In the Matter of the Paternity of M.E., Michael A. Ewing v. Marcia Wagner (mem. dec.) ( 2017 )


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  •       MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                        FILED
    regarded as precedent or cited before any                               Dec 13 2017, 5:40 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                                  Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                             and Tax Court
    ATTORNEY FOR APPELLANT
    Dan J. May
    Kokomo, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Paternity of                        December 13, 2017
    M.E.,                                                    Court of Appeals Case No.
    34A04-1705-JP-1089
    Michael A. Ewing,
    Appeal from the
    Appellant-Respondent,                                    Howard Circuit Court
    v.                                               The Honorable
    William C. Menges, Special Judge
    Marcia Wagner,                                           Trial Court Cause No.
    34C01-0110-JP-197
    Appellee-Petitioner.
    Kirsch, Judge.
    [1]   Following a hearing, the juvenile court denied Michael A. Ewing’s (“Father”)
    Petition to Modify Custody, Support, and Parenting Time, and he now appeals,
    raising five issues that we consolidate and restate as:
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    I. Whether the juvenile court abused its discretion when it
    denied Father’s request to modify custody;
    II. Whether the juvenile court abused its discretion when it
    found Father in contempt for failing to return the parties’ child to
    Marcia Wagner (“Mother”) after exercising parenting time;
    III. Whether the juvenile court abused its discretion when it
    denied Father’s request to modify a child support order issued in
    2005; and
    IV. Whether the juvenile court erred when it allowed a former
    judge in the case to represent Mother.
    [2]   We affirm in part, reverse in part, and remand with instructions.
    Facts and Procedural History
    [3]   Father and Mother have one child together, M.E. (“Child”), who was born in
    November 2000. In October 2001, Mother filed a petition to establish paternity
    and support, and, in April 2002, paternity was established. For a time, the
    parents lived together and jointly supported Child, but they separated by June
    2003, and an order of $134 per week in child support was entered. Appellant’s
    App. Vol. II at 4. Mother and Father shared joint legal custody of Child, and
    Mother had physical custody of him, with Father to exercise parenting time as
    the parties agreed and pursuant to the Indiana Parenting Time Guidelines. In
    June 2004, Father petitioned for a change of venue from the judge, and, after
    Mother and Father each struck from a panel of three judges, the Honorable
    Michael Krebes (“Krebes”) assumed jurisdiction of the case on June 22, 2004.
    Court of Appeals of Indiana | Memorandum Decision 34A04-1705-JP-1089 | December 13, 2017   Page 2 of 20
    Id. at 6. In August 2004, then-Judge Krebes entered an order concerning
    visitation issues. Id. at 6, 21-22. In September 2004, Father petitioned for
    modification of child support, and while that was pending, the parties agreed in
    December 2004 to the appointment of the Honorable William C. Menges to
    serve as Special Judge, after Krebes lost his superior court seat in an election.
    Id. at 7-8. In March 2005, a support order was entered under which Father paid
    Mother $122.00 per week in child support; the child support obligation
    worksheet, upon which the $122.00 was based, included weekly child care
    expenses of $77.00 per week. Id. at 9, 23-26.
    [4]   Over the next several years, the parties filed various pleadings, primarily
    concerning parenting time and support and including contempt petitions. In
    August 2010, Krebes filed an appearance to represent Mother, as well as a
    petition for contempt citation. Id. at 12. In December 2010, Father, then-pro
    se, filed a motion asking the court to remove Krebes as counsel for Mother.1
    Following a hearing, the juvenile court denied Father’s motion to remove
    Krebes as Mother’s counsel and found Father in indirect contempt for failure to
    comply with visitation. Id. at 13. In May 2011 and August 2011, Krebes filed
    on behalf of Mother two more petitions for contempt. In September 2011,
    Mother appeared with Krebes, and Father appeared pro se, for a hearing on one
    1
    The pertinent CCS entry indicates that Father filed “what the Court deems to be a Motion to Remove
    Counsel for the Petitioner.” Appellant’s App. Vol. II at 13. The motion is not included in the record before us;
    however, it may have been an oral motion. See Appellant’s Br. at 7 (stating that Father “made an oral Motion
    for Removal” of Krebes).
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    or both of the contempt petitions, and the juvenile court found Father in
    indirect contempt of court. In April 2015, Father, now represented by counsel,
    filed a petition to modify custody, support, and parenting time. In August
    2015, a hearing was held on Father’s petition, with Mother appearing in person
    and with Krebes, and Father appearing in person and with his counsel. On
    January 4, 2016, the juvenile court denied Father’s petition. Id. at 15.
    [5]   Approximately seven months later, on August 2, 2016, Father filed another
    petition to modify custody, child support, and parenting time (“Petition to
    Modify”), the ruling from which Father now appeals. The Petition to Modify
    alleged that “there has been a substantial change of circumstances that makes
    the prior order [for custody, support, and parenting time] unreasonable and said
    Orders should be modified with custody transferred to Father.” Id. at 27. A
    hearing was held on Father’s Petition to Modify on September 26, 2016;
    Mother appeared pro se at the hearing, and Father appeared in person and by
    counsel. In support of his Petition to Modify, Father presented the testimony of
    Child, Mother, and Father.
    [6]   Child was the first to testify, describing that he “can’t stand” being at Mother’s
    home, that she does not respect his privacy, and that he rode his bicycle to
    Father’s home on ten or more occasions during the summer, but did not tell
    Mother. Tr. Vol. II at 13. When asked whether “different things happened
    since prior order of the court[,]” Child replied, “No.” Id. at 5. Mother testified
    next and stated that Child would tell her that he wanted to live with Father
    “when he was in trouble,” but that Child “seems pretty happy when he’s at
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    [her] home.” Id. at 15-16. Mother’s parenting policy was that, when Child was
    not with her, she wanted him to “check in” with her by phone every couple of
    hours. Id. at 9, 14, 16. Mother indicated that she was not opposed to Child
    having parenting time with Father and “never said no as long as I know about it
    and where he’s at.” Id. at 17. Mother was employed as a special education
    teacher at the same high school that Child attended. When asked if she got
    paid “the same amount as you did in the last hearing,” which was in July 2015,
    Mother indicated that it was almost the same with the only change being a raise
    of ten cents per hour. Id. at 13.
    [7]   According to Father, Child never said that he was supposed to check in
    periodically with Mother, so Father was unaware of that obligation. Child
    complained to Father “about [Mother] invading his privacy.” Id. at 21. Father
    worked at the same high school as Mother, and he was, for the most part, home
    during the summer, so Child would ride his bike to Father’s house and then
    Father would drive Child back to Mother’s residence, but would drop off Child
    at the corner at Child’s request because Child would “get in trouble” after
    having been with Father. Id. at 23. Father stated that Mother removed the
    front tire from Child’s bike after she discovered his last trip to Father’s home
    and that she grounded Child. Father stated that Child was sad that he could
    not see Father as much, but “he still finds a way to sneak down to see me.” Id.
    at 24. Counsel asked Father, “[W]hat’s been a substantial change in
    circumstances since the Judge made the last order[,]” and Father replied,
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    Well, he still complains about her invading his privacy. He
    leaves whenever he wants to, doesn’t tell her where he’s going
    and the only time that he gets in trouble is when she’s seen me
    bringing him back ‘cause she had no clue where he was at.
    Id. at 21. In his testimony, Father directly asked the juvenile court when
    making its custody decision to consider Child’s wishes, given his age. Counsel
    asked Father whether his income had changed since the parties were last in
    court during the summer of 2015, and Father agreed with Mother that he had
    only received a ten or fifteen cent raise and that his income was basically the
    same as it had been at the last hearing. Id. at 23. Counsel for Father conceded
    that it had been less than a year since the juvenile court’s prior order, which was
    issued in January 2016 following a July 2015 hearing on Father’s April 2015
    petition to modify custody, support, and parenting time, but asked the court to
    consider Child’s wishes, given his age, wishes, and continued complaints about
    privacy and living with Mother. Id. at 27.
    [8]   At the conclusion of the hearing, the juvenile court remarked that, in the court’s
    view, Mother was “somewhat over-protective” and that Father was “over
    permissive,” and that Child “doesn’t like rules so uses [Father]’s help to
    manipulate the situation to get what he wants.” Id. at 28. The juvenile court
    stated that “nothing’s changed since last summer,” when the court held a
    hearing on modification and, at that time, did not find that there had been any
    material change in circumstances, but that “the question becomes whether or
    not [Child’s] age does become a material change.” Id. The court recognized
    that as a child gets older his or her desires warrant consideration, and, in order
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    to further consider that aspect, took Father’s Petition to Modify under
    advisement. Id. at 29. The juvenile court directed Father to provide a child
    support obligation worksheet, which Father filed on September 28. Appellant’s
    App. Vol. II. at 16, 28.
    [9]   While Father’s Petition to Modify was still under advisement, Krebes filed on
    Mother’s behalf a petition for contempt on November 21, 2016, alleging that
    Father “has failed and refused to return [Child] to [Mother] at the conclusion of
    his parenting time and retains physical custody of [Child] in violation of the
    Court’s existing custody order.” Id. at 29. A hearing was held on February 13,
    2017, at which Mother appeared in person and with Krebes, and Father
    appeared in person and by his counsel. Mother testified that on November 3,
    2016, Child left home, but did not state where he was going, so Mother
    followed him and observed Father’s car coming down the street and Child
    getting into Father’s car. She testified that, other than meeting Child at the mall
    for an hour one time, she had not had custody or visitation with him since he
    left on November 3, missing his sixteenth birthday in November, as well as
    Christmas and the holidays. She also testified that she had seen Child getting
    into Father’s car, without prior visitation arrangements having been made with
    Father, on several prior occasions. Father testified that Child had told him on
    numerous occasions that he did not want to be at Mother’s home or reside with
    her. Father acknowledged that Child received a cell phone from him for
    Christmas, but he did not provide the number to Mother. Child testified that he
    did not want to live at his Mother’s home and that his Father “asked” him
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    whether he wanted to go back to Mother’s residence, but did not ever tell Child
    that he needed to do so. Tr. Vol. II at 58-59.
    [10]   At the close of the evidence, the juvenile court stated:
    At the conclusion of the first petition to modify custody, I
    concluded that Mr. Ewing . . . by his actions was undermining
    the authority of [Mother] and the net result of that was
    encouraging [Child] to defy his mother. And so changing
    custody would do nothing at that point but empower [Child] in
    this relationship. The attitude that he displays here today shows
    it’s exactly that[.] . . . This second [P]etition to [M]odify was
    taken under advisement. Thirty-seven days later [Child]’s
    running away and less than a month after that we had a citation
    filed and basically I wanted to see what the evidence was from
    the citation before I ruled and what the evidence is is that the
    [P]etition to [M]odify custody filed . . . August 2nd, 2016, should be and
    hereby is overruled and denied.
    Id. at 67-68 (emphasis added). The juvenile court also found Father in
    contempt “for willfully disregarding the order of the court,” and it sentenced
    Father to the Howard County Jail for thirty days with no good time credit, but
    suspended the jail time on the condition that Father “strictly comply with all
    orders of the court regarding custody and visitation and parenting time.” Id. at
    68-69. The juvenile court, speaking to Father, reminded him, “[Y]ou need to
    understand regardless of how much you disagree with [Mother]’s parenting,
    you need to back that up because if you don’t back that up and you continue to
    undermine her, then you’re going to have consequences,” referring to the jail
    time. Id. at 69. The juvenile court ordered that Child was to be returned to
    Mother’s home that day.
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    [11]   On February 28, 2017, the juvenile court issued a written order memorializing
    its February 13 verbal order from the bench, denying Father’s Petition to
    Modify, finding Father in contempt and sentencing him to a suspended thirty-
    day sentence in jail, and directing that Child be returned to Mother’s physical
    custody immediately, subject to Father’s right to exercise parenting time
    pursuant to the Guidelines and as the parties may otherwise agree.2 Father filed
    a motion to correct error, which the juvenile court denied. Father now appeals.
    Discussion and Decision
    [12]   At the outset, we recognize that Mother did not file an appellee’s brief. In this
    situation, we apply a less stringent standard of review with respect to showings
    of reversible error. In re Paternity of B.N.C., 
    822 N.E.2d 616
    , 618-19 (Ind. Ct.
    App. 2005). We do not undertake the burden of developing arguments for the
    appellee, and we may reverse if the appellant establishes prima facie error, that
    is, an error at first sight, on first appearance, or on the face of it. In re Paternity
    of E.C., 
    896 N.E.2d 923
    , 924 (Ind. Ct. App. 2008). When the appellant fails to
    sustain that burden, we affirm. B.N.C., 
    822 N.E.2d at 619
    .
    2
    We note that, on February 28, 2017, Father, by counsel, filed a Praecipe for Withdrawal of Submission,
    pursuant to Indiana Trial Rules 53.1(A), (E) or 53.2(A), alleging that Father’s Petition to Modify had been
    taken under advisement on September 26, 2016, had not been yet ruled upon by the juvenile court, and
    asking that the matter be certified to the Indiana Supreme Court for appointment of a Special Judge.
    Appellant’s App. Vol. II at 32-33. The Indiana Supreme Court issued a Determination Pursuant to Trial Rule
    53.1(E), finding that, according to the CCS, the juvenile court denied the Petition to Modify on February 28,
    which was the same date that Father had filed his praecipe asserting that the juvenile court had failed to rule
    in a timely manner, and “[I]t is not clear whether the ruling was entered before or after the praecipe was
    filed.” Id. at 34. Therefore, our Supreme Court ordered that “submission of this case is not withdrawn from
    the judge.” Id.
    Court of Appeals of Indiana | Memorandum Decision 34A04-1705-JP-1089 | December 13, 2017           Page 9 of 20
    [13]   Where, as here, the trial court does not make special findings, we review its
    decision as a general judgment.3 The judgment will be affirmed if it can be
    sustained upon any legal theory consistent with the evidence. Wolljung v. Sidell,
    
    891 N.E.2d 1109
    , 1111-12 (Ind. Ct. App. 2008). In making this determination,
    we neither reweigh the evidence nor judge the credibility of witnesses. 
    Id.
    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. Walker v. Nelson, 
    911 N.E.2d 124
    , 128 (Ind.
    Ct. App. 2009).
    I. Custody
    [14]   Modifications of custody in the context of paternity are governed by Indiana
    Code section 31-14-13-6, which states that the court may not modify a child
    custody order unless:
    (1) modification is in the best interests of the child; and
    (2) there is a substantial change in one (1) or more of the factors
    that the court may consider under section 2 and, if applicable,
    section 2.5 of this chapter.
    3
    In an action to modify custody, a trial court is not required to make special findings unless requested by a
    party. In re Paternity of J.T., 
    988 N.E.2d 398
    , 400 (Ind. Ct. App. 2013). Here, neither party requested special
    findings.
    Court of Appeals of Indiana | Memorandum Decision 34A04-1705-JP-1089 | December 13, 2017          Page 10 of 20
    Section 2, as referred to in the statute, provides that the court shall determine
    custody in accordance with the best interest of the child and shall consider all
    relevant factors, including:
    (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;
    (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.
    
    Ind. Code § 31-14-13-2
    . The party seeking modification of an existing custody
    order bears the burden of demonstrating that the existing custody order should
    be altered. Kirk v. Kirk, 
    770 N.E.2d 304
    , 307 (Ind. 2002).
    Court of Appeals of Indiana | Memorandum Decision 34A04-1705-JP-1089 | December 13, 2017   Page 11 of 20
    [15]   We review custody modification decisions for an abuse of discretion. Walker,
    
    911 N.E.2d at 127
    . 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 will not substitute our own judgment if any evidence or
    legitimate inferences support the trial court’s judgment. Walker, 
    911 N.E.2d at 127
    .
    [16]   In this case, Father has provided no evidence of a substantial change of
    circumstances. To the contrary, the evidence was that the situation was
    essentially the same as it was before the last custody hearing in July 2015, i.e.,
    nothing had changed. Essentially, Father’s argument on appeal is that the
    juvenile court should have given more weight to Child’s wishes, since he was
    fifteen years old when he testified. We recognize that Indiana Code section 31-
    14-13-2 provides that the wishes of the child is one of the factors that courts
    should consider, with more consideration given to the child’s wishes if the child
    is at least fourteen years of age. 
    Ind. Code § 31-14-13-2
    (3). However, although
    the statute allows a trial court to consider the child’s wishes, it does not require
    the trial court to follow those wishes. As this court has recognized, when
    custody rights of the parents are being determined, “the best interests of the
    child are the primary consideration.” Sabo v. Sabo, 
    858 N.E.2d 1064
    , 1068 (Ind.
    Ct. App. 2006). Here, the juvenile court heard Child’s testimony, as well as
    that of Mother and Father. The court was aware of Child’s wishes and, indeed,
    expressly took the matter under advisement “to figure out how much weight to
    give” Child’s desires. Tr. Vol. II at 29. The juvenile court expressed concern
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    that Child was manipulating his parents and attempting to control Mother and
    that Father’s actions were contributing to the situation. After considering all
    the evidence, the juvenile court ultimately determined that a modification of
    custody was not warranted. Father has not shown that the juvenile court’s
    decision was an abuse of discretion.
    II. Contempt
    [17]   Father contends that the juvenile court erred when it found him in contempt
    after Child left Mother’s home in November, went to Father’s, and Child did
    not return to Mother’s custody or have any visitation with her after that time.
    A party who has been injured or damaged by the failure of another to conform
    to a court order may seek a finding of contempt. In re Paternity of M.P.M.W.,
    
    908 N.E.2d 1205
    , 1209 (Ind. Ct. App. 2009). Whether a party is in contempt is
    a matter left to the discretion of the trial court. 
    Id.
     We will reverse a trial
    court’s finding of contempt only if there is no evidence or inferences drawn
    therefrom that support it. 
    Id.
    [18]   Here, the record reflects that on November 3, 2016, Child left Mother’s home,
    did not tell her where he was going, and when she followed him, she saw
    Father’s car coming down the street and pick up Child; Mother testified that she
    had witnessed Father pick up Child in this same way on several prior occasions
    as well. Child did not return to Mother’s home, and, on November 21, she filed
    a petition for contempt, alleging that Father was in contempt for failing to
    return Child to her. At the February 2017 hearing, Father stated that he had
    asked Child about returning to Mother’s home, but Child did not want to do so.
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    Child testified that his Father had asked him if he wanted to go back to
    Mother’s home, but never told him that he had to go back to her home. Tr. Vol.
    II at 58-59. Father also testified that he gave Child a cell phone for Christmas,
    but did not advise Mother of it or give her Child’s cell phone number. Other
    than one meeting at the shopping mall on February 5, 2017, for an hour,
    Mother had not seen Child since he left on November 3, including on his
    birthday or over the holidays. Mother testified to contacting Father via text on
    a number of occasions to ask him to bring Child to the designated location at
    the City Building used by the parties for parenting time exchanges of Child, and
    Father responded to her messages “at the beginning[,]” but “then he stopped
    responding.”4 Id. at 36. Mother testified that, each time, she went to the City
    Building, but Father and Child did not show up.
    [19]   At the conclusion of the February 2017 contempt hearing, the juvenile court
    reminded Father that it had already admonished Father in July 2015 that his
    conduct was “undermining the authority of [M]other.” Id. at 67. The court
    further noted that it had purposefully waited to rule on Father’s Petition to
    Modify because it “wanted to see what the evidence was” regarding the
    contempt allegations before making a decision on modification. Id. at 68. The
    juvenile court found Father in contempt “for willfully disregarding the order of
    the court,” and it sentenced Father to the Howard County Jail for thirty days
    4
    We note that Mother presented a thread of text messages to and from Father that were admitted into
    evidence, but are not included in the record before us. Tr. Vol. II at 37-38.
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    with no good time credit, but suspended the jail time on the condition that
    Father “strictly comply with all orders of the court regarding custody and
    visitation and parenting time.” Id. at 68-69.
    [20]   In asserting that “the decision finding the Father in contempt is contrary to law
    and/or an abuse of discretion,” Father argues that Child “ran away” from
    Mother’s home “and refused to return even though [Father] repeatedly asked
    [Child] to return to his Mother’s home[,]” noting that Mother saw Child every
    day at school, where she worked, “and could have simply taken [Child] home
    with her, but she refused to do so.” Appellant’s Br. at 12. Maintaining that he
    did not willfully violate court orders, Father contends that “[Mother]’s inaction
    to make her son return home was tacit consent to [Child] living with [Father]
    and vitiates any contempt on [Father]’s part.” Id. at 34. We disagree.
    [21]   We recognize that the evidence reflects a situation where a teenaged son has
    expressed to his Father that he wants to live with him. However, the juvenile
    court, who saw the witnesses and heard the evidence, determined that Father
    had repeatedly acted in a way to undermine Mother’s authority, which only
    empowered Child to continue to disobey Mother. The juvenile court had
    advised Father of its concern in this regard on one or more prior occasions
    before finding him in contempt in February 2017. With knowledge of the
    existing custody order, Father arranged for pick-up of Child on November 3,
    2016, without Mother’s consent, and failed to return Child to Mother. Father
    has failed to show that the juvenile court’s contempt determination was an
    abuse of discretion.
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    III. Child Support
    [22]   Father next challenges the denial of his request to modify child support. As the
    moving party, Father had the burden of establishing grounds for modifying his
    child support obligation. E.C., 
    896 N.E.2d at 925
    . Under Indiana Code section
    31-14-11-1, the trial court may order either or both parents to pay any
    reasonable amount for child support. Modification of a child support order is
    controlled by Indiana Code section 31-16-8-1,5 which states that modification
    may be made only:
    (1) upon a showing of changed circumstances so substantial and
    continuing as to make the terms unreasonable; or
    (2) upon a showing that:
    (A) a party has been ordered to pay an amount in child
    support that differs by more than twenty percent (20%) from the
    amount that would be ordered by applying the child support
    guidelines; and
    (B) the order requested to be modified or revoked was
    issued at least twelve (12) months before the petition requesting
    modification was filed.
    
    Ind. Code § 31-16-8-1
    (b).
    5
    Indiana Code section 31-14-11-2.3 states that child support orders issued under Indiana Code chapter 31-14-
    11 are subject to Indiana Code chapters 31-16-6 through 31-16-13.
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    [23]   When we review a court’s determination regarding modification of child
    support, we reverse only if the trial court has abused its discretion. E.C., 
    896 N.E.2d at 924
    . An abuse of discretion occurs when the decision is clearly
    against the logic and effect of the facts and circumstances before the trial court.
    
    Id. at 924-95
    . We consider the evidence most favorable to the judgment and the
    reasonable inferences to be drawn therefrom. 
    Id.
     We do not reweigh evidence
    or reassess the credibility of witnesses. 
    Id.
    [24]   Here, Father’s Petition to Modify requested modification of custody, child
    support, and parenting time. The juvenile court’s February 28 Order denied
    Father’s Petition to Modify, and in so doing, the juvenile court left in place the
    existing support order of $122.00 per week, which was issued in 2005.6
    Appellant’s App. Vol. II at 19, 26. Father raises various challenges to the child
    support order, one of which is the claim that the calculation of the 2005 child
    support order ($122.00 per week) included a weekly child care expense in the
    amount of $77.00 per week, which Child no longer incurs or needs, given that
    he turned sixteen years old in November 2016. Father asserts, “[T]here was no
    evidence that [] Mother spends $77.00 per week for day care[,]” and thus the
    $122.00 per week was no longer the appropriate support amount, and the order
    should have been modified accordingly. Appellant’s Br. at 16. Based on the
    6
    Father sought in April 2015 to modify the $122 support order that had been issued in 2005, but following a
    July 2015 hearing, the juvenile court denied Father’s request for modification.
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    record before us, we agree and find that Father has made a prima facie showing
    of error with regard to child support.
    [25]   Following the September 26, 2016 hearing, Father submitted, pursuant to the
    juvenile court’s directive to do so, a proposed child support obligation
    worksheet. Appellant’s App. Vol. II at 28. That worksheet used income figures of
    $619.38 per week for Father and $300.00 per week for Mother, which according
    to testimony, was almost the same as what the parties were earning at the time
    of a modification hearing in the summer of 2015, but for a raise of ten or fifteen
    cents per hour. Father’s proposed worksheet, which did not include the $77.00
    per week in day care expenses, reflected a weekly support obligation for Father
    in the amount of $95.66, which reduced by ninety-eight overnights of parenting
    time credit, resulted in a weekly obligation of $67.39, or more than a forty
    percent reduction from the $122.00. 
    Id.
     We find that Father has made a prima
    facie showing of a continuing and substantial change in circumstances making
    the prior order unreasonable. Accordingly, we remand the matter to the
    juvenile court with instructions to recalculate Father’s weekly child support
    obligation to exclude weekly child care expenses and, if warranted, modify the
    amount of parenting time credit to which Father is entitled.7
    7
    The 2005 child support obligation worksheet, prepared by the juvenile court, utilized ninety-eight
    overnights when determining Father’s parenting time credit. Appellant’s App. Vol. II at 26. We recognize that
    there was testimony that Child was absent from Mother’s home for eighty-four days (November 3, 2016 to
    February 13, 2017) and that ninety-eight overnights may or may not continue to be the proper number of
    overnights. We leave that determination to the juvenile court on remand.
    Court of Appeals of Indiana | Memorandum Decision 34A04-1705-JP-1089 | December 13, 2017        Page 18 of 20
    IV. Krebes as Mother’s Counsel
    [26]   On appeal, Father asserts that he was denied a fair trial and an impartial
    determination of the facts and law because Krebes represented Mother in this
    case, after “having heard evidence and issu[ing] an order concerning visitation
    issues.” Appellant’s Br. at 12. Referring to the Rules of Professional Conduct
    concerning conflicts of interest, and relying on the premise that “one who has
    been an attorney for a litigant should not thereafter act as a judge in any part of
    the same controversy,” Father urges that “[t]he converse is also true, and a
    lawyer should not accept employment as an advocate in any matter upon the
    merits of which he has previously acted in a judicial capacity.” Id. at 12-13, 20.
    [27]   The record before us reflects that Krebes assumed jurisdiction as judge in this
    case in June 2004, he issued one order in August 2004, and by December 2004,
    Judge Menges had been appointed as Special Judge on the case. Over nine
    years later, in August 2010, Krebes filed an appearance to represent Mother. In
    December 2010, Father, pro se, filed a motion to remove Krebes as Mother’s
    counsel, and, following a hearing, the juvenile court denied Father’s motion.8
    Appellant’s App. Vol. II at 13. Father did not appeal that decision, and Krebes
    continued to represent Mother through and including the February 2017
    hearing on Mother’s petition for contempt. Father’s appellate challenge to
    Krebes’s representation is untimely, and the issue has been waived.
    8
    Any order that was issued is not included in the record before us.
    Court of Appeals of Indiana | Memorandum Decision 34A04-1705-JP-1089 | December 13, 2017   Page 19 of 20
    Furthermore, we note, Mother appeared pro se – not with Krebes – at the
    September 26, 2016 hearing on the Petition to Modify, from which Father now
    appeals. In sum, Father has failed to show in what way he was prejudiced by
    Krebes’s representation of Mother, other than making general allegations that
    Krebes had been a judge on the case and issued a visitation order in 2004. We
    reject Father’s claims that he was denied a fair and impartial trial due to
    Krebes’s representation of Mother.
    [28]   Affirmed in part, reversed in part, and remanded with instructions.
    [29]   Najam, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 34A04-1705-JP-1089 | December 13, 2017   Page 20 of 20
    

Document Info

Docket Number: 34A04-1705-JP-1089

Filed Date: 12/13/2017

Precedential Status: Precedential

Modified Date: 12/13/2017