In re: The Paternity of M.B. (Minor Child), By Next Friend, Briana L. (Wedding) Murawski v. Seth Logan Boyd (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 17 2017, 9:25 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Timothy Logan Michael H. Michmerhuizen
Benson, Pantello, Morris, James & Barrett McNagny LLP
Logan, LLP Fort Wayne, Indiana
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re: The Paternity of November 17, 2017
M.B. (Minor Child), Court of Appeals Case No.
90A04-1704-JP-942
By Next Friend, Appeal from the Wells Circuit
Briana L. (Wedding) Murawski, Court
The Honorable Kenton W.
Appellant-Petitioner,
Kiracofe, Judge
v. Trial Court Cause No.
90C01-1208-JP-41
Seth Logan Boyd,
Appellee-Respondent.
Robb, Judge.
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Case Summary and Issues
[1] Briana Murawski (“Mother”) and Seth Boyd (“Father”) are the parents of M.B.
Mother appeals from the trial court’s order denying her motion to modify
custody, parenting time, and child support and ordering her to pay Father’s
attorney’s fees. Specifically, Mother raises two issues for our review, which we
restate as: whether the trial court abused its discretion in 1) denying Mother’s
motion to modify parenting time; and 2) ordering Mother to pay a portion of
Father’s attorney’s fees. Concluding the trial court did not abuse its discretion,
we affirm.
Facts and Procedural History
[2] Father and Mother (collectively, “Parents”) have one child, M.B., who was
born in 2011. The trial court entered an order regarding the paternity, custody,
parenting time, and support of M.B. on December 10, 2012. Pursuant to that
order, Mother was awarded primary physical custody and the Parents were
granted joint legal custody. The court also adopted Father’s proposed parenting
time schedule:
Mon. Tue. Wed. Thur. Fri. Sat. Sun.
Father – Mother Mother – Father Father – Mother Mother
to 6:30 to 6:30 to 6:30
pm pm pm
Mother – Father Father – Mother Mother – Father Father
to 6:30 to 6:30 to 6:30
pm pm pm
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[3] Since the 2012 order, both Parents have relocated, now living about one-half
hour apart. Mother has married and has a daughter with her husband. While
Mother formerly worked fluctuating hours at Walgreens, she has since acquired
full-time employment with the Indiana Department of Transportation and
obtained health insurance. Father is engaged and living with the mother of
their two children. He continues to work for his same employer but has
transitioned from second shift to third shift, Sunday night through Friday
morning.
[4] In 2015, M.B. began attending a pre-school Mondays, Wednesdays, and
Fridays from 9:00 until 11:30 in the morning. The school is about ten minutes
from Mother’s home and thirty minutes from Father’s home. Parents agreed
that M.B. should attend the same school for elementary, and M.B. began
kindergarten in the fall of 2017.
[5] On April 1, 2016, Mother filed a motion to modify custody, parenting time, and
child support seeking to end shared parenting time and obtain sole legal
custody, alleging that “continuous and substantial changes in circumstances”
had rendered the physical custody arrangement no longer in the child’s best
interest. Corrected Appendix of the Appellant, Volume II at 58. On November
28, 2016, Mother filed a motion for emergency modification, claiming “since
the date of the last court Order, the minor child has been placed in immediate
or irreparable harm in the care of [Father].” Id. at 67. Among other things,
Mother claimed that Father was not home with the child during parenting time,
that Father sleeps in the car while the child is in preschool, and that due to
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Father’s inability to provide M.B. a set routine, she is often overly tired and has
developed behavioral issues.
[6] Father filed a response, and the trial court held a hearing on Mother’s pending
motions on March 24, 2017. At the hearing, Mother clarified that she was no
longer seeking sole legal custody and her request was only for parenting time
pursuant to the Parenting Time Guidelines.
[7] On March 31, 2017, the court entered its order finding that Mother had failed
to meet her burden and denied her motion for modification of custody,
parenting time, and child support, as well as her motion for emergency
modification. The court found that Father had incurred attorney’s fees in the
amount of $11,456.78, in relation to the motions filed by Mother, and ordered
Mother to reimburse Father $8,600.00. Mother now appeals.
Discussion and Decision
I. Modification of Parenting Time
A. Standard of Review
[8] Modifications of parenting time are reviewed for abuse of discretion. Miller v.
Carpenter, 965 N.E.2d 104, 108 (Ind. Ct. App. 2012). We grant latitude and
deference to our trial judges in family law matters. Werner v. Werner, 946
N.E.2d 1233, 1244 (Ind. Ct. App. 2011), trans. denied. We consider only the
evidence favorable to the judgment and the inferences flowing therefrom. Id.
We do not reweigh the evidence or assess witness credibility. Id.
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[9] The trial court entered findings of fact and conclusions thereon pursuant to
Indiana Trial Rule 52(A). We apply a two-tiered standard of review to such
cases. Marion Cty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216 (Ind.
2012). First, we determine whether the evidence supports the findings of fact
and second, we determine whether the findings support the judgment. In re
Adoption of A.S., 912 N.E.2d 840, 851 (Ind. Ct. App. 2009), trans. denied.
Indiana’s appellate courts “shall not set aside the findings or judgment unless
clearly erroneous, and due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses.” T.R. 52(A). “A judgment is
clearly erroneous if it applies the wrong legal standard to properly found facts.”
Kondamuri v. Kondamuri, 852 N.E.2d 939, 944 (Ind. Ct. App. 2006).
[10] Where, as here, the findings and conclusions are entered sua sponte, “the
specific findings control only as to the issues they cover, while a general
judgment standard applies to any issue upon which the trial court has not
found, and we may affirm a general judgment on any theory supported by the
evidence adduced at trial.” Sexton v. Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct.
App. 2011), trans. denied.
B. Modification of Parenting Time
[11] Mother challenges the trial court’s denial of her petition to modify parenting
time arguing the court abused its discretion by applying an incorrect legal
standard.
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[12] To begin, we note that Mother does not appeal the trial court’s decision
regarding custody. Mother withdrew her request to modify custody at the
hearing. Therefore, the only question posed to the trial court was one of
parenting time. The trial court made the following findings:
5. Under Indiana law, the Court may not modify a child
custody order unless the modification is in the best interest
of the child; and, there is a substantial change in one (1) or
more of the factors that the court may consider under I.C.
31-17-2-8. See I.C. 31-17-2-21.
6. The Court finds that Mother has not met her burden and
the Court now respectfully DENIES Mother’s Motion to
Modify Custody and Parenting Time, as well as the
Motion for Emergency Modification of Parenting Time.
Corrected App. of Appellant, Vol. II at 16.
[13] The trial court cited to Indiana Code section 31-17-2-21 (“dissolution custody
modification statute”), which states the requirements to modify a child custody
order following a dissolution. The statute states:
(a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the
factors that the court may consider under section 8, and, if
applicable, section 8.5 of this chapter.
Ind. Code § 31-17-2-21.
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[14] Modifications of custody in the paternity context are actually governed by
Indiana Code section 31-14-13-6 (“paternity custody modification statute”), but
the substance of the two statutes are virtually identical.1 Both the dissolution
custody modification statute and the paternity custody modification statute
point to other statutes enumerating factors that a court shall consider in
determining the best interest of a child.2 Those statutes, Indiana Code section
31-17-2-8 and Indiana Code section Indiana Code section 31-14-13-2,
enumerate the same factors, with only one exception not applicable here. 3
[15] However, as noted, the issue before the trial court was one of parenting time,
not custody. Modifications of parenting time in the context of paternity, as
here, are governed by Indiana Code section 31-14-14-2. The statute provides
that, “The court may modify an order granting or denying parenting time rights
whenever modification would serve the best interests of the child.” Id. Thus,
while modifications of custody require a showing of the best interests of the
child and a substantial change, modifications of parenting time require only a
1
Indiana Code section 31-14-13-6 states:
(a) The court may not modify a child custody order unless:
(1) the modification is in the best interests of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider
under section 2, and, if applicable, section 2.5 of this chapter.
2
Indiana Code section 31-17-2-21 cites to Indiana Code section 31-17-2-8 while Indiana Code section 31-14-
13-6 cites to Indiana Code section 31-14-13-2.
3
Indiana Code section 31-14-13-2 does not consider the designation of a power of attorney. See Ind. Code §
31-17-2-8(9).
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showing of the best interests of the child. Miller v. Carpenter, 965 N.E.2d 104,
110 (Ind. Ct. App. 2012).
[16] Mother contends that the trial court applied the standard for modification of
custody to the issue of parenting time:
[Mother] is not arguing that the court erred in weighing the
evidence and drawing reasonable inferences per se, but rather that
it erred in applying an incorrect standard to a controversy
requiring “foremost consideration to the best interests of the
child.”
Corrected Appellant’s Brief at 23.
[17] We agree that paragraphs 5 and 6 of the trial court’s order must be read in
conjunction and that the trial court did consider both a change in circumstances
and the best interests of the child regarding a modification of parenting time.
However, while parenting time is determined by a best interests of the child test,
if there is no change in circumstances it is difficult to show that the child’s best
interests are no longer served by the original order. Here, Mother argues there
is sufficient change to render a modification of parenting time in the best
interests of the child because the child recently began attending school, she is
older than when the existing parenting time was determined, and the distance
between the parties has increased. Further, Mother alleges the current
parenting schedule takes a physical toll on M.B., creating behavioral problems
and leaving her “miserable” and “wearing her thin.” Transcript, Volume II at
11-12, 44.
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[18] We find sufficient evidence in the record to support the trial court’s judgment.
Because the trial court did not make any specific findings regarding parenting
time, and none were requested, a general judgment standard applies. Sexton,
946 N.E.2d at 1183. Furthermore, the trial court’s failure to make more
detailed findings is not an indication that the court failed to carefully consider
the evidence and correctly apply the law. See Baxendale v. Raich, 878 N.E.2d
1252, 1257-58 (Ind. 2008) (affirming the trial court’s modification of custody
where no specific findings were made but evidence in the record supported the
trial court’s decision).
[19] Mother has failed to demonstrate that a modification of parenting time is in the
best interests of the child. In the interest of stability and consistency, the current
parenting time schedule has been in place since December 2012, almost all of
M.B.’s life, and the parties successfully adhered to the schedule while M.B. was
in preschool three days a week. Father enjoys a good relationship with M.B.
and when Father is not with the child, M.B. is with Father’s fiancée. To the
contrary, if the modification in parenting time was granted, M.B. would spend
a significant amount of time with a babysitter while not in school. We therefore
find a rational basis for the court’s decision and there is no abuse of discretion.
See Meisberger v. Bishop, 15 N.E.3d 653, 656 (Ind. Ct. App. 2014).
II. Attorney’s Fees
[20] Mother also challenges the trial court’s order requiring her to pay $8,600.00
towards Father’s attorney’s fees. We review a decision to award attorney’s fees
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and the amount of any award for an abuse of discretion. Allen v. Proksch, 832
N.E.2d 1080, 1102 (Ind. Ct. App. 2005).
[21] Indiana Code section 31-14-18-2 permits a trial court to award attorney’s fees in
paternity actions. The statute provides:
(a) The court may order a party to pay:
(1) a reasonable amount for the cost to the other party of
maintaining an action under this article; and
(2) a reasonable amount for attorney’s fees, including
amounts for legal services provided and costs incurred,
before the commencement of the proceedings or after
entry of judgment.
Ind. Code § 31-14-18-2.
[22] In determining such award, the trial court should consider the parties’
resources, their economic conditions, their respective ability to earn adequate
income through employment, and other factors that bear on the reasonableness
of the award. Gillette v. Gillette, 835 N.E.2d 556, 564 (Ind. Ct. App. 2005). The
trial court may also look to the responsibility of the parties in incurring the
attorney’s fees. Mason v. Mason, 775 N.E.2d 706, 711 (Ind. Ct. App. 2002),
trans. denied. The trial court has broad discretion in awarding attorney’s fees.
Barton v. Barton, 47 N.E.3d 368, 377 (Ind. Ct. App. 2015), trans. denied. “We
may reverse the trial court’s decision only if it is clearly against the logic and
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effect of the circumstances before the court.” Thompson v. Thompson, 868
N.E.2d 862, 870 (Ind. Ct. App. 2007).
[23] The trial court made the following findings relevant to its grant of attorney’s
fees:
7. Court finds Father earns $914 per week and Mother earns
$428 per week.
8. Father has two (2) subsequently born children and Mother has
(1) subsequently born child.
***
11. Father shall pay Mother child support for the benefit of the
child in the amount of $56.00 per week . . . .
***
14. Father incurred attorney fees in the amount of $11,456.78 in
relation to the motions filed by Mother in this matter. The Court
orders that Mother shall reimburse Father for $8,600.00 of said
fees.
Corrected App. of Appellant, Vol. II at 16-17.
[24] Mother contends that the award was inappropriate due to the parties’
disproportional income. On this basis alone, Mother argues, the award of
$8,600.00 in attorney’s fees is inappropriate.
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[25] We disagree. The record reveals ample evidence regarding the parties’ financial
conditions and we assume this information was considered when the court
awarded attorney’s fees. Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind. Ct. App.
2012), trans. denied. Although disparity in the parties’ income is a foremost
consideration in awarding attorney’s fees, the trial court must also look to
surrounding circumstances and evaluate a number of additional factors when
arriving at its decision. See Walters v. Walters, 901 N.E.2d 508, 515 (Ind. Ct.
App. 2009) (noting that a trial court “must consider [all] such factors . . . which
bear on the reasonableness of the award”).
[26] Here, Father is the sole breadwinner in his family while Mother’s husband
earns an income in addition to income Mother earns herself. Father has two
subsequent children and Mother has only one subsequent child. See Matter of
Paternity of A.J.R., 702 N.E.2d 355, 364 (Ind. Ct. App. 1998) (considering the
parties’ subsequent born children in determining reasonableness of attorney’s
fees award). Given these considerations and Mother’s responsibility for the
litigation, it was not an abuse of discretion to order Mother to pay a portion of
Father’s attorney’s fees.
Conclusion
[27] For the reasons stated above, we affirm the trial court’s denial of Mother’s
motion to modify parenting time and order that Mother pay attorney’s fees.
[28] Affirmed.
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Riley, J., and Pyle, J., concur.
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