordance with our standard of review and predominately
      consists of Father’s testimony in contravention of Indiana Appellate Rule 46(A)(6)(b) and -(c).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017              Page 2 of 14
      Appellant’s App. Vol. 2 at 20. Mother and Father’s oldest child, who was three

      weeks from turning nineteen, was found to be emancipated. Father was

      awarded the marital residence in Indianapolis and was required to refinance or

      sell it within one year of the decree to remove Mother’s name from the

      mortgage. At the time of the dissolution, the children attended Warren

      Township schools. The dissolution decree provided that the “children should

      attend school from [Father’s] home unless he chooses to relocate outside of the

      school district, at which time [Daughter] may attend school from [Mother’s]

      school district with [Son] given the choice of completing his high school

      education at his current school or at a school in [Mother’s] school district.” Id.


[3]   In July 2014, Father filed the first of three notices of intent to relocate. In his

      notice, Father stated that he intended to relocate to an apartment in

      Greenwood, which was in the Center Grove school district and would enable

      the children to attend better schools. Id. at 24. He also stated that he needed to

      vacate the marital residence to make repairs so that he could comply with the

      dissolution decree. Father’s proposed new apartment was approximately thirty

      miles from Mother’s residence and ten miles from her place of employment.


[4]   Mother filed a petition to modify legal custody and a restraining order, arguing

      that Father had already begun to unilaterally withdraw the children from their

      current schools and enroll them in Center Grove schools, his action was

      contrary to the provisions of the dissolution decree and not in the children’s best

      interests, and her ability to transport the children to Center Grove schools

      would be unreasonably difficult given that she exercised equalized parenting

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 3 of 14
      time. Id. at 27-28. She requested that she be granted legal custody of the

      children and that Father be restrained from withdrawing the children from their

      current schools. Following a hearing, in August 2014, the trial court ordered

      that the parties would continue to share joint legal custody of their minor

      children, Father would continue to have primary physical custody, and Father

      would be permitted to relocate to Greenwood and enroll the children in Center

      Grove schools. Id. at 31.


[5]   In December 2014, Father filed his second notice of intent to relocate. He

      stated that he intended to move back to the marital residence due to financial

      difficulties but the children would remain in their current schools. Id. at 33.

      Mother did not object. In June 2015, Mother filed a petition for modification of

      custody, arguing that a substantial and continuing change of circumstances had

      occurred in that Son felt depressed at his current school and wanted to return to

      Warren Central High School. Id. at 36. She requested that she be granted

      primary physical custody of both children so that they would not be separated

      and on different parenting time schedules. Id. at 37. In August 2015, following

      a hearing, the trial court denied Mother’s petition for modification of custody.


[6]   In April 2016, Father filed his third notice of intent to relocate, stating that he

      intended to move to Bargersville “to reestablish residency in the children’s

      current school district, providing stability and support in their educational and

      social circles.” Id. at 40. In June 2016, Mother filed an objection to Father’s

      intent to relocate contending that it was not in the children’s best interests. Id.

      at 43. Mother also filed a petition for modification of dissolution decree, the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 4 of 14
      petition from which this appeal stems, alleging that a substantial change of

      circumstances had occurred such that the dissolution decree should be modified

      with respect to child custody. The alleged substantial change of circumstances

      included the following: Son was going to turn eighteen, would graduate from

      high school in May 2016, and had been accepted to a college in northern

      Indiana; long-distance driving to Daughter’s school was causing undue fatigue

      and stress on the child; Daughter would be able to attend Washington

      Township schools; there was a great deal of animosity between Son and Father;

      and both children preferred to reside with Mother. Id. at 44-45.


[7]   In June and August 2016, the trial court held a hearing on Mother’s objection

      to Father’s relocation and her petition for modification of dissolution decree. In

      September 2016, the trial court issued its Order granting Mother primary

      physical custody of Daughter. The Order provides in relevant part,


              The Court specifically finds that there is a substantial change of
              circumstances in that [Son] no longer resides with Father and
              Father insists on leaving [Daughter], age thirteen (13) alone
              when he works overnights. This makes the current arrangements
              unreasonable.[2] Father has also refused to alter his and
              [Daughter’s] eating habits, despite being aware of her weight
              issues and has damaged his relationships with the parties’ two
              oldest children to the point where they are strained, at best.




      2
        Indiana law no longer requires that a substantial change in circumstances make the current arrangement
      unreasonable before custody may be modified. Julie C. v. Andrew C., 924 N.E.2d 1249, 1258 (Ind. Ct. App.
      2010) (explaining that custody modification statute was amended in 1994 to remove requirement of
      unreasonableness, and stating, “Thus, a petitioner is no longer required to show that an existing custody
      order is unreasonable before a court will modify it.”).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017           Page 5 of 14
      Appealed Order at 1. This appeal ensued.


                                     Discussion and Decision
[8]   Father challenges the trial court’s decision to grant Mother primary physical

      custody of Daughter. 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. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). An

      abuse of discretion occurs “when the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before the court.” L.C. v. T.M.,

      996 N.E.2d 403, 407 (Ind. Ct. App. 2013). When reviewing a trial court’s

      decision regarding custody modification, we neither reweigh the evidence nor

      judge the credibility of the witnesses. Miller v. Carpenter, 965 N.E.2d 104, 108

      (Ind. Ct. App. 2012). We consider only the evidence favorable to the judgment

      and any reasonable inferences arising therefrom. Id. In the initial custody

      determination, both parents are presumed equally entitled to custody, but a

      petitioner seeking subsequent modification bears the burden of demonstrating

      that the existing custody should be altered. Kirk, 770 N.E.2d at 307.


[9]   The trial court’s Order contains one specific finding.

              When the trial court enters findings sua sponte, the specific
              findings control only as to the issues they cover, while a general
              judgment standard applies to any issue upon which the court has
              not found. The specific findings will not be set aside unless they
              are clearly erroneous, and we will affirm the general judgment on
              any legal theory supported by the evidence. A finding is clearly
              erroneous when there are no facts or inferences drawn therefrom
              that support it. In reviewing the trial court’s findings, we neither
      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 6 of 14
               reweigh the evidence nor judge the credibility of the witnesses.
               Rather, we consider only the evidence and reasonable inferences
               drawn therefrom that support the findings.


       Julie C. v. Andrew C., 924 N.E.2d 1249, 1255-56 (Ind. Ct. App. 2010) (citations

       omitted).


[10]   At the outset, we note that Father bases much of his challenge to the trial

       court’s Order on the relocation statute, Indiana Code Section 31-17-2.2-5,

       which provides that the relocating parent is required to prove that the proposed

       relocation is made in good faith and for a legitimate reason and then the

       nonrelocating parent is required to show that the proposed relocation is not in

       the child’s best interests. Although Mother filed an objection to Father’s April

       2016 notice of intent to relocate, the trial court’s sole finding is clearly not based

       on the relocation. Rather, Mother filed an independent petition for

       modification of dissolution decree based solely on the general modification

       statute, Indiana Code Section 31-17-2-21, and the trial court’s finding is

       unmistakably based on that statute. Therefore, the proper analysis of the trial

       court’s decision is pursuant to Section 31-17-2-21. Given that both statutes

       require consideration of the child’s best interests, Father’s arguments relating to

       Daughter’s best interests are relevant to our review under Section 31-17-2-21,

       and therefore we will consider them.


[11]   Section 31-17-2-21 provides that the trial court “may not modify a child custody

       order unless: (1) 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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 7 of 14
       under section 8.” (Emphasis added.) The factors in Section 31-17-2-8 include,

       among other things, the child’s age and sex; the parents’ wishes; the child’s

       wishes, with the wishes of children fourteen years or older being given more

       weight; the child’s relationship with parents, siblings, and any other person

       affecting the child’s best interests; the child’s adjustment to home, school, and

       the community; and the mental and physical health of all individuals involved.

       Also, in determining whether to modify a child custody order, “the court shall

       not hear evidence on a matter occurring before the last custody proceeding

       between the parties unless the matter relates to a change in the factors relating

       to the best interests of the child as described by section 8.” Ind. Code § 31-17-2-

       21(c).


[12]   Father first argues that claim preclusion bars litigation of Mother’s June 2016

       petition for modification of dissolution decree. Claim preclusion, a branch of

       res judicata, “applies where a final judgment on the merits has been rendered

       and acts as a complete bar to a subsequent action on the same issue or claim

       between those parties and their privies.” Angelopoulos v. Angelopoulos, 2 N.E.3d

       688, 696 (Ind. Ct. App. 2013), trans. denied (2014).


                In order for a claim to be precluded under the doctrine of res
                judicata, the following four requirements must be satisfied: (1)
                the former judgment must have been rendered by a court of
                competent jurisdiction; (2) the former judgment must have been
                rendered on the merits; (3) the matter now in issue was, or could
                have been, determined in the prior action; and (4) the
                controversy adjudicated in the former action must have been
                between the parties to the present suit or their privies. …. In
                determining whether the doctrine should apply, it is helpful to
       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 8 of 14
               inquire whether identical evidence will support the issues involved in
               both actions.


       Afolabi v. Atl. Mortg. & Inv. Corp., 849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006)

       (citations omitted) (emphasis added).


[13]   Father contends that the trial court already heard and rejected identical

       arguments at the hearing on Mother’s June 2015 petition to modify custody.

       We observe that a year had passed between the hearing held on Mother’s June

       2015 petition and the hearing on Mother’s June 2016 petition. At the hearing

       on the June 2016 petition, the trial court specifically stated that the law

       prohibited consideration of events that occurred before modification was last

       considered. 8/26/16 Tr. at 44; See Ind. Code § 31-17-2-21(c). Circumstances

       can very easily change over the course of a year. In fact, the trial court found

       that they had. Where new facts exist upon which the new claim is based, the

       matter now in issue cannot have been determined in the former action. We

       conclude that claim preclusion does not bar Mother from litigating the

       arguments in her June 2016 petition for modification of dissolution decree. See

       Afolabi, 849 N.E.2d at 1175 (concluding that where facts necessary to establish

       default in first foreclosure action were different from facts necessary to establish

       default in second foreclosure action, res judicata did not apply to bar second

       action).


[14]   Next, Father asserts that Mother failed to carry her burden to establish that

       modification of child custody was warranted. Pursuant to Section 31-17-2-21,

       the trial court found that a substantial change in circumstances had occurred
       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 9 of 14
       because Son no longer lives at home and Father “insists” on leaving Daughter

       alone when he works overnights. Appealed Order at 1. In addition, by

       granting Mother’s request for primary physical custody, the trial court implicitly

       found that under the circumstances, it was not in Daughter’s best interests to be

       left home alone at Father’s apartment while he was working overnight. Our

       review of the record leaves us confident that the trial court did not abuse its

       discretion.


[15]   The evidence favorable to the trial court’s decision shows that Son has

       graduated from high school, has started college at St. Joseph’s College in

       Rensselaer, and no longer lives with Father. As of the first day of the hearing in

       June 2016, Daughter was twelve years old and had just finished seventh grade

       and would turn thirteen in July. Father’s employment frequently requires him

       to work twenty-four-hour shifts, and he leaves Daughter alone overnight while

       he is working. 6/24/16 Tr. at 22-23. In early June, Father moved to the

       Bargersville apartment. Mother testified that she did not think that Daughter

       knew anyone near their new apartment, and there is no evidence that Daughter

       did know anyone nearby. That day, Mother had gone to Daughter’s softball

       game, and Daughter had an overnight bag because she expected to go home

       with Mother. However, Father insisted that Mother bring Daughter to the

       empty apartment in Bargersville. Mother dropped Daughter off at the empty

       apartment against her better judgment because Father threatened legal action

       against her. 8/26/16 Tr. at 21-22.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 10 of 14
[16]   In another instance, Mother’s parenting time was to end on a Sunday evening

       at 6:00 p.m., and she learned that Father would be working overnight. Because

       he was working, she asked him if she could keep Daughter until he got off work

       the next morning. Id. at 11-12. Father texted Mother that she was to take

       Daughter to his apartment or he would see Mother in court, that Mother was

       interfering with his parenting time, and that if she did not bring Daughter to the

       apartment, he was going to send commercial transportation for Daughter. Id.

       at 12. Mother texted Father that she did not feel comfortable with Daughter

       being alone overnight. Father agreed to meet Mother at a McDonald’s to pick

       up Daughter, after which he took her to the apartment and went back to work.

       Id. There were two or three other instances when Daughter stayed alone

       overnight, including one when another thirteen-year-old girl spent the night

       with her. Father testified that after speaking with other parents, he thinks that it

       is appropriate to allow a thirteen-year-old girl to spend the night alone and that

       if he retains custody he would continue to leave Daughter by herself on nights

       that he is working.3 Id. at 83. Mother and Father had an agreement that

       Daughter would stay with Mother when Father worked during the week.

       Appellant’s App. at 20; 6/24/16 Tr. at 27; Appellant’s Reply Br. at 7.


[17]   Father justifies his decision to leave Daughter alone overnight because other

       parents apparently believe that thirteen is an appropriate age to stay at home



       3
         Father contends that he has left Daughter alone overnight only three times over the summer and that
       isolated acts do not warrant modification of custody. Appellant’s Br. at 17. However, his testimony shows
       that this would not be an isolated act.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017          Page 11 of 14
       overnight, one night another thirteen-year-old stayed with Daughter, he works

       only twenty minutes away, and he lives in a safe neighborhood. He argues that

       a difference in opinion on this question is insufficient to justify a change in

       custody. The evidence shows that Father ignored Mother’s concerns and their

       prior agreement, insisted that Daughter remain alone in the apartment rather

       than stay overnight with Mother, and threatened to take Mother to court.

       Father offers no reasonable justification for refusing to allow Daughter to stay

       with Mother. “[I]n custody disputes, the trial court is often called upon to

       make Solomon-like decisions in complex and sensitive matters. The trial court

       is in a position to see the parties, observe their conduct and demeanor, and hear

       their testimony; therefore, its decision receives considerable deference in an

       appellate court.” Trost-Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind. Ct. App.

       2002) (citations and quotation marks omitted), trans. denied. Father’s argument

       is merely a request to reweigh the evidence and judge witness credibility, which

       we must decline. See Miller, 965 N.E.2d at 108. We conclude that the evidence

       supports the trial court’s finding that Son’s absence from Father’s home and

       Father’s insistence that thirteen-year-old Daughter spend the night alone

       constitutes a substantial change in circumstances and is not in Daughter’s best

       interests.


[18]   Father also contends that the evidence does not support the trial court’s implicit

       finding that Daughter has a weight issue and that his eating habits are

       contributing to it. The evidence shows that Mother took Daughter to her yearly

       physical in July 2016 and Daughter’s doctor was concerned about her weight


       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 12 of 14
       and discussed healthy eating habits with her. Daughter was thirty-five pounds

       over her ideal weight. 8/26/16 Tr. at 10. She has developed stretch marks

       from her rapid weight gain. 6/24/16 Tr. at 21-22. Mother prepares home-

       cooked meals almost every night with vegetables and fruits. 8/26/16 Tr. at 10.

       Mother and Daughter go for walks, often walking the dogs together. Although

       Father participates in active pursuits with Daughter, such as going white-water

       rafting and mountain biking while on vacation, Father could not remember the

       last time he prepared a home-cooked meal. Father testified that they “do not

       cook much at home” and they usually get takeout, which Father described as

       pizza, steak, vegetables, Asian food, Chinese food, and Subway sandwiches.

       Id. at 89-90. Again, Father’s arguments are invitations to reweigh evidence and

       judge witness credibility, which we cannot not do. See Miller, 965 N.E.2d at

       108. We conclude that the evidence supports the trial court’s finding regarding

       Daughter’s weight and diet.


[19]   Father does not contest the trial court’s finding that his relationships with the

       two older children are strained, but he argues that it should have no bearing on

       custody modification. We disagree. Among the factors that are relevant to a

       child’s best interests are the child’s relationships to siblings. Ind. Code § 31-17-

       2-8. The record shows that Father’s relationship with Son is very troubled,4 and

       the strain in their relationship casts a dark shadow on Daughter and Son’s

       ability to maintain their relationship.


       4
         A significant amount of testimony at the hearing was directed to the clashes between Father and Son, and
       the trial court’s finding that their relationship is strained appears to be an understatement.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017          Page 13 of 14
[20]   Finally, Father asserts that changing custody is not in Daughter’s best interests

       because she has been doing well academically in her current school and has

       made friends at the school. Father notes that if custody is modified Daughter

       will have to change schools, which would constitute a serious disruption in her

       life, and a change in custody for this reason alone is not in Daughter’s best

       interests. The impact of changing schools will vary depending on the child and

       the child’s circumstances and standing alone is not determinative of whether a

       change in custody is in a child’s best interests. The trial court heard evidence

       on multiple factors of Daughter’s life and found that it was in her best interests

       to be in the primary custody of her Mother. We cannot say that the trial court

       abused its discretion in granting Mother primary physical custody of Daughter.

       Therefore, we affirm.


[21]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-DR-2217 | June 26, 2017   Page 14 of 14
