         MEMORANDUM DECISION
         Pursuant to Ind. Appellate Rule 65(D), this                  Sep 25 2015, 8:41 am
         Memorandum Decision shall not be regarded as
         precedent or cited before any court except for the
         purpose of establishing the defense of res judicata,
         collateral estoppel, or the law of the case.



         ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
         Scott C. Quick                                           Denise F. Hayden
         Indianapolis, Indiana                                    Indianapolis, Indiana



                                                      IN THE
             COURT OF APPEALS OF INDIANA

         Angel Schoettle,                                         September 25, 2015

         Appellant-Respondent,                                    Court of Appeals Case No.
                                                                  49A04-1501-DR-40
                 v.                                               Appeal from the Marion Superior
                                                                  Court

         Chad Schoettle,                                          Trial Court Cause No.
                                                                  49D03-1308-DR-30265
         Appellee-Petitioner.
                                                                  The Honorable Patrick J. McCarty,
                                                                  Judge




         Pyle, Judge.


                                            Statement of the Case
[1]   Appellant/Respondent, Angel Schoettle (“Mother”), appeals the trial court’s

      award of primary physical and sole legal custody of her minor daughters, H.S. and

      A.S., to Appellee/Petitioner, Chad Schoettle (“Father”), pursuant to the trial

      court’s order dissolving their marriage. On appeal, she argues that the trial court

         Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 1 of 19
      abused its discretion by awarding Father primary physical and sole legal custody.

      Her argument has three components: that the trial court abused its discretion by

      (1) failing to enter findings of fact and conclusions supporting its award of custody

      to Father; (2) determining that it would be in the children’s best interests for Father

      to have custody; and (3) awarding Father sole legal custody as opposed to joint

      custody. Because we conclude that the trial court was not required to enter

      findings of fact and conclusions of law and because there was evidence to support

      the trial court’s determination of the best interests of the children and to support its

      award of sole legal custody, we affirm.


[2]   We affirm.


                                                            Issue
                  Whether the trial court abused its discretion by awarding Father
                  primary physical and sole legal custody.

                                                           Facts1
[3]   Mother and Father (collectively, “the parents”) met in April of 2008 and married

      in May of 2008. They had two daughters together, H.S. who was born in January

      of 2009 and A.S. who was born in August of 2011. Mother also had another




         1
           We note that the “Statement of Facts” in Mother’s brief is argumentative. We remind Mother’s counsel
         that the statement of facts section of an appellant’s brief shall “describe the facts relevant to the issues
         presented for review” but shall not contain subjective argument. Ind. Appellate Rule 46(A)(6); see also J.C. v.
         Ind. Dep’t of Child Services, 3 N.E.3d 980, 981 n.1 (Ind. Ct. App. 2013).

         Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015            Page 2 of 19
      daughter from a prior marriage, E.M., who was born in 2001 and resided with the

      parents for a portion of their marriage.


[4]   In April or May 2013, Mother left the parents’ residence and began a relationship

      with Scott Bodenhamer (“Bodenhamer”). That July, she and her three daughters

      moved in with Bodenhamer. On August 8, 2013, Father filed a petition for the

      dissolution of their marriage. He also filed a petition requesting preliminary relief

      in which he requested custody of H.S. and A.S, who were then four years old and

      turning two years old, respectively. In response, Mother filed a motion for an ex

      parte protective order against Father on behalf of herself and the children, and she

      then refused him parenting time for five weeks. During that time, Mother and

      Father exchanged the following text messages:

                 [Father:] Can I talk to my girls?
                 [Mother:] Are you suing for custody?
                 [Mother:] Sad she has to miss her party. Oh well.
                 [Mother:] Shame you have to take my kids. They would like to
                 talk to you.
                 [Father:] I would like to have the girls this weekend, so she
                 doesn’t have to miss her party. And, they can call me anytime
                 they want to talk to me.
                 [Mother:] Call off your custody battle. Then[,] [you are] fine.
                                                  *        *       *
                 [Father:] Who is watching the girls while u r working this
                 weekend? Since [you are] not allowing me to have them.
                 [Mother:] Their grandparents and Becca.
                 [Mother:] Drop the stupid case and you can have them.


         Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 3 of 19
      (Petitioner’s Ex. 3 at 5-7) (grammar in original). Mother later stated that she had

      denied Father parenting time during this period due to his “threatening demeanor

      at parenting time exchanges.” (Tr. 10).


[5]   On September 11, 2013, the trial court conducted a provisional hearing on both the

      protective order and the petition for dissolution. At the hearing, the parents

      entered into an agreed entry dismissing the protective order and establishing that

      the parents would have temporary joint legal custody, and Mother would have

      temporary primary physical custody, subject to Father’s parenting time. The trial

      court also referred the parents to the Domestic Relations Counseling Bureau

      (“DRCB”) for evaluation of Father’s custody request.


[6]   An evaluator with the DRCB, Dwana Heiney (“Heiney”), attempted to evaluate

      the parents in November 2013. She interviewed them on November 8, 2013, but

      submitted a report two days later concluding that she was unable to provide a

      recommendation because Mother had not been compliant with the evaluation

      process. Specifically, Mother had failed to submit a required autobiography;

      refused to pay her assessment fee; refused to complete the Minnesota Multi-Phasic

      Inventory II (“MMPI-2”), which is a test that examines a person’s emotional and

      psychological makeup; and failed to bring the children and Bodenhamer, who was




         Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 4 of 19
      living with her at the time, to be interviewed. Based on the evaluation, Heiney

      referred the parents to receive co-parenting classes.2


[7]   On February 5, 2014, Father filed a petition for contempt, alleging that Mother had

      not complied with the DRCB. The trial court conducted a hearing on the petition

      on February 21, 2014, and ordered Mother to cooperate. As a result, Mother and

      Father again met with a DRCB evaluator. The second evaluator, Diane Elliott

      (“Elliott”), interviewed Mother, Father, and paternal grandmother and received

      and read letters from maternal grandmother and other individuals who knew

      Mother. She also administered the MMPI-2 to both of the parents. Mother’s

      MMPI-2 results indicated that she might “display verbal and physical aggressions

      at times and may use aggression in an attempt to dominate and control others, and

      may enjoy intimidating others.” (Tr. 11). Father’s MMPI-2 did not indicate that

      he had a problem with anger or aggression, but it did indicate that he might have

      difficulty recognizing when he has negative emotions.


[8]   Mother’s friend, Donnie Davidson (“Davidson”), wrote to the DRCB on Mother’s

      behalf and alleged that he had seen Father drinking and driving with the children

      in the car. Elliott asked Father about his use of alcohol, but he denied drinking

      and driving. The DRCB also performed a criminal history check to see if he had a




         2
          Another evaluator with the DRCB later explained that co-parenting classes are intended “to assist the
         mother and father in learning how to better communicate with each other, take any kind of anger or
         emotional component out of that, and essentially form a business-like relationship to co-parent their
         children.” (Tr. 14).

         Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015         Page 5 of 19
       history of drinking and driving, but he did not. The DRCB did not find any

       evidence to substantiate Davidson’s allegations.


[9]    In May 2014, Father’s mother (“Paternal Grandmother”) filed a report with child

       protective services (“CPS”) alleging that Mother’s daughter from her previous

       marriage, E.M., had sexually molested H.S. Neither Father nor Paternal

       Grandmother discussed the matter with Mother before Paternal Grandmother filed

       the report. Ultimately, CPS found that the allegations were unsubstantiated after it

       conducted an investigation. However, for the month following the report, Mother

       refused to speak with Father on the phone and would only interact with him

       through e-mail on a “need-to-know basis.” (Tr. 38).


[10]   On June 25, 2014, Elliott submitted her DRCB report, which was based on her

       interviews and evaluations. In the report, she concluded that a joint custody

       arrangement was not feasible due to the parents’ inability to co-parent. She

       recommended that Father have custody because it “appeared that he would be

       more likely to support the other parent’s relationship . . . with the child[ren],

       appeared to offer the child[ren] a stable home environment, and to provide the

       children with appropriate basic care.” (Tr. 16). She later testified that she had

       gotten the impression that when it came to joint legal custody issues, Mother

       disregarded Father and wanted to make unilateral decisions.


[11]   Another issue that Elliott discussed in her report was Mother’s actions regarding

       H.S.’s schooling. Father enrolled H.S. in first grade at St. Mark Catholic School

       (“St. Mark”) in August 2013, and he paid a deposit to the school. He also attended


          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 6 of 19
       a meeting with other school parents and the principal before school started.

       However, he later discovered that Mother had moved to the Northwest side of

       Indianapolis, taken H.S. out of St. Mark, and enrolled her a week late at Cardinal

       Elementary School (“Cardinal”) in Brownsburg without consulting him. On her

       application for Cardinal, Mother had listed Bodenhamer as H.S.’s stepfather, even

       though she was not married to him.


[12]   Shortly after H.S. began classes at Cardinal, the school told Mother that it would

       have to request that H.S. leave the school because she had not received her

       required immunizations. As a result, Mother took H.S. to be vaccinated.

       However, Cardinal still asked H.S. to leave because it discovered that Mother did

       not live in the Brownsburg school system and had used a false address to enroll

       H.S. there.


[13]   Subsequently, Father talked to Mother, and Mother agreed to enroll H.S. in St.

       Malachy Parish School (“St. Malachy”), a Catholic school, because it was

       important to Father that H.S. receive a Catholic education. Mother agreed but did

       not list Father on the application when she enrolled H.S. at St. Malachy. Then,

       around November of 2014, St. Malachy asked H.S. to leave because she was not

       conforming to the school’s dress code and because Mother had not paid her

       portion of H.S.’s tuition. Father had paid his portion.


[14]   After being notified of the school’s request, Father met with the principal at St.

       Malachy to try to get H.S. back into the school, and the principal agreed to re-

       admit H.S. if the parents would sign documents stating that they would comply


          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 7 of 19
       with the school’s rules. Father signed his document, but Mother did not sign hers.

       Instead, the next day Mother asked for St. Malachy to transfer H.S. to Central

       Elementary School, which was in Mother’s school district. At Central Elementary,

       Mother again omitted Father’s name from H.S.’s records. She also signed her

       name as Angel Bodenhamer on a progress report, even though she and

       Bodenhamer were not married.


[15]   As of the time of Elliott’s DRCB report, Mother was again considering

       transferring H.S. to another school, New Augusta, although she had not done so.

       New Augusta is Pike Township’s magnet school for children “who are excelling.”

       (Tr. 214). Father did not know that Mother was considering this transfer until

       Elliott informed him. As of the time of the final hearing in this case, Mother had

       transferred H.S. to New Augusta without consulting Father.


[16]   Shortly after Elliott submitted her report, the parents began the co-parenting

       classes recommended by Heiney’s first DRCB report. They were referred to an

       organization called Dyvyne Interventyon, and Regyna Yates (“Yates”) became

       their co-parenting mentor there. When Yates called the parents to set up meetings,

       Mother was uncooperative at first. She set up a couple of appointments initially

       but did not follow through. She told Yates that she did not want to start the classes

       because she was upset about Paternal Grandmother’s CPS report. Father

       cooperated with Yates from the start and began individual co-parenting sessions.

       Eventually, on July 14, 2014, Mother cooperated with Yates and began her

       individual sessions. In total, each of the parents completed eight individual

       sessions and two joint sessions. The parents were supposed to complete four joint

          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 8 of 19
       sessions, but Father refused to continue after the first two because he talked to his

       lawyer and believed he was not required to complete the last two.


[17]   Based on her interactions with Mother and Father, Yates determined that they

       needed to engage in more co-parenting and some anger management because she

       detected a lot of “hostility and tension” between them. (Tr. 50). She also noticed

       that the parents tended to focus on their past history and grievances and would

       treat co-parenting as “tit-for-tat”, meaning that each parent would justify his or her

       behaviors on the basis that the other parent had behaved similarly. (Tr. 63). For

       example, Father justified his failure to notify Mother that one of the girls had

       burned herself on the stove by pointing out that Mother had not notified him when

       one of the girls had gotten hurt riding her bicycle.


[18]   As for Father, Yates observed that it was apparent that he loved both of his

       daughters. However, she also commented that he needed to work on disciplining

       the girls at an age-appropriate level, requiring accountability, and establishing a

       routine for the girls. Father lived with Grandmother, and Yates believed that when

       the children were with him in Grandmother’s home, Grandmother parented the

       two girls more than Father did. Father told Yates that he intended to move into a

       home separate from Grandmother and was in the process of renovating the home,

       but when Yates checked it, she did not see any progress. Instead, it “appeared to

       be storage.” (Tr. 53).


[19]   At the conclusion of the parents’ co-parenting sessions, Yates determined that

       Mother was “more equipped to parent.” (Tr. 67). However, she recommended


          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 9 of 19
       continued co-parenting classes to deal with the parents’ ongoing tension. She said

       that she did not have an opinion on which parent should receive custody because

       she did not “have all the prior information.” (Tr. 50).


[20]   On October 27, 2014 and December 10, 2014, the trial court held a hearing on

       Father’s petition to dissolve the parents’ marriage and the issue of custody of the

       children. Elliott and Yates testified to the above factors that had formed the bases

       for their reports. In addition, they, Mother, and Father testified to other points of

       contention between Mother and Father. Mother alleged that Father had been

       abusive and violent during their relationship and that Grandmother smoked

       marijuana. Father and Grandmother denied these allegations, however, and

       Elliott and Yates testified that none of the claims had been substantiated. Father

       also emphasized that Mother had lied to H.S.’s schools and the public about her

       relationship with Bodenhamer. Mother admitted that, in addition to her

       misrepresentations to the schools, she had portrayed herself as married to

       Bodenhamer for over a year on Facebook and had told the children that she had

       already divorced Father, even though she was not married to Bodenhamer and her

       divorce from Father had not been finalized.


[21]   The witnesses at the hearing also repeatedly discussed examples of Mother and

       Father’s refusal to communicate. For instance, there was a question about whether

       H.S. received her immunizations twice because they would not discuss the matter.

       Father, however, testified that he had called the children’s doctor, and the doctor

       had said it was not possible that she had received duplicate shots.



          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 10 of 19
[22]   In support of his request for custody, Father also noted that he had cared for the

       children without Mother—although Grandmother had helped him to provide the

       care—for 88 days in 2010 while Mother was incarcerated for a 2005 conviction for

       felony identity deception.


[23]   Throughout the trial, the trial court discussed the parents’ lack of credibility and

       the difficulty of deciding which one of them should have custody. At one point,

       the trial court stated:

                    He can testify to what he knew, she can testify to what she knew, and I
                    can sit here and be constantly amazed how irresponsible they both are
                    not to be able to communicate about immunization. . . . And if they
                    can’t even talk about that, they’re not – are they? – they’re not going to
                    be able to talk about anything.


       (Tr. 81). Later, the trial court called the parents “two almost pathological liars.”

       (Tr. 258). Finally, the trial court stated:

                    I’m getting a little tired of this, to be very truthful with you. I’ve got to
                    decide where the custody of these children go, and I think right now I
                    can fairly say that I think they ought to be in an orphanage, but I can’t
                    put them in an orphanage, so I’ve got to decide between which parent.


       (Tr. 227).


[24]   At the conclusion of the trial, the trial court took the matter under advisement.

       Then, on December 17, 2014, it issued its decree of dissolution of the marriage. In

       the decree, the court ordered that Father have sole legal and primary physical

       custody of the children and that Mother have parenting time according to the



          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 11 of 19
       Indiana Parenting Time Guidelines, plus any other additional times that the parties

       could agree upon. Mother now appeals.


                                                        Decision
[25]   On appeal, Mother argues that the trial court abused its discretion by awarding

       primary physical and sole legal custody to Father. Her argument has four

       components, but we will only address three.3 First, Mother argues that the trial

       court abused its discretion procedurally by failing to enter detailed findings of fact

       and conclusions thereon. Second, Mother argues that the trial court abused its

       discretion substantively by determining that it was in the best interests of the

       children that Father have custody. And, third, Mother argues that, even if it was in

       the children’s best interests that Father have custody, the trial court should have

       awarded joint, rather than sole, legal custody. We will address each of these

       arguments in turn.




          3
            Mother’s remaining argument is premised on her belief that we should consider the trial court’s decree a
          modification of custody rather than an initial custody determination. She argues that, because the parties
          agreed at the provisional hearing that she would be the primary care provider, custody was established at the
          provisional hearing and the trial court’s dissolution decree modified a pre-existing custody order. The
          difference between a modification of custody and an initial custody determination is significant because the
          standard for an initial custody determination is “less [] stringent,” and both parents are presumed equally
          entitled to custody. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945 (Ind. Ct. App. 2006). However, we do not
          agree that Mother established custody by acting as primary caregiver or by agreeing to temporary custody at
          the provisional hearing. A preliminary order of custody is simply a temporary order. See I.C. § 31-15-4-13
          (“The issuance of a provisional order is without prejudice to the rights of the parties or the child as
          adjudicated at the final hearing in the process.”); Kondamuri, 852 N.E.2d at 945 (holding that, even though a
          provisional order had granted Father temporary custody for a year and a half, the subsequent custody
          determination was an initial custody determination rather than a modification of custody). Thus, the trial
          court was making an initial custody determination at the dissolution and custody hearing here, and we will
          not address Mother’s argument based on the modification of custody standard.

          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015        Page 12 of 19
       1. Findings of Fact and Conclusions Thereon


[26]   First, Mother argues that the trial court abused its discretion procedurally by

       failing to enter specific findings of fact and conclusions thereon as part of its decree

       of dissolution, although she does not cite any legal authority for this contention.

       She suggests that, because the trial court did not enter findings, there was no

       evidence that it considered the statutory factors it was required to consider to

       determine the best interests of the children under INDIANA CODE § 31-14-13-2 for

       an initial custody determination.


[27]   We disagree with Mother’s first contention because it is well-settled that unless

       parties request findings under Indiana Trial Rule 52(A), a trial court is not required

       to make specific findings. See Hegerfeld v. Hegerfeld, 555 N.E.2d 853, 856 (Ind. Ct.

       App. 1990) (addressing the prior version of the initial custody determination statute

       and holding that a trial court is not required to enter detailed findings regarding the

       best interests of the child unless requested); Nunn v. Nunn, 791 N.E.2d 779, 787

       (Ind. Ct. App. 2003) (considering a general judgment for an initial custody

       determination); see also In re Paternity of P.R., 940 N.E.2d 346, 351 (Ind. Ct. App.

       2010) (holding that, in a custody modification order, the trial court is not required

       to enter special findings regarding the change in the best interests of the child

       unless requested).4 Mother states that she requested findings, but she does not




          4
           Mother cites Green v. Green, 843 N.E.2d 23 (Ind. Ct. App. 2006), where we held that the trial court had not
          properly considered the required statutory factors in a custody modification decision. However, Green
          concerned a modification of custody rather than an initial custody determination, and we have repeatedly
          held that there are significant differences between a modification of custody and an initial custody

          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015         Page 13 of 19
       include a citation to the record to support that assertion, and we do not find any

       evidence in the record to support it. In addition, at the end of the hearing, the trial

       court granted the parents five days to submit proposed orders, and according to the

       chronological case summary, neither parent did so. Accordingly, we conclude that

       the trial court did not abuse its discretion by failing to enter findings of fact and

       conclusions thereon.


[28]   Instead, with respect to Mother’s second contention, it is clear from the record that

       the trial court considered the best interests of the children, in spite of the fact that

       the court did not enter special findings. INDIANA CODE § 31-14-13-2 provides that,

       when making an initial custody determination:

                   [t]he court shall determine custody in accordance with the best
                   interests of the child. In determining the child’s best interests,
                   there is not a presumption favoring either parent. The court shall
                   consider all relevant factors, including the following:
                            (1) The age and sex of the child.
                            (2) The wishes of the child’s parents.
                            (3) The wishes of the child, with more consideration given
                            to the child’s wishes if the child is at least fourteen (14)
                            years of age.
                            (4) The interaction and interrelationship of the child with:
                                     (A) the child’s parents;




          determination. See in re Paternity of Winkler, 725 N.E.2d 124 (Ind. Ct. App. 2000). Whereas in an initial
          custody determination, there is not a presumption favoring either parent, a “more stringent standard governs
          requests for modification of custody.” Id. at 124. This “stricter rationale is required to support a change in
          custody because ‘permanence and stability are considered best for the welfare and happiness of the child.’”
          Id. (quoting Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)). Therefore, we do not find Green on point.

          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015          Page 14 of 19
                                   (B) the child’s siblings; and
                                   (C) any other person who may significantly affect
                                   the child’s best interest.
                          (5) The child’s adjustment to home, school, and
                          community.
                          (6) The mental and physical health of all individuals
                          involved.
                          (7) Evidence of a pattern of domestic or family violence by
                          either parent.
                          (8) Evidence that the child has been cared for by a de facto
                          custodian . . . .


[29]   Here, the trial court repeatedly expressed frustration at the parents’ attempts to

       introduce testimony that did not relate to the best interests of the child. At one

       point, the trial court stated: “Let’s move on to the substantive issues, like best

       interest of the child, why those were her impressions, why did she make these

       recommendations, were there any questions in her mind about the credibility of the

       informants . . . .” (Tr. 36). Later, the trial court stated that it still had not heard

       evidence that “hit the nail on the head of the best interests of the child.” (Tr. 123).

       In light of this evidence, we conclude that the trial court properly considered the

       best interests of the children, even though it did not enter special findings on the

       issue.


       2. Best Interests


[30]   Next, Mother argues that the trial court abused its discretion substantively because

       it should have found that it was in the children’s best interests for her to have

       custody. Where, as here, the trial court did not make special findings, we review

          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 15 of 19
       the trial court’s decision as a general judgment and, without reweighing the

       evidence or considering witness credibility, will affirm if sustainable upon any

       theory consistent with the evidence. Wolljung v. Sidell, 891 N.E.2d 1109, 1111-12

       (Ind. Ct. App. 2008). Judgments in custody matters generally turn on essential

       factual determinations and will be set aside only when they are clearly erroneous.

       Id. at 1112. We will not substitute our own judgment if any evidence or legitimate

       inferences support the trial court’s judgment. Id.


[31]   To support her argument, Mother cites to evidence which purports to show that

       Father is the less fit parent and that she should have custody. However, there is an

       equal amount of evidence demonstrating that she is the less fit parent, and the trial

       court made it clear that it did not consider either of the parents commendable

       options for custody. Frequently, trial courts are required to make difficult

       decisions in custody disputes, and it is not our place to reweigh the evidence—

       especially where, as here, the trial court indicated that it did not find either party

       completely credible. Instead, we conclude that there was sufficient evidence for

       the trial court to determine that Father’s custody was in the children’s best

       interests. The evidence of the ages and sex of the children, the parents’ wishes, and

       the children’s wishes do not weigh in favor of either parent. As for the children’s

       interactions with their parents, siblings, and other people who might significantly

       affect the children’s best interests, Elliott testified that Father loved the children

       and that they got along well with him and Grandmother, with whom he lived. In

       addition, Father was able to provide the children with a stable home and school

       environment, whereas H.S. was enrolled in four schools in one year under


          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 16 of 19
       Mother’s care. Finally, the DRCB report indicated that Father’s only potential

       issue with his mental and physical health was his inability to recognize his own

       negative emotions. As for Mother’s allegations that Father had been violent

       throughout their marriage, none of her allegations were substantiated, and there

       was never any evidence or allegations that Father was violent towards the children.

       In light of these factors, we conclude that the trial court did not abuse its discretion

       in determining that Father’s custody was in the best interests of the children.


       3. Legal Custody


[32]   Finally, Mother argues that the trial court abused its discretion in awarding Father

       sole legal custody because it should have instead considered the factors for

       awarding joint legal custody. Under INDIANA CODE § 31-17-2-13, the court “may

       award legal custody of a child jointly if the court finds that an award of joint legal

       custody would be in the best interests of the child.” As we stated above, child

       custody determinations fall squarely within the discretion of the trial court and will

       not be disturbed except for an abuse of discretion. Troyer v. Troyer, 987 N.E.2d

       1130, 1145 (Ind. Ct. App. 2013), reh’g denied, trans. denied. We will not reverse the

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

       circumstances before it or the reasonable inferences drawn therefrom. Id. “‘On

       review, we will not reweigh evidence, judge the credibility of the witnesses, or

       substitute our judgment for that of the trial court.’” Id. (quoting Farag v. DeLawter,

       743 N.E.2d 366, 368 (Ind. Ct. App. 2001)).




          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 17 of 19
[33]   In determining whether an award of joint legal custody would be in the best

       interests of the child, the trial court should consider:


                  (1) the fitness and suitability of each of the persons awarded joint
                      custody;
                  (2) whether the persons awarded joint custody are willing and
                      able to communicate and cooperate in advancing the child’s
                      welfare;
                  (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) whether the child has established a close and beneficial
                      relationship with both of the persons awarded joint custody;
                  (5) whether the persons awarded joint custody:
                               (A) live in close proximity to each other; and
                               (B) plan to continue to do so; and
                  (6) the nature of the physical and emotional environment in the
                      home of each of the persons awarded joint custody.


       I.C. § 31-17-2-15. Because the trial court’s judgment was a general judgment, we

       may affirm on any theory supported by the evidence adduced at the hearing.

       Nunn, 791 N.E.2d at 787.


[34]   First, we must note that there is no evidence in the record that Mother even

       requested joint custody. However, even if she did, the trial court’s sole custody

       order was not an abuse of discretion. Elliott concluded in her DRCB report that

       “[d]ue to the parents’ inability to co-parent, a joint custody arrangement is not




          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015   Page 18 of 19
       feasible.” (Confidential App. p. 31).5 Mother also admitted that she had refused to

       accept Father’s telephone calls for a month and that she had repeatedly made

       decisions about H.S.’s schooling without consulting Father. In addition, the trial

       court concluded that the parents could not communicate to the extent necessary for

       joint custody when it stated:

                  He can testify to what he knew, she can testify to what she knew, and I
                  can sit here and be constantly amazed how irresponsible they both are
                  not to be able to communicate about immunization. . . . And if they
                  can’t even talk about that, they’re not – are they? – they’re not going to
                  be able to talk about anything.


       (Tr. 81). In light of the parents’ inability to communicate, we conclude that the

       trial court did not abuse its discretion in awarding Father sole legal custody. See

       I.C. § 31-17-2-15(2); Nunn, 791 N.E.2d at 787 (finding that evidence that the

       parties had a difficult time communicating was sufficient to justify an award of sole

       legal custody).


[35]   Affirmed.


       Vaidik, C.J., concurs.


       Robb, J., concurs in result.




          5
            Mother’s Appendix Volume 2 contains documents that were excluded from public access. As such, this
          Appendix was filed on green paper and marked as “Not for Public Access.” See Ind. Admin. Rule 9. We
          have attempted to exclude such matters from this opinion. However, to the extent such matters are included
          in this opinion, we deem such information to be “essential to the resolution of [the] litigation” or
          “appropriate to further the establishment of precedent or the development of the law.” See Admin. R.
          9(G)(3); 9(G)(7)(a)(ii)(c),(d).

          Court of Appeals of Indiana | Memorandum Decision 49A04-1501-DR-40 | September 25, 2015      Page 19 of 19
