                                                                               FILED
                                                                          Sep 08 2016, 9:25 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Karen Yvonna Renfro                                       Michael N. Red
      New Albany, Indiana                                       Morse & Bickel, P.C.
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Carl Wayne Montgomery,                                    September 8, 2016
      Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                                10A01-1511-DR-1910
              v.                                                Appeal from the Clark Circuit
                                                                Court
      Patricia Ann Montgomery,                                  The Honorable Vicki Carmichael,
      Appellee-Respondent.                                      Judge
                                                                Trial Court Cause No.
                                                                10C04-0911-DR-256



      Barnes, Judge.


                                              Case Summary
[1]   Carl Montgomery (“Father”) appeals the trial court’s order modifying custody

      of his daughter in favor of Patricia Ann Montgomery (“Mother”). We reverse

      and remand.




      Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016                 Page 1 of 26
                                                      Issues
[2]   The issues before us are:

              I.       whether the trial court’s decision to modify custody is
                       supported by the evidence; and


              II.      whether the trial court properly ordered Father to pay
                       $7,500.00 towards Mother’s attorney fees.


                                                      Facts
[3]   During the parties’ marriage they had one child, A.M., who was born in

      November 2008. In November 2009, Father petitioned for divorce in Clark

      County, based on the parties’ residence in Clarksville. Mother moved to

      Minnesota and was granted provisional primary custody of A.M. but frequently

      interfered with Father’s parenting time. In August 2011, the trial court entered

      an emergency order transferring custody of A.M. to Father, but A.M. remained

      in Minnesota with Mother. On June 19, 2012, the trial court entered a final

      dissolution decree in which Father was granted sole legal and physical custody

      of A.M., and the decree ordered Mother to deliver A.M. to Father immediately.

      The decree further specified, “law enforcement officials in Minnesota or

      elsewhere are hereby ordered to assist with this endeavor, as it is presumed that

      [Mother] will not be cooperative.” App. p. 25. Additionally, Mother was not

      granted any parenting time due to her failure to appear at the final dissolution

      hearing and her prior interference with Father’s parenting time. In July 2012,

      Mother appeared before the trial court and filed a request for parenting time. In


      Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 2 of 26
      November 2012, the parties agreed to a parenting time schedule that was

      approved by the trial court; the agreement and order granted parenting time to

      Mother in accordance with the Indiana Parenting Time Guidelines where

      significant distance is a factor. This order did not alter the award of sole legal

      custody to Father.


[4]   At some point, Mother moved to Wisconsin and began living with Gary Best.

      On August 23, 2013, Father filed a rule to show cause and motion to modify

      parenting time. The motion alleged in part that Mother failed to pay Father

      $8,296.24 in attorney fees she had previously been ordered to pay and $2,500.00

      in damages awarded to Father. The motion further alleged Mother had not

      been paying the full amount of child support she had been ordered to pay. The

      motion further stated that Mother was living with a boyfriend, i.e. Best, who

      had at least two convictions for battery in Wisconsin and/or Minnesota,

      possibly involving domestic partners, and that this warranted an alteration of

      Mother’s parenting time. On September 28, 2013, Father filed a petition for a

      protective order against Mother, alleging she was stalking him by repeatedly

      sending harassing text messages. Also, Father alleged that Mother’s “boyfriend

      assaulted my daughter on her last visit & I am pursuing criminal action against

      him . . . .” Id. at 38. Although the CCS indicates that a hearing was scheduled

      on Father’s rule to show cause and motion to modify parenting time for

      October 28, 2013, there is no indication that the trial court ever ruled on the

      motions. As for the protective order request, on November 27, 2013, the trial

      court entered a “Joint Temporary Restraining Order Issued Under Trial Rule


      Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 3 of 26
      65(E)(2)” at the parties’ mutual request, precluding each party from harassing

      or battering the other or coming onto the other’s property. 1 Id. at 40.


[5]   On December 17, 2013, Father filed an “Emergency Motion to Modify

      Parenting Time,” in light of Mother’s approaching parenting time for the

      holidays. Id. at 42. In the motion, Father alleged that A.M. was afraid of Best

      and that A.M. had told Father Best previously struck A.M. and Mother while

      A.M. was sitting in Mother’s lap. The motion also stated that Father took

      A.M. to a psychologist and counselor, Meg Hornsby, who believed A.M. had

      not fabricated the battery incident or her fears of Best. On December 27, 2013,

      the parties’ parenting time coordinator, Rebecca Lockard, filed an entry with

      the trial court stating Mother should have parenting time with A.M. from

      December 28, 2013 through January 4, 2014. Lockard’s entry also stated that

      she was aware of Father’s accusations against Best and Hornsby’s concerns, but

      that “Child Protective Services investigated the incident and found no reason to

      be involved or supervise any contact between the child and Gary Best.” Id. at

      44. However, Father refused to deliver A.M. to Mother at that time.


[6]   On January 14, 2014, the trial court held a telephonic pretrial conference with

      the parties. During the hearing, Mother denied any physical abuse or threat of

      abuse by Best against her or A.M. After the hearing, the trial court ordered that




      1
        Although the order states that it was issued under Indiana Trial Rule 65(E)(2), that rule governs temporary
      restraining orders precluding harassing behavior in domestic relations cases and specifically states, “A joint
      or mutual restraining order shall not be issued.”

      Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016                       Page 4 of 26
      Mother be granted makeup visitation time beginning on January 18, 2014, for a

      two-week period. The trial court also appointed a guardian ad litem (“GAL”),

      Brittany Wilson, to investigate the case and submit a report to the court.


[7]   On January 15, 2014, Hornsby sent a letter to the trial court. In the letter,

      Hornsby recommended that Best not be present during any of Mother’s

      parenting time with A.M. based on A.M.’s reports of physical abuse by Best.

      Hornsby also recommended that Father and Mother work with her (Hornsby)

      to develop a safety plan for A.M.


[8]   On January 16, 2014, Father filed, in Wisconsin, a request for a temporary

      restraining order preventing Best from having any contact with A.M. The

      Wisconsin court granted the request, effective through January 27, 2014. Also

      on January 16, Father filed in Indiana a “Renewed Motion for Modification of

      Order for Parenting Time or in the Alternative Motion for an Amended

      Parenting Order to Include a Safety Plan.” Id. at 57. In response to this latest

      motion, the trial court entered an ex parte order preventing Best from being

      present for any parenting time between Mother and A.M. and scheduled

      another pretrial conference for January 28, 2014.


[9]   During the conference on January 28, 2014, Mother again denied any physical

      abuse by Best. After the hearing, the trial court entered an order directing that

      Mother be allowed two weeks of parenting time beginning February 1, 2014,

      and without any restrictions on Best being present. Mother did end up having




      Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 5 of 26
       two weeks of parenting time in February, delayed by one week for weather

       concerns and not Father’s actions.


[10]   Mother was granted another week of parenting time in April 2014. Before that

       visitation was to occur, the GAL wrote a letter to the trial court expressing

       concern that Best should not be present during any parenting time. The GAL

       also recommended that Father provide Mother with medical and schooling

       information for A.M., which he had not been doing. The trial court did not

       enter any order restricting Best from being present during parenting time in

       response to the GAL’s letter, and the parenting time took place as scheduled.


[11]   Meanwhile, Mother’s attorney filed a subpoena with Hornsby, requesting

       copies of A.M.’s counseling records. Hornsby resisted this subpoena and

       sought a protective order, but the trial court denied it and required Hornsby to

       provide the records. She never did so, however.


[12]   At the conclusion of Mother’s parenting time in April 2014, she went to her

       attorney’s office in Indianapolis and arranged for a video recording to be made

       of A.M. without A.M.’s knowledge, interacting with Mother, Best, and

       Mother’s attorney. In the video, Mother, A.M., Best, and Mother’s attorney

       are eating pizza together in a conference room. A.M. sat next to Best and freely

       interacted with him without apparent fear. A.M. referred to Best as “dad” or

       “daddy.” Ex. 1. After a while, Mother left the room on the pretense of having

       to put more money in a parking meter. A.M. initially wanted to go with

       Mother, but she told A.M. to stay in the room. Then, Best said he had to go to


       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 6 of 26
       the restroom. Again, A.M. wanted to go with him but he told her it was

       improper for her to do so, and she stayed in the room alone with Mother’s

       attorney. As Best was leaving, A.M. said, “I love you in the whole planet.” Id.

       Mother’s attorney then engaged in conversation with A.M. A.M. said that it

       was her “dream” to stay with Mother and that Best had told her that her dream

       would come true. Id. Mother’s attorney asked A.M. whether she was afraid of

       Best, and she responded, “Carl wants me to believe I am but I am not.” Id.

       Mother’s attorney also asked whether Best had ever hurt her and A.M.

       responded, “No. Carl just wanted me to ask him why.” Id. A.M. denied or

       did not remember having ever talked to Hornsby. A.M. stated that she did not

       tell the GAL that she wanted to live with Mother because she was afraid of

       making the GAL mad. She also claimed to be sad that she was going back to

       Father’s house that day. A.M. also denied having been told by someone else to

       say the things she said to Mother’s attorney.


[13]   Mother’s attorney sent a copy of this video to the GAL, who viewed it before

       submitting a report to the trial court on May 15, 2014.2 Among other things,

       the GAL noted having reviewed a recent criminal case against Best in

       Wisconsin for third degree felony assault resulting in serious bodily injury and

       that she was troubled by the behavior it described, though it was committed




       2
         Mother has insinuated that the GAL did not view the video before writing her report. However, the report
       clearly states that the GAL reviewed “videos submitted by the parties or their counsel,” and she further
       testified clearly during the custody modification hearing that she viewed the video before writing her report.
       App. p. 66.

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016                      Page 7 of 26
       against a co-worker.3 The GAL also noted that Father had improperly been

       withholding information from Mother regarding A.M.’s education, health care,

       and other issues, and that he needed to stop doing so. The GAL also had

       concerns that Mother was attempting to portray Best to A.M. as her real father

       while referring to Father as “Carl,” which, indeed, would seem to be reflected

       by the video made in Mother’s attorney’s office. The GAL recommended in

       part:


                [Mother] should continue to have parenting time as ordered by
                the Court. However, Gary Best should not be present for any
                parenting time with [A.M.] at this time. Of course, I can never
                say for sure that this incident where Gary hit [A.M.] occurred,
                however, [A.M.]’s demeanor and the details she revealed lead me
                to believe something happened at [Mother]’s home. [A.M.]’s
                allegation combined with Mr. Best’s arrest and subsequent guilty
                plea for Felony Assault, give me cause for great concern with
                regard to [A.M.]’s safety with Gary present. To be clear, I am
                not limiting [Mother]’s parenting time with her daughter. I
                believe that [Mother] should be able to exercise her parenting
                time and make arrangements such that Gary is not present for the
                time being.


       App. at 69.


[14]   On May 13, 2014, Mother filed a petition to modify child custody in her favor.

       In addition to moving to modify custody, Mother filed a motion in limine to




       3
        Father has not submitted any evidence that Best has any prior domestic battery convictions, as alleged in his
       August 23, 2013 motion to modify parenting time.

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016                     Page 8 of 26
       exclude any reliance upon Hornsby’s opinions regarding A.M. because of

       Hornsby’s refusal to supply counseling records to Mother and her attorney.

       Unfortunately, and after a failed attempt at mediation, the trial court did not

       begin conducting a hearing on the petitions until May 18, 2015. In the

       meantime, Father and his attorney at the time did not cooperate with the

       parenting time coordinator, Lockard, with respect to scheduling summer 2014

       parenting time for Mother with A.M., and none took place until October 2014.

       In total, under the Indiana Parenting Time Guidelines, based on A.M.’s age

       and the distance between the parties, Mother was entitled to six weeks of

       parenting time in 2013 but only received four weeks. In 2014, Mother was

       entitled to nine weeks of parenting time but only received six weeks.


[15]   During the hearing on May 18, 2015, Mother presented her testimony and that

       of Lockard. Mother denied any history of violence between her and Best or

       between Best and A.M., and the April 2014 video of A.M. was played. Mother

       did admit to Best’s felony battery conviction in Wisconsin, which apparently

       was entered in May 2014, and which resulted in serious bodily injury to the

       victim. Mother also testified as to Father’s uncooperativeness with providing

       information on such things as A.M.’s medical care and education and with

       providing his correct address to her. Lockard testified as to difficulty she had in

       the past working with Father, culminating in a threat in September 2014 to quit

       serving as coordinator. However, Lockard also stated that, after Father told her

       to communicate directly with him and not his previous attorney, and after he

       obtained a new attorney, the communication issues improved. Mother


       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 9 of 26
       presented no evidence as to her current housing arrangements in Wisconsin, or

       where A.M. would attend school, or extracurricular activities in which A.M.

       could participate. The GAL also testified at this hearing and stated that she

       could not definitively say whether her recommendation from May 2014 was

       still valid, as she had not spoken to A.M. or the parties since then. 4 Regardless,

       her May 2014 report was introduced into evidence. At the conclusion of the

       hearing, the trial court entered a summer parenting time order for A.M. and

       Mother, and Father did not attempt to interfere with that order. There is no

       evidence that Mother was deprived of any parenting time to which she was

       entitled in 2015 or at anytime since fall 2014; in fact, Father had voluntarily

       offered a week of parenting time to Mother during spring break in 2015.


[16]   The trial court continued the hearing to June 15, 2015. On that date, Father

       testified, as well as A.M.’s godmother, a family friend, and Father’s sister.

       Father presented evidence as to his employment and day care arrangements,

       and his appropriate household and positive relationship with A.M., as well as

       her finishing kindergarten and preparing to enter first grade in the fall, her

       friends from school and church, and her participation in dancing and tumbling

       classes. Mother did not dispute any of the evidence that A.M. has been well

       cared-for by Father, aside from his interference with Mother’s parenting time in




       4
         The GAL referred to Best as Mother’s “paramour” during this hearing. Tr. p. 98. Before the trial court and
       this court, Mother has implied that the GAL was using the term in a derogatory fashion. We cannot glean
       that the GAL intended any such meaning. “Paramour” may mean “an illicit lover, especially of a married
       person,” or simply “any lover.” See Dictionary.com (last visited June 21, 2016).

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016                   Page 10 of 26
       2013 and 2014. Father did not present any evidence to attempt to substantiate

       his earlier claim that Best had battered A.M. Also, Hornsby was not called to

       testify.


[17]   In addition to custody matters, Mother also presented evidence that she had

       incurred nearly $18,000 in attorney fees in the past two years in fighting

       Father’s attempts to limit her parenting time and in moving to modify custody.

       During his testimony, Father began discussing Mother’s failure to pay him

       previously-ordered attorney fees, but he was not allowed to do so because of

       Mother’s objection.


[18]   On October 9, 2015, the trial court entered an order granting Mother’s petition

       to modify custody. The order contained some findings and conclusions, largely

       following Mother’s proposed order; neither party requested written findings and

       conclusions under Indiana Trial Rule 52(A). However, although Mother’s

       proposed order contained provisions striking Hornsby’s opinions from the

       record, the trial court’s order did not. The trial court did state in part, “In an

       attempt to bolster his renewed allegations against Mr. Best, and

       notwithstanding that the provisions of Rule 704(b) of the Indiana Rules of

       Evidence prohibit expert testimony concerning ‘the truth or falsity of

       allegations’ or ‘whether a witness has testified truthfully,’ or ‘legal conclusions,’

       [Father] states that he had enlisted the assistance of psychological counselor

       Meg Hornsby . . . .” Id. at 93. The trial court noted the evidence presented by

       Father as to his responsibility and care for A.M. and her positive living

       conditions; it did not discuss the evidence at length because Mother did not

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 11 of 26
       dispute that evidence. Ultimately, the trial court found that Father “has

       fabricated the allegation that Mr. Best assaulted [A.M.] in order to disrupt

       [A.M.]’s frequent, meaningful, and continuing contact with [Mother].” Id. at

       103. The trial court also found that Father “has deliberately concealed [A.M.]’s

       school, medical, counseling, daycare, and dental records, and even his and

       [A.M.]’s own address, from [Mother], all in violation of the Court’s orders.”

       Id. Based upon these findings, the trial court granted Mother legal and physical

       custody of A.M., with Father having distance-related parenting time under the

       Parenting Time Guidelines. The trial court also ordered Father to pay

       $7,500.00 toward Mother’s attorney fees; it did not mention Mother’s

       outstanding debt to Father for attorney fees and other damages. Father now

       appeals. The trial court denied Father’s request to stay implementation of the

       custody modification during the pendency of this appeal.


                                                    Analysis
                                         I. Modification of Custody

[19]   The trial court entered findings and conclusions in this case sua sponte. In such

       a case, the specific findings control only with respect to issues they cover, and a

       general judgment standard applies to issues outside the findings. In re Marriage

       of Sutton, 16 N.E.3d 481, 484-85 (Ind. Ct. App. 2014). “The trial court’s

       findings or judgment will be set aside only if they are clearly erroneous.” Id. at

       485. A finding is clearly erroneous only if there are no facts or inferences

       drawn therefrom to support it. Id.



       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 12 of 26
[20]   We acknowledge the well-established preference in Indiana “‘for granting

       latitude and deference to our trial judges in family law matters.’” Steele-Giri v.

       Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622

       N.E.2d 178 (Ind. 1993)). “Appellate courts ‘are in a poor position to look at a

       cold transcript of the record, and conclude that the trial judge, who saw the

       witnesses, observed their demeanor, and scrutinized their testimony as it came

       from the witness stand, did not properly understand the significance of the

       evidence.’” Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). In order

       to reverse a trial court’s ruling, it is not enough that the evidence might have

       supported a different conclusion. Id. Rather, the evidence must positively

       require the conclusion contended for by appellant we may reverse. Id. We may

       not reweigh the evidence or reassess witness credibility, and the evidence

       should be viewed in a light most favorable to the judgment. Id. (quoting Best v.

       Best, 941 N.E.2d 499, 502 (Ind. 2011)). Still, although we must be highly

       deferential to trial courts in cases such as this, that deference is not absolute.

       See Kirk, 770 N.E.2d at 307 n.5 (“This is not to say that the circumstances of a

       custody or visitation case will never warrant reversal.”).


[21]   Pursuant to Indiana Code Section 31-17-2-21, a trial court may not modify a

       child custody order unless a noncustodial parent shows both that modification

       is in the best interest of the child, and there has been a substantial change in one

       or more of the factors listed under Indiana Code Section 31-17-2-8. Those

       factors are:

               (1) The age and sex of the child.

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 13 of 26
        (2) The wishes of the child’s parent or 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 parent or parents;


                 (B) the child’s sibling; and


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


        (5) The child’s adjustment to the child’s:


                 (A) home;


                 (B) school; and


                 (C) 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 8.5(b) of this chapter.




Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 14 of 26
       A parent seeking modification of custody bears the burden of proving that the

       existing custody order should be altered. Steele-Giri, 51 N.E.3d at 124 (citing

       Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)). “Indeed, this ‘more stringent

       standard’ is required to support a change in custody, as opposed to an initial

       custody determination where there is no presumption for either parent because

       ‘permanence and stability are considered best for the welfare and happiness of

       the child.’” Id. (quoting Lamb, 600 N.E.2d at 98).


[22]   When evaluating whether a change of circumstances has occurred that is

       substantial enough to warrant a modification of custody, the context of the

       whole environment must be judged, “‘and the effect on the child is what renders

       a change substantial or inconsequential.’” Sutton, 16 N.E.3d at 485 (quoting

       Jarrell v. Jarrell, 5 N.E.3d 1186, 1193 (Ind. Ct. App. 2014), trans. denied).

       Generally, cooperation or lack thereof with custody and parenting time orders

       is not an appropriate basis for modifying custody. It is improper to utilize a

       custody modification to punish a parent for noncompliance with a custody

       order. In re Paternity of M.P.M.W., 908 N.E.2d 1205, 1208 (Ind. Ct. App. 2009).

       “However, ‘[i]f one parent can demonstrate that the other has committed

       misconduct so egregious that it places a child’s mental and physical welfare at

       stake, the trial court may modify the custody order.’” Maddux v. Maddux, 40

       N.E.3d 971, 979 (Ind. Ct. App. 2015) (quoting Hanson v. Spolnik, 685 N.E.2d

       71, 78 (Ind. Ct. App. 1997), trans. denied).


[23]   Here, the primary reasons identified by the trial court for modifying custody in

       favor of Mother were Father’s denial of some of Mother’s parenting time in

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 15 of 26
       2013 and 2014 and, relatedly, Father’s allegation that Best had assaulted A.M.

       The trial court found that allegation to be fabricated. Father does not dispute

       that, during the 2013-2014 time period, Mother was entitled under the

       Parenting Time Guidelines to a total of fifteen weeks of parenting time but

       received only ten weeks total. Father does not concede that he fabricated the

       assault allegation against Best. Because Mother denied that it occurred, we

       cannot second-guess the trial court’s determination that it did not. The

       question, therefore, is whether this evidence is enough to warrant a

       modification of custody. We conclude it is not.


[24]   We first note that the trial court made no finding as to what circumstance

       substantially changed under Indiana Code Section 31-17-2-8 that warranted a

       modification of custody. It is true that in some cases, a custodial parent’s

       interference with a noncustodial parent’s visitation rights may be of such a

       degree that it represents a substantial change in the parties’ relationship and the

       parties’ relationship with their children under subsection (4) of Indiana Code

       Section 31-17-2-8. See In re Paternity of J.T., 988 N.E.2d 398, 400-01 (Ind. Ct.

       App. 2013); In re Marriage of Kenda & Pleskovic, 873 N.E.2d 729, 738-39 (Ind. Ct.

       App. 2007), trans. denied. On the other hand, it is well-settled that in order to

       support a modification of custody, such interference must be continuing and

       substantial. See J.T., 988 N.E.2d at 400-01 (noting Mother “engaged in

       continuing pattern of denial of parenting to time to [Father]” for over two years

       and despite multiple contempt petitions against Mother); Kenda, 873 N.E.2d at

       738 (noting Mother “desired to prohibit Father from exercising parenting time


       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 16 of 26
       that was not supervised by her, which resulted in Father being completely cut

       off from having a relationship with his son”; Mother also moved to England

       with child without prior permission). And, while we accept that any

       interference with a noncustodial parent’s visitation rights “is a serious matter

       and in some cases may be a factor relevant to the issues of both a change in

       circumstances and the child’s best interests,” not all such interference justifies a

       modification of custody. Johnson v. Nation, 615 N.E.2d 141, 147 (Ind. Ct. App.

       1993). In Johnson, we reversed a modification of custody that had been based

       upon the custodial father’s purported interference with the mother’s parenting

       time, where the mother nonetheless was able to have “regular, meaningful

       visitation with her children” and there was no evidence that the father’s

       interference “had a harmful physical or emotional effect on the children.” Id. at

       147.


[25]   In the present case, we first observe that, to the extent Mother and Father have

       a highly-acrimonious relationship when it comes to A.M., that is not a new or

       recent development or a changed circumstance. Indeed, the primary reason

       Father was granted custody of A.M. in the original dissolution decree was

       because of Mother’s complete denial of parenting time to Father for long

       periods of time while the dissolution was pending. Mother disregarded an

       August 2011 order for Father to have immediate custody of A.M. until June

       2012, at which time the trial court anticipated that law enforcement assistance




       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 17 of 26
       would be needed to turn A.M. over to Father’s care. 5 That the parties have

       proven to be unable to cooperate when it comes to A.M. is a very unfortunate

       circumstance, but not a new or changed one.


[26]   It also is difficult to say that Father’s interference with Mother’s parenting time

       in 2013 and 2014 denied her all regular and meaningful visitation with A.M.

       Father’s actions deprived Mother of five out of the fifteen weeks of parenting

       time to which she was entitled. That is not ideal. It was not, however, a

       complete cessation of the relationship between Mother and A.M. Mother never

       sought to hold Father in contempt for not granting her parenting time. And,

       beginning in October 2014, regular parenting time between Mother and A.M.

       had resumed. Prior to the May 2015 modification hearing, the parties had

       agreed between themselves, without the assistance of the parenting time

       coordinator, to Mother having a week of parenting time over spring break.

       Also, although Mother argues Father was attempting to avoid scheduling

       summer 2015 parenting time for Mother, the parenting time coordinator

       testified as to her understanding that the issue would be resolved at the May

       2015 hearing. In fact, after open-court discussion of the matter at the end of

       that hearing, summer 2015 parenting time was scheduled and did occur without




       5
         Under Indiana Code Section 31-17-2-21(c), a court ruling on a custody modification petition may not
       consider 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 and,
       if applicable, section 8.5 of this chapter.” Here, evidence of Mother’s pre-dissolution interference with
       Father’s parenting time is relevant to assessing whether there was a change in circumstances regarding the
       parties’ relationship.

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016                          Page 18 of 26
       any evidence of interference by Father. The parenting time coordinator also

       indicated that prior difficulties in scheduling parenting time with Father had

       greatly lessened since Father’s retention of a new attorney and Father’s request

       that the coordinator communicate directly with him and not with counsel.


[27]   We additionally note that there is a lack of evidence that Father’s interference

       with Mother’s parenting time had any detrimental effect upon A.M.’s mental or

       physical health. There is no evidence that A.M.’s relationship with Mother was

       substantially affected, beyond whatever normal stressors may occur whenever

       divorced parents fight over child custody. Cf. Cunningham v. Cunningham, 787

       N.E.2d 930, 936 (Ind. Ct. App. 2003) (affirming denial of modification petition

       and while acknowledging children felt stress caused by divorce and move and

       living with new stepfamily, there was no evidence “that the children have

       suffered any additional stress than any other child might feel in those

       circumstances”). Additionally, to the extent Mother argues Father attempted to

       instill fear of Best in A.M., by Mother’s own account Father ultimately failed in

       that regard. Mother claims that A.M. had no fear of Best and that this was

       reflected during the recorded interview at Mother’s attorney’s office.

       Furthermore, to the extent Father claimed in late 2013 and early 2014 that Best

       assaulted A.M., there is no evidence that he has continued to repeat such claims

       or did so in front of A.M. at any time for over a year prior to the modification

       hearing. In sum, we cannot say there is evidence of a substantial change in

       circumstances under Indiana Code Section 31-17-2-8 such as would support a

       modification of custody.


       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 19 of 26
[28]   Perhaps more crucially, however, we conclude there is scant evidence that

       modification of custody was in A.M.’s best interests. “Courts certainly should

       not reward parents who refuse to cooperate in the court’s efforts to reunify a

       child with another parent.” Kirk, 770 N.E.2d at 308. But, when deciding

       whether to modify custody, courts must bear in mind:

               “[C]hildren will normally prosper and mature . . . under a
               standard of consistency better than they will otherwise, even
               though at any given point in time the noncustodial parent may
               appear capable of offering ‘better’ surroundings, either emotional
               or physical. In the larger sense, the stability in surroundings,
               schooling, relationships, authority figures, daily routine,
               economic circumstances, etc. constitute a substantial determinant
               in assessing the statutorily enumerated factors relevant to a
               determination of the best interests of the child.”


       Id. (quoting Kuiper v. Anderson, 634 N.E.2d 556, 558 (Ind. Ct. App. 1994)).


[29]   Here, Father presented uncontradicted evidence of his housing and A.M.’s

       current positive living situation, her schooling, her friendships, her church

       attendance, her extra-curricular activities, and her medical and dental care.

       There was no evidence that A.M. has been anything but well-cared for and

       well-adjusted while in Father’s custody, as confirmed by several witnesses.

       Mother does not dispute that. Very importantly the GAL recommended




       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 20 of 26
       A.M.’s continued custody with Father.6 However, the trial court seemed to

       give little consideration to this evidence in its findings and order.


[30]   By contrast, Mother presented no evidence whatsoever as to what kind of

       situation A.M. would be moving into, hundreds of miles away from her current

       home, school, friends, church, family, and extracurricular activities, and greatly

       disrupting A.M.’s daily routine. There was no evidence of nor findings

       regarding Mother’s current housing situation. There was no evidence of nor

       findings regarding where A.M. would go to school or the type of neighborhood

       in which she would live or what kind of extra-curricular activities might be

       available to her. And, even if we accept that Best never assaulted A.M. and

       that she was not afraid of him, the fact remains that he was convicted of felony

       battery resulting in serious bodily injury—not in the distant past, but during the

       course of these proceedings. This should have at least been cause for concern in

       assessing whether it would be in A.M.’s best interests to live with Mother,

       which also meant living with Best. The trial court did not mention Best’s

       battery conviction in its findings or order.


[31]   In light of the uncontradicted evidence of A.M.’s positive living situation with

       Father, the complete dearth of evidence of what A.M.’s living situation with




       6
        Mother notes that the GAL’s report was filed over a year before the modification hearing, and the GAL
       could not testify with certainty that her recommendation would be the same because she had not interacted
       with the parties and A.M. since that time. However, given that Mother was the one seeking to modify
       custody, it should have been her burden to demonstrate that something happened in the year since the report
       had been filed that could or would have changed the GAL’s recommendation.

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016                  Page 21 of 26
       Mother would be like and which move would involve completely uprooting her

       from her current community, and the lack of evidence that Father’s interference

       with Mother’s visitation has substantially or continually impacted Mother’s

       relationship with A.M. or affected A.M.’s mental or physical health, there is

       insufficient evidence that modifying custody is in A.M.’s best interests. We are

       left to speculate in what sort of situation the child will find herself.


[32]   We must also address Mother’s claim that modification of custody was

       somehow supported by Father’s failure to fully provide his current address and

       records related to A.M., such as dental, doctor, counseling, 7 and educational

       records. Obviously, in the spirit of cooperation and sound parenting after

       divorce, Father should have been providing such information, especially after

       being ordered to do so. However, we do note that Father had sole legal custody

       of A.M. As such, Father possessed the authority to determine A.M.’s

       upbringing, including for her education, health care, and religious training. See

       I.C. § 31-17-2-17; Finnerty v. Clutter, 917 N.E.2d 154, 156 (Ind. Ct. App. 2009),

       trans. denied. Thus, Father’s failure to provide these type of records, while

       disturbing, did not arise in a situation in which he and Mother shared joint legal

       custody.




       7
        The record reveals that it was Hornsby herself, not Father, who resisted Mother’s requests for A.M.’s
       counseling records. Hornsby asserted that the records were confidential and that she was representing
       A.M.’s interests only in refusing to release them.

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016                   Page 22 of 26
[33]   Father undoubtedly was not exemplary in his conduct, but being difficult does

       not and legally cannot support a change in custody. This case presents a rare

       example in which we conclude it is necessary to reverse a trial court’s decision

       regarding child custody. However, we cannot allow the custody modification

       to stand where there is a lack of evidence to support that ruling.


                                                II. Attorney Fees

[34]   Father also challenges the trial court’s order requiring him to pay $7,500.00

       towards Mother’s attorney fees. We review a decision to award attorney fees

       and the amount of any award for an abuse of discretion. Allen v. Proksch, 832

       N.E.2d 1080, 1102 (Ind. Ct. App. 2005). The trial court relied on two statutes

       in awarding fees. The first statute is the General Recovery Statute, Indiana

       Code Section 34-52-1-1(b), which applies in all civil cases and permits an award

       of attorney fees if either party: “(1) brought the action or defense on a claim or

       defense that is frivolous, unreasonable, or groundless; (2) continued to litigate

       the action or defense after the party’s claim or defense clearly became frivolous,

       unreasonable, or groundless; or (3) litigated the action in bad faith.” This

       statute, however, expressly predicates a possible award of attorney fees only to

       a “prevailing party.” K.S. v. B.W., 954 N.E.2d 1050, 1053 (Ind. Ct. App. 2011),

       trans. denied. Ultimately, given our holding that the trial court should not have

       granted Mother’s petition to modify custody, she cannot be deemed a

       “prevailing party” under the General Recovery Statute.


[35]   The second statute is Indiana Code Section 31-17-7-1, which permits a court to

       periodically order one parent to pay reasonable attorney fees to the other parent
       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 23 of 26
       related to maintaining or defending custody and parenting time proceedings. In

       order to award fees under this statute, a trial court must consider the parties’

       resources, their economic condition, their ability to engage in gainful

       employment and earn adequate income, and any other factors bearing on the

       reasonableness of the award. Allen, 832 N.E.2d at 1102. “Misconduct that

       directly results in additional litigation expenses may properly be taken into

       account in the trial court’s decision to award attorney fees.” Id. If a trial court

       does not receive evidence regarding the parties’ respective resources, economic

       condition, income and ability to work, and other factors related to the

       reasonableness of an award, it is an abuse of discretion to award fees under

       Section 31-17-7-1. Id.


[36]   Here, there was little evidence presented regarding the parties’ respective

       economic conditions. The only evidence presented was that Mother earns $15

       per hour at her job, while Father earns $17 per hour. Mother did not testify as

       to the number of hours she worked. Mother has not presented evidence of a

       significant disparity in income that would justify shifting the payment of

       attorney fees from Father to Mother. Additionally, there was no evidence of

       savings or other assets the parties may have available to them, or if any exist at

       all. We also note that Father’s 2013 contempt petition asserting Mother had

       failed to pay him attorney fees, a judgment, and child support owed under the

       original dissolution decree was never ruled upon nor mentioned by the trial

       court. This would be a relevant consideration in assessing the parties’

       respective situations. Given the lack of any evidence of a significant economic


       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 24 of 26
       disparity between the parties or that the trial court considered the parties’

       respective economic resources, we conclude it was an abuse of discretion to

       require Father to pay $7,500.00 towards Mother’s attorney fees. See id.

       (reversing award of attorney fees under Section 31-17-7-1 where there was no

       indication trial court considered parties’ resources, economic condition, and

       other factors bearing on the reasonableness of the award). Furthermore, as for

       Father’s alleged misconduct related to parenting time interference, the evidence

       presented by Mother does not differentiate between fees related to such alleged

       misconduct and fees generally related to her motion to modify custody. We

       decline to affirm the award of fees on this basis. See J.M. v. N.M., 844 N.E.2d

       590, 604 (Ind. Ct. App. 2006) (affirming award of attorney fees related to

       misconduct where the award was “limited to those fees incurred by Mother

       based on specific unreasonable actions by Father that caused Mother

       ‘additional litigation expenses’”), trans. denied.


                                                  Conclusion
[37]   The trial court clearly erred in granting Mother’s petition to modify custody, as

       there was insufficient evidence of a substantial change in circumstances

       justifying modification or that modification was in A.M.’s best interests. We

       reverse the modification of custody and remand for primary physical custody

       and sole legal custody of A.M. to be returned to Father, with parenting time for




       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016   Page 25 of 26
       Mother in accordance with the Indiana Parenting Time Guidelines.8

       Additionally, the trial court abused its discretion in awarding attorney fees to

       Mother, and we reverse that award as well.


[38]   Reversed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       8
        We remind the parties and trial court that no action should be taken in reliance on this opinion until it is
       certified as final under Indiana Appellate Rule 65(E).

       Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016                       Page 26 of 26
