MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      FILED
court except for the purpose of establishing                             Jul 17 2020, 8:51 am
the defense of res judicata, collateral                                        CLERK
estoppel, or the law of the case.                                         Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Bryan L. Ciyou                                           Cynthia A. Marcus
Alexander N. Moseley                                     Marcus Law Firm, LLC
Ciyou and Dixon, P.C.                                    Carmel, Indiana
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Belcher,                                          July 17, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-DC-2959
        v.                                               Appeal from the Marion Superior
                                                         Court
Heleny Pena,                                             The Honorable Gary L. Miller,
Appellee-Petitioner.                                     Judge
                                                         The Honorable Deborah J. Shook,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D03-1901-DC-452



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020                      Page 1 of 12
                                          Case Summary
[1]   In January of 2019, Heleny Pena (“Mother”) petitioned for the dissolution of

      her marriage to Joshua Belcher (“Father”). In November of 2019, the trial court

      granted dissolution of the parties’ marriage and ordered that Mother be

      awarded primary physical custody of their child and that Father pay $3000

      towards Mother’s attorney’s fees. Father contends that the trial court’s order

      awarding Mother primary physical custody and attorney’s fees is erroneous.

      Because we disagree, we affirm.



                            Facts and Procedural History
[2]   Father and Mother were married on July 1, 2015. Father and Mother have one

      child J.B. (born March 1, 2016). Father has two other children from previous

      relationships, S.M. and C.F. On January 4, 2019, Mother petitioned for

      dissolution of the parties’ marriage. On November 7, 2019, the trial court held

      an evidentiary hearing regarding Mother’s petition. Following the hearing, the

      trial court found, in relevant part, the following:


              6. [Father] exercised parenting time infrequently prior to the
              filing of the Verified Petition for Dissolution[.]

              7. The parties resided together after the birth of [J.B.,] and
              [Mother] provided all care for [J.B.] [Mother] left the marital
              residence with [J.B.] in April of 2016 and moved in with her
              parents.

              8. [Mother] and [J.B.] enjoy a close mother-son relationship and
              she provides a happy, caring, present, nurturing environment.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020   Page 2 of 12
        [Mother] does not believe that [Father] has shown he can provide
        this for [J.B.]

        9. [Father] engaged in a suicide attempt[.]

        […]

        13. [Mother] seeks to retain physical custody of [J.B.] and
        believes the parties should continue to follow the parenting time
        schedule as set out in the parties’ mediated Preliminary
        Agreement. [Father] also requested physical custody of [J.B.]
        Stability of the child is important. The Court finds that [Mother]
        has been the primary caretaker for [J.B.]

        14. [Mother] and [Father] agreed that the child support arrearage
        would be retroactive to the date of filing of the Verified Petition
        for Dissolution of Marriage and that [Father’s] year to date
        income would be used to calculate [Father’s] income.

        15. The Court finds that [Mother’s] income is $760 per week and
        [Father’s] income is $1,715.62 per week. The Court also finds it
        is appropriate to impute income to [Mother] as she resides rent
        free in her parents’ home. The Court imputes an additional
        $100.00 per week for a total income for [Mother] of $860.00.

        16. The Court finds that [J.B.] has been attending his present
        daycare since March of 2019. The weekly cost of daycare for
        [J.B.] is $300 per week. [Mother] testified that she was concerned
        about the curriculum in [J.B.’s] previous daycare and that [J.B.]
        is thriving at his present daycare. [Mother] had concerns about
        who was providing transportation for [J.B.] and [Mother]
        requested that no third parties shall be utilized for transportation
        of [J.B.] to and from daycare. [Father] testified that the daycare
        should be changed as the present daycare is too expensive and he
        is concerned about the curriculum. [Mother] made the decision
        to move [J.B.] to his present daycare as at his prior day care he
        was not showing the appropriate developmental growth for his
        age. Also, there was a lack of communication between the staff. [
        … ] Whenever any emergencies came up, with [J.B.,] [Mother]
Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020   Page 3 of 12
        was the only one taking off from work to get [J.B. and Father]
        claims he will have flexibility in his schedule in the future.

        17. Prior to September of 2019 when the Income Withholding
        Order as initiated, since the date of filing of the Verified Petition
        for Dissolution of Marriage [Father] has paid $100 in child
        support.

        18. [Mother] has been [] supporting [J.B.] since the date of the
        filing of the Verified Petition for Dissolution of Marriage and that
        it has caused her financial hardship. [Father] is doing much
        better financially this year. [Mother] requests an attorney fee
        award in the amount of $6,600.

        19. [Mother] requested to have the tax exemption for [J.B.] in all
        years. [Father] requested to alternate the exemptions and stated
        that [Mother] could have the exemptions in 2019.

        20. [Father] acknowledged that he earned a great deal of
        overtime earlier this year due to personnel issues and stated that
        he will not be incurring overtime and bonuses in the future.
        During the marriage [Father] has frequently and consistently
        worked overtime. [Mother] requested that the parties exchange
        W2’s no later than January 31st of each year in order to
        recalculate a child support worksheet based upon total income
        for the prior year and do a “true up” of child support and that
        any underpayment or overpayment would be paid by February
        10th of each year.

        21. The Court finds that [J.B.] has engaged in soccer and
        [Mother] requested that the parties divide agreed upon
        extracurricular activities by percentage of income.

        22. The Court finds that [Mother] requested that the parties each
        list [J.B.] as a beneficiary on employer provided life insurance.




Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020    Page 4 of 12
      Appellant’s App. Vol. II pp. 9–11. Based on its findings, the trial court ordered,

      inter alia, that Mother be awarded primary physical custody of J.B. and that

      Father pay Mother’s attorney’s fees in the amount of $3000.



                                 Discussion and Decision
[3]   Pursuant to Mother’s request under Indiana Trial Rule 52(A), the trial court

      entered findings of fact and conclusions of law. Our standard of review is as

      follows:


              [W]e must first determine whether the record supports the factual
              findings, and then whether the findings support the judgment. On
              appeal, we will not set aside the findings or judgment unless they
              are clearly erroneous, and due regard shall be given to the
              opportunity of the trial court to judge the credibility of witnesses.
              We therefore consider only the evidence favorable to the
              judgment and the reasonable inferences flowing therefrom, and
              we will neither reweigh the evidence nor assess witness
              credibility. A judgment is clearly erroneous when there is no
              evidence to support the findings, the findings do not support the
              judgment, or the trial court applies the wrong legal standard to
              properly found facts.


      T.L. v. J.L., 950 N.E.2d 779, 783 (Ind. Ct. App. 2011) (quoting M.S. v. C.S., 938

      N.E.2d 278, 281–82 (Ind. Ct. App. 2010). “To the extent that the judgment is

      based on erroneous findings, those findings are superfluous and are not fatal to

      the judgment if the remaining valid findings and conclusions support the

      judgment.” Lasater v. Lasater, 809 N.E.2d 380, 397 (Ind. Ct. App. 2004). We

      may affirm the trial court on any legal theory supported by the factual findings


      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020   Page 5 of 12
      even if the trial court used a different legal theory. T.L., 950 N.E.2d at 783.

      “Before affirming on a legal theory supported by the findings but not espoused

      by the trial court, we should be confident that our affirmance is consistent with

      all of the trial court’s factual findings and inferences reasonable drawn

      therefrom.” Id. at 783–84.


[4]   “In conjunction with the Trial Rule 52 standard, there is a longstanding policy

      that appellate courts should defer to the determination of trial courts in family

      law matters.” D.G. v. S.G., 82 N.E.3d 342, 348 (Ind. Ct. App. 2017), trans.

      denied. The Indiana Supreme Court has emphasized this deference, stating that


              [a]ppellate deference to the determinations of our trial court
              judges, especially in domestic relations matters, is warranted
              because of their unique, direct interactions with the parties face-
              to-face, often over an extended period of time. Thus enabled to
              assess credibility and character through both factual testimony
              and intuitive discernment, our trial judges are in a superior
              position to ascertain information and apply common sense,
              particularly in the determination of the best interests of the
              involved children.


      Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020   Page 6 of 12
                                           I. Factual Findings
[5]   Father contends that factual findings 6–12, 16, and 18 are clearly erroneous.1

      Our review of the record reveals no evidence to support the following findings

      and partial findings:


                    • Finding 6: [Mother] offered parenting time with [J.B.] but
                      [Father] would not take the time that was offered, and
                      used his work hours as an excuse.

                    • Finding 8: [Mother] expressed frustration that [Father]
                      doesn’t allow her to speak with [J.B.] and ignores her
                      inquires to [Father] regarding [J.B.] when [J.B.] is in his
                      care. [Mother] also requested that when the parties need
                      to exchange [J.B.] for parenting time, that this be done at
                      a neutral location.

                    • Finding 9: [Father] has firearm visibility in his home.

                    • Finding 10: [Mother] is concerned about the minor child’s
                      fascination with guns; his aggressive behavior and
                      expressive behavior and knowledge of guns when
                      returning home after being with [Father.] [J.B.] is not
                      aggressive while he is in [Mother’s] care.

                    • Finding 11: [Father] did not call [J.B.] and did not make
                      attempts to see him for major holidays such as birthdays,
                      Father’s Day, or Christmas until the Verified Petition for
                      Dissolution of Marriage was filed.




      1
        Because the trial court’s findings do not specifically reference Indiana Code section 31-17-2-8, Father also
      contends that the trial court’s findings are clearly erroneous. While the trial court’s findings do not
      specifically delineate the best-interests factors listed in Indiana Code section 31-17-2-8, our review of the
      findings firmly convinces us that these factors were considered and used by the trial court in its determination
      of physical custody of J.B.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020                       Page 7 of 12
                    • Finding 12: When the parties lived together, and [Father]
                      had parenting time with [C.F.,] his older daughter, he was
                      never around aside from pick up and drop off time.
                      Whenever [Mother] was unable to watch [C.F.,] [Father]
                      dropped her off to his father’s house.

                    • Finding 16: [Mother] made the decision to move [J.B.] to
                      his current daycare without [Father’s] assistance as he was
                      never present nor showed interest in knowing about
                      [J.B.’s] day to day routine or development.

                    • Finding 18: [Mother] has been solely supporting [J.B.]
                      since the date of the filing of the Verified Petition for
                      Dissolution of Marriage[.]2

      Because we conclude that the above-stated findings and partial findings are

      clearly erroneous, we will not consider them in our evaluation of Father’s

      remaining claims.


[6]   Suffice it to say that our review of the record, however, does reveal evidence to

      support finding 7 and the remaining parts of findings 6–9, 11, 16, and 18.

      Father’s arguments regarding these findings are merely an invitation to reweigh

      the evidence and judge witness credibility, which we will not do. T.L., 950

      N.E.2d at 783.




      2
        With regard to finding 18, while Mother did provide a vast majority of the support for J.B. prior to
      petitioning for dissolution of marriage, Father did provided Mother with $100 and J.B. with medical
      insurance and therefore she did not solely support J.B.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020                       Page 8 of 12
                                       II. Physical Custody
[7]   That said, Father contends that the trial court erred by awarding Mother

      primary physical custody of J.B. Both parents are presumed equally entitled to

      custody in an initial custody determination, and there is no presumption

      favoring either. Hamilton v. Hamilton, 103 N.E.3d 690, 694 (Ind. Ct. App. 2018),

      trans. denied. The trial court “shall determine custody and enter a custody order

      in accordance with the best interests of the child.” Ind. Code § 31-17-2-8. In

      determining the best interests of the child, the trial court shall consider all

      relevant factors, including:


              (1) The age and sex of the child.

              (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 interest.

              (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.

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020   Page 9 of 12
              (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.

              (9) A designation in a power of attorney of:

                       (A) the child’s parent; or

                       (B) a person found to be a de facto custodian of the child.

      Id. We review a trial court’s custody decisions only for an abuse of discretion.

      Hamilton, 103 N.E.3d at 695.


[8]   Here, the record indicates that Mother has been J.B.’s primary caregiver his

      entire life. Except for approximately the first week of his life, J.B. has lived with

      Mother at her parents’ residence. Mother and J.B. have a close mother–son

      relationship, and she has provided him with a happy, caring, and nurturing

      upbringing. Mother enrolled J.B. in a new daycare, which appears to be

      meeting his developmental needs. Moreover, up until Mother filed for

      dissolution of marriage, except for $100 and medical insurance, she has been

      J.B.’s sole provider, providing him with food, clothing, and taking time off from

      work when he was sick. Further, for nearly the first three years of J.B.’s life,

      Father exercised parenting time infrequently, if at all. Father has also attempted

      suicide. Even without considering the trial court’s few findings that were

      unsupported by the record, we cannot say it abused its discretion by awarding

      Mother primary physical custody of J.B. See Anselm v. Anselm, 146 N.E.3d 1042,

      1047 (Ind. Ct. App. 2020) (concluding that the trial court did not abuse its

      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020   Page 10 of 12
      discretion by awarding Mother primary physical custody after it found Mother

      to be the children’s primary caregiver and a need for the children to have a

      consistent routine).


                                        III. Attorney’s Fees
[9]   Father contends that the trial court erroneously ordered him to pay $3000

      toward Mother’s attorney’s fees. “Pursuant to Indiana Code section 31-15-10-1,

      a trial court may order a party in a dissolution proceeding to pay a reasonable

      amount of the other party’s attorney’s fees.” Eads v. Eads, 114 N.E.3d 868, 879

      (Ind. Ct. App. 2018).


              In determining whether to award attorney’s fees in a dissolution
              proceeding, trial courts should consider the parties’ resources,
              their economic condition, their ability to engage in gainful
              employment and earn income, and other factors bearing on the
              reasonableness of the award. A party’s misconduct that directly
              results in additional litigation expenses may also be considered.
              Consideration of these factors promotes the legislative purpose
              behind the award of attorney’s fees, which is to ensure that a
              party who would not otherwise be able to afford an attorney is
              able to retain representation. When one party is in a superior
              position to pay fees over the other party, an award is proper.


      Id. (cleaned up). A trial court has broad discretion in awarding attorney’s fees.

      Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App. 2015). “Reversal is proper

      only where the trial court’s award is clearly against the logic and effect of the

      facts and circumstances before the court.” Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020   Page 11 of 12
[10]   The trial court found Mother’s weekly income to be $860.00 and Father’s to be

       $1715.62, nearly double that of Mother’s. We note that Father did not begin

       paying child support until September of 2019, leaving Mother essentially solely

       responsible for providing for J.B. up until nearly a month before this matter was

       resolved. The trial court also found that being J.B.’s sole provider for nearly his

       entire life has caused Mother financial hardship. Given Father’s superior

       position to pay attorney’s fees, we cannot say the trial court abused its

       discretion in this regard.


[11]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-DC-2959| July 17, 2020   Page 12 of 12
