Michael Hays and Caryn Hays v. Amanda Hockett , 94 N.E.3d 300 ( 2018 )

FILED
Jan 25 2018, 9:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Crystal G. Rowe Jenny R. Buchheit
Alyssa C.B. Cochran Derek R. Molter
Kightlinger & Gray, LLP Sean T. Dewey
New Albany, Indiana Ice Miller, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Hays and Caryn Hays, January 25, 2018
Appellants-Intervenors, Court of Appeals Case No.
62A01-1612-DR-2910
v. Appeal from the Perry Circuit
Court
Amanda Hockett, The Honorable Mark R.
Appellee-Petitioner. McConnell, Special Judge
Trial Court Cause No.
62C01-1512-DR-522
Mathias, Judge.
[1] Michael and Caryn Hays (the “Hayses”) appeal the trial court’s order granting
custody of B.H. to his mother, Amanda Fisher (f/k/a Amanda Hockett). The
Hayses also appeal the trial court’s award of $1,365.00 in attorney fees as being
inadequate.
[2] We affirm.
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Facts and Procedural History1
[3] Amanda Fisher (“Mother”) and Brandon Hockett (“Father”) were married on
May 4, 2011, in Tell City, Indiana. A little over one year later, Mother gave
birth to their son B.H. Approximately three to four months after B.H. was born,
the family moved to Oklahoma where they moved in with Father’s mother and
step-father, the Hayses. In December 2012, Mother and Father moved out of
the Hayses’ home into a nearby apartment. After Mother and Father moved,
the Hayses continued to regularly watch and take care of B.H.
[4] In February 2015, Mother and Father moved back to Indiana. Mrs. Hays
picked up B.H. in May 2015 from Indiana and took him back to Oklahoma so
that Mother and Father could work on their marriage. B.H. returned to Indiana
to stay with Mother and Father towards the end of June 2015. And on August
24, 2015, Mrs. Hays again picked up B.H. and took him back to Oklahoma.
This was only supposed to be a short visit; however, it was prolonged so that
Mother and Father could continue to work on their marriage.
[5] Mother left the home she shared with Father on October 10, 2015, and moved
in with a friend. The Hayses were scheduled to return B.H. to Indiana in late
November, but they postponed the trip due to weather. On December 12,
1
The “Statement of Facts” section of the Hayses’ brief presents the facts in a manner that emphasizes specific
testimony and portions of the record favorable to their case. We direct the Hayses’ counsel to Indiana
Appellate Rule 46(A)(6)(b), which states in pertinent part that “[t]he facts shall be stated in accordance with
the standard of review appropriate to the judgment,” and encourage them to comply with this rule in future
appeals.
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Father left Indiana and returned to live with the Hayses in Oklahoma. Two
days later, Mother filed for divorce from Father along with a notice of a
provisional hearing in Perry County, Indiana. On December 21, Father filed for
divorce in the District Court, First Judicial District of Texas County in
Oklahoma (the “Oklahoma court”). Ten days later, Father filed an objection to
conducting the provisional hearing and a motion to dismiss for lack of
jurisdiction in Perry County, Indiana.
[6] The Oklahoma court held a hearing on Father’s divorce petition on January 14,
2016, in which Father was represented by counsel and both he and Mrs. Hays
testified. The next day, the Oklahoma court found that neither Oklahoma nor
Indiana met the requirements to qualify as B.H.’s home state for jurisdictional
purposes. The court also found that B.H. had significant connections in both
Indiana and Oklahoma. Therefore, the Oklahoma court abstained from
exercising jurisdiction in the case until it heard from Special Judge McConnell
whether Perry County would exercise jurisdiction under the “first in time rule,”
because Mother filed for divorce first.2 A January 20 CCS entry indicates that
2
The Oklahoma court also remarked:
[B]ased on [Father’s] testimony there is a serious question as to whether [Father] had
been a resident of the State of Oklahoma for six (6) months and a resident of the county
for thirty (30) days prior to the filing of the Petition on December 21, 2015. Residency in
the State of Oklahoma for six months prior to the filing of the Petition is a prerequisite to
invoking the jurisdiction of this court.
Appellant’s App. Vol. II, p. 28.
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the Perry County court received communication from Oklahoma, and that it
would exercise jurisdiction over the case.
[7] The trial court held the provisional hearings on February 17 and March 30. One
day prior to the first hearing, the Hayses filed a motion to intervene in order to
seek custody of B.H. On April 12, the trial court issued its provisional order in
which it granted the Hayses’ motion to intervene and awarded temporary
custody of B.H. to the Hayses. In its order, the court stated, “Ideally at some
point in the future one or both of the parents will establish that they are fit to
have custody and that such an order would be in the child’s best interest. But,
that is not currently the case.” Appellant’s App. Vol. II, p. 55.
[8] Final hearings were held on September 23 and November 17. On November 21,
the trial court issued a detailed decree of dissolution in which it dissolved the
marriage between Mother and Father and awarded legal custody of B.H. to
Mother. The trial court recognized the Hayses’ impact on B.H., set a gradual
transfer of custody schedule, and specified that the Hayses should remain a part
of B.H.’s life.
[9] On January 10, 2017, the Hayses filed, with this court, a motion to stay the
child custody order pending appeal, or in the alternative, to order Mother to
provide the Hayses with an all-purpose consent-to-treat form to enable B.H. to
receive medical treatment while in their care. On February 3, this court denied
the motion to stay, but remanded for the trial court to order Mother to provide
the Hayses with an all-purpose consent-to-treat form. Mother provided a
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consent form on February 13, which the Hayses argued was a limited-consent
form, and not an all-purpose consent-to-treat form. As a result, on February 16,
the Hayses filed a motion with this court to compel Mother to provide the
proper form. The Hayses also requested attorney fees spent pursuing the motion
to compel. On February 21, the motions panel of this court issued an order
granting the Hayses’ request and ordered Mother to provide the all-purpose
consent-to-treat form. The order also awarded attorney fees and remanded for
the trial court to determine a reasonable amount.
[10] On April 21, the trial court held a remand hearing where counsel for the Hayses
produced an attorney-fee invoice for $1,868.50 for pursuing the motion to
compel. At the hearing, counsel for the Hayses also submitted an affidavit
indicating an additional $4,495.50 in attorney fees spent on the motion to
compel remand hearing. In all, the Hayses’ counsel requested $6,364.00 in fees.
On May 18, the trial court issued an order awarding $1,365.00 in attorney fees
to be paid by the Mother in weekly installments of $30.
[11] The Hayses now appeal the custody determination and the amount of attorney
fees.
I. Jurisdiction Under the Uniform Child Custody Jurisdiction Act
[12] The Hayses first argue that the trial court’s custody determination should be
reversed because Indiana does not have subject matter jurisdiction under the
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Uniform Child Custody Jurisdiction Act (“UCCJA”).3 Specifically, the Hayses
assert that “Oklahoma is the appropriate forum to decide B.H.’s custody.”
Appellant’s Br. at 41. A decision to retain or relinquish jurisdiction under the
UCCJA is reviewed for an abuse of discretion. Novatny v. Novatny, 872 N.E.2d
673, 679 (Ind. Ct. App. 2007). An abuse of discretion occurs when the trial
court’s decision is clearly against the logic and effect of the circumstances
before it, or if the court has misinterpreted the law. Tamasy v. Kovacs, 929
N.E.2d 820, 826 (Ind. Ct. App. 2010).
[13] We initially note that there is a conflict in the case law regarding whether the
UCCJA confers subject matter jurisdiction; therefore, we take this opportunity
to address the issue. In 1990, in Williams v. Williams, 555 N.E.2d 142 (Ind.
1990), our supreme court was adamant that the UCCJA did not confer subject
matter jurisdiction.
The source of this competency to decide child custody matters is
found in Ind. Code § 31–1–11.5–20 and is an incidental grant of
specific authority within the general grant of subject matter
jurisdiction to hear actions for dissolution and child support. The
3
Before addressing the UCCJA, the Hayses contend that the trial court committed reversible error for failing
to provide them with an opportunity to be heard pursuant to the requirement of Indiana Code section 31-21-
4-2. Section 31-21-4-1 states that “[a]n Indiana court may communicate with a court in another state
concerning a proceeding arising under [the UCCJA].” Section 31-21-4-2 then explains that the court may
allow the parties to participate in the communication; however, if they are not able to participate, then “the
parties must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is
made.” The requirements of section 31-21-4-2 were met here when the Oklahoma court held a hearing in
which both Father and Mrs. Hays testified, and counsel presented argument. Appellant’s App. Vol. II, p. 26.
The hearing was held before the Oklahoma court decided to abstain from exercising jurisdiction until it heard
from Special Judge McConnell, who then proceeded to accept jurisdiction over the case. Cf. Harris v. Harris,
922 N.E.2d 626, 640 (Ind. Ct. App. 2010) (finding reversible error where father never had an opportunity to
present facts or legal arguments before a decision on jurisdiction was made).
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jurisdictional limitations imposed by the UCCJA are not
equivalent to declarations of subject matter jurisdiction, but
rather are refinements of the ancillary capacity of a trial court to
exercise authority over a particular case. This exercise of
authority is waivable.
Id. at 145 (citation omitted).4
[14] In 2000, our supreme court held that “[j]urisdiction is comprised of three
elements: (1) jurisdiction of the subject matter; (2) jurisdiction of the person;
and (3) jurisdiction of the particular case. The question of subject matter
jurisdiction entails a determination of whether a court has jurisdiction over the
general class of actions to which a particular case belongs.” Troxel v. Troxel, 737
N.E.2d 745, 749 (Ind. 2000) (citations omitted). In 2006, our supreme court
refined the Troxel court’s holding and explained that Indiana trial courts possess
two kinds of jurisdiction, subject matter jurisdiction and personal jurisdiction.
K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006). And that “phrases recently
common to Indiana practice, like ‘jurisdiction over a particular case,’ confuse
actual jurisdiction with legal error, and we will be better off ceasing such
characterizations.” Id. The K.S. court then explained, “Real jurisdictional
problems would be, say, a juvenile delinquency adjudication entered in a small
claims court, or a judgment rendered without any service of process. Thus,
4
Indiana Code section 31-1-11.5-20, cited by the Williams court, was repealed in 1997, and has subsequently
been replaced with the substantially similar UCCJA which is now codified in Indiana Code section 31-21.
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characterizing other sorts of procedural defects as ‘jurisdictional’
misapprehends the concepts.” Id. at 542 (emphasis in original).
[15] In light of our supreme court’s decisions in Williams, Troxel, and K.S., from
1990 to 2008, this court consistently held that jurisdiction under the UCCJA
does not equate to subject matter jurisdiction, and is therefore waivable. See In
re Marriage of B.K. and B.P., 873 N.E.2d 729, 735 (Ind. Ct. App. 2007), trans.
denied; Lollar v. Hammes, 952 N.E.2d 754, 756 (Ind. Ct. App. 2004); Christensen
v. Christensen, 752 N.E.2d 179, 184 (Ind. Ct. App. 2001).
[16] Then in 2008 our supreme court decided Stewart v. Vulliet, 888 N.E.2d 761 (Ind.
2008). In Stewart, mother and father were married in Washington and lived
there until 2003 when they relocated to Indiana. While in Indiana, mother who
was pregnant at the time, filed for divorce from father. After filing for divorce,
mother moved back to Washington where the child was born. In subsequent
custody proceedings, the question became whether Indiana or Washington had
jurisdiction.
[17] In Stewart, our supreme court consistently described this as a question of subject
matter jurisdiction stating, “Some states have held that the subject matter
jurisdictional requirement is not met if the child is born in another state.” Id. at
765 (emphasis added). And “[t]he UCCJL confers subject matter jurisdiction to a
state if the state is the home state of the child at the time of commencement of
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the proceeding.” Id. (emphasis added) (statutory citation omitted).5 The court
also explained, “Upon the birth of [child], Washington became her home
state. Thereafter, Washington had concurrent subject matter jurisdiction to
determine [child’s] custody.” Id. at 765–66 (emphasis added) (citations
omitted). The Stewart court did not cite to Williams, Troxel, or K.S.
[18] A year after Stewart was decided, a panel of this court noted in In re
Guardianship of S.M.,
The parties agree that, as the courts of two states are involved in
the matter, a critical determination is whether the trial court had
jurisdiction under the Uniform Child Custody Jurisdiction Law
(“UCCJL”)—Indiana Code Article 31–21. Indiana has codified
the UCCJL regarding interstate child custody disputes. “[I]ts
primary aim is to reduce court conflicts among states.” Stewart v.
Vulliet, 888 N.E.2d 761, 768 (Ind. 2008), reh’g denied. Most of the
UCCJL’s provisions address whether a trial court has subject
matter jurisdiction. See id. at 765. In Stewart, the Indiana Supreme
Court referred repeatedly to a determination under the UCCJL as
one of subject matter jurisdiction. Id. at 765–67.
918 N.E.2d 746, 748–49 (Ind. Ct. App. 2009) (emphases added).
[19] After Stewart and In re S.M. were decided, our court issued several opinions that
continue to rely on Williams for the proposition that the UCCJA does not confer
subject matter jurisdiction. In In re B.J.N., 19 N.E.3d 765, 768–69 (Ind. Ct. App.
5
Indiana Code Section 31-17-3-3-(a)(4) fell under the Uniform Child Custody Jurisdiction Law which the
Indiana General Assembly supplanted with the UCCJA. Stewart v. Vulliet, 888 N.E.2d 761, 764 n.1 (Ind.
2008).
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2014), we relied on Williams and held that “jurisdiction for purposes of the
UCCJA means jurisdiction over the particular case. Because judgments
rendered by courts lacking this type of jurisdiction are only voidable, [the
father] waived his challenge when he consented to the [court’s] jurisdiction.”
(citations omitted).
[20] In Barwick v. Ceruti, 31 N.E.3d 1008, 1013 (Ind. Ct. App. 2015), a panel of this
court again relied on Williams and found that mother waived appellate review
of a jurisdictional challenge because she conceded that the court had
jurisdiction and participated in court proceedings. And in Brown v. Lunsford, 63
N.E.3d 1057, 1060 (Ind. Ct. App. 2016), we reaffirmed the holding in Williams
that the jurisdictional limits imposed by the UCCJA are not that of subject
matter jurisdiction. The Brown court then held that because mother raised her
jurisdiction challenge for the first time in a motion to correct error, her
challenge was waived. Id. at 1061.
[21] Since the decisions in Stewart and In re S.M., no Indiana case has cited either
case for the proposition that the UCCJA confers subject matter jurisdiction. If
the Stewart court wanted to overturn Williams or K.S., it would have done so
explicitly, and therefore we believe Stewart is an outlier. Additionally, we
decline to disrupt the precedent that our court has set in declining to refer to
UCCJA jurisdiction as a question of subject matter jurisdiction. Circuit courts
are courts of general jurisdiction and are thus empowered to hear all types of
cases, including marriage dissolution proceedings and custody actions. In re
B.J.N., 19 N.E.3d at 768. Thus, we conclude that the Perry Circuit Court had
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subject matter jurisdiction over the custody action. The Hayses here did not
lodge their claims of procedural error, incorrectly framed as jurisdiction issues,
in a timely manner.6 Instead, the Hayses have brought the issue for the first time
on appeal; it is therefore waived.
[22] Waiver notwithstanding however, we find no error. Indiana Code section 31-
21-5-1 states:
Except as otherwise provided in section 4 of this chapter, an
Indiana court has jurisdiction to make an initial child custody
determination only if one (1) of the following applies:
(1) Indiana is the home state of the child on the date of
the commencement of the proceeding or was the
home state of the child within six (6) months before
the commencement of the proceeding, and the child
is absent from Indiana but a parent or person acting
as a parent continues to live in Indiana.
(2) A court of another state does not have jurisdiction
under subdivision (1) or a court of the home state of
the child has declined to exercise jurisdiction on the
6
Additionally, Mrs. Hays acquiesced to the court’s jurisdiction over this particular case:
[Counsel]: And with respect to [Father’s] request, if he requests custody,
alternatively placed with you temporarily, you understand custody is
up to The Court right now, you would be agreeable to that?
[Mrs. Hays]: Yes.
[Counsel]: And you would agree to submit to The Court’s jurisdiction and
authority?
[Mrs. Hays]: Yes.
Tr. Vol. I, p. 154. See In re B.J.N., 19 N.E.3d 765, 769 (Ind. Ct. App. 2014) (holding that
jurisdiction for purposes of the UCCJA refers to the authority of a court to hear a particular case,
and father waived a challenge when he consented to the trial court’s jurisdiction).
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ground that Indiana is the more appropriate forum
under section 8 or 9 of this chapter, and:
(A) the child and the child’s parents, or the
child and at least one (1) parent or
person acting as a parent, have a
significant connection with Indiana
other than mere physical presence; and
(B) substantial evidence is available in
Indiana concerning the child’s care,
protection, training, and personal
relationships.
(3) All courts having jurisdiction under subdivision (1)
or (2) have declined to exercise jurisdiction on the
ground that an Indiana court is the more
appropriate forum to determine the custody of the
child under section 8 or 9 of this chapter.
(4) No court of any other state would have jurisdiction
under the criteria specified in subdivision (1), (2), or
(3).
[23] One week after Mother filed for divorce in Indiana, Father filed his own
petition for divorce in Oklahoma in which he incorrectly stated that no other
action involving custody had been filed in any other state, and he argued that
Indiana lacked jurisdiction under the UCCJA. The Oklahoma court held a
hearing in which it found: (1) neither Oklahoma nor Indiana had home-state
jurisdiction; (2) neither Indiana nor Oklahoma had exclusive continuing
jurisdiction; (3) both States could claim significant connection jurisdiction; and
(4) because an action was filed in Indiana first, the Oklahoma court would
abstain from exercising jurisdiction until Judge McConnell decided whether
Indiana should exercise its concurrent jurisdiction. See Appellant’s App. Vol. II,
p. 27. Six days later, Judge McConnell decided to exercise jurisdiction. The
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Hayses argue that this was an error because Oklahoma was B.H.’s home state,
or in the alternative, that B.H. had no significant connection to Indiana. We
disagree.
[24] Neither Indiana nor Oklahoma qualify as a home state for B.H. under the
UCCJA. The “home state” is the state in which a child lived with a parent, or a
person acting as parent, for at least six consecutive months before the
commencement of a child custody proceeding. Ind. Code § 31-21-2-8; see also 43
Okla. Stat. tit. 43, § 551-102(7) (utilizing same definition). Additionally, a
period of temporary absence of either the parent or the person acting as parent
is part of the period. Id. Mother filed for divorce on December 14, 2015,7 and
thus the applicable six-month time period was from June 14 to December 14.
[25] During that time period, B.H. spent significant time in both Oklahoma and
Indiana. B.H. was with the Hayses in Oklahoma from June 14 until Mrs. Hays
brought B.H. back to Indiana at “the end of June, first of July, somewhere
around in there.” Tr. Vol. I, p. 126. B.H. then stayed in Indiana until August
24. B.H. was supposed to return to Indiana in November; however, the Hayses
cancelled the trip because of snow and ice in Oklahoma. Id. at 163. Thus, B.H.
remained in Oklahoma from August 24 until December 14.
7
A child custody proceeding commences on the same date a parent files a petition for divorce. Indiana Code
§ 31-17-2-3(1).
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[26] B.H. did not live in either Indiana or Oklahoma for six consecutive months
prior to Mother’s decision to file for divorce, and the time B.H. spent in Indiana
does not qualify as a temporary absence. B.H. was not absent from Oklahoma
for a few days, or even a week; but rather, he was with his Mother and Father
in Indiana for nearly two months. When the home-state test does not apply, the
significant connections test found in Indiana Code section 31-21-5-1(2) is used.
[27] The Oklahoma court found that “[b]oth states can claim significant connection
jurisdiction but that jurisdiction would be concurrent and not exclusive.”
Appellant’s App. Vol. II, p. 27. The Perry Circuit Court agreed, as indicated by
a docket entry which states, “This Court being duly advised in the premises
determines that it will exercise jurisdiction in the dissolution action filed ‘first in
time’ . . . .” Id. at 6. At the time Mother filed for divorce, she was living in
Indiana and Father had moved from Indiana only two days prior. Additionally,
B.H. was born in Indiana and he has close family in Indiana including his
maternal grandparents, his maternal uncle, and his cousins. Moreover, when
Mother and Father returned to Indiana in February 2015, the family established
a primary residence. While living in Indiana, B.H. was at his maternal
grandparents’ house frequently for family gatherings. Tr. Vol. III, p. 73. Based
on these facts and circumstances, we cannot say that the trial court abused its
discretion when it assumed jurisdiction under Indiana Code section 31-21-5-
1(2) and the “first in time rule” in conformance with the Oklahoma court’s
abstention.
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II. Custody Determination
[28] The Hayses next contend that the trial court erred when it granted Mother
primary physical custody of B.H. Specifically, the Hayses argue that they have
rebutted the presumption that favors awarding custody of children to the
natural parent, and that custody with the Hayses would be in the best interests
of B.H. Again, we disagree.
[29] We afford a trial court’s custody determination considerable deference on
appeal as it is the trial court that views the parties, observes their conduct, and
hears their testimony. Quinn v. Quinn, 62 N.E.3d 1212, 1220 (Ind. Ct. App.
2016). Accordingly, we do not reweigh the evidence on appeal or assess the
credibility of witnesses. Id. We will not substitute our judgment for that of the
trial court, and we will affirm the trial court’s determination unless the decision
is clearly against the logic and effect of the facts and circumstances before it or
the reasonable inferences drawn therefrom. Id.[30] Where, as here, the trial court supports its custody determination with specific
findings of fact and conclusions of law pursuant to Indiana Trial Rule 52, we
will not set aside the findings or judgment unless they are clearly erroneous.
Hughes v. Rogusta, 830 N.E.2d 898, 902 (Ind. Ct. App. 2005). We will disturb
the trial court’s judgment only where there is no evidence supporting the
findings, or where the findings fail to support the judgment. Id. Moreover, we
consider only the evidence most favorable to the judgment, with all reasonable
inferences drawn in favor of the judgment. Id.Court of Appeals of Indiana | Opinion 62A01-1612-DR-2910 | January 25, 2018 Page 15 of 23
[31] The custody dispute here is between B.H.’s Mother and his paternal
grandparents. Our supreme court has set forth the standard of review where the
dispute is between a natural parent and a third party:
[B]efore placing a child in the custody of a person other than the
natural parent, a trial court must be satisfied by clear and
convincing evidence that the best interests of the child require
such a placement. The trial court must be convinced that
placement with a person other than the natural parent represents
a substantial and significant advantage to the child. The
presumption will not be overcome merely because a third party
could provide the better things in life for the child. In a
proceeding to determine whether to place a child with a person
other than the natural parent, evidence establishing the natural
parent’s unfitness or acquiescence, or demonstrating that a strong
emotional bond has formed between the child and the third
person, would of course be important, but the trial court is not
limited to these criteria. The issue is not merely the “fault” of the
natural parent. Rather, it is whether the important and strong
presumption that a child’s interests are best served by placement
with the natural parent is clearly and convincingly overcome by
evidence proving that the child’s best interests are substantially
and significantly served by placement with another person. This
determination falls within the sound discretion of our trial courts,
and their judgments must be afforded deferential review.
In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002) (citation and
quotation omitted). Our supreme court further explained that that there is an
“important and strong presumption that the child’s best interests are ordinarily
served by placement in the custody of a natural parent.” Id. This presumption
“embodies innumerable social, psychological, cultural, and biological
considerations that significantly benefit the child and serve the child’s best
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interests.” Id. A nonparent must rebut this presumption by clear and convincing
evidence, and only then will the court move on to an analysis of the child’s best
interests and a consideration of the nonparent’s status as de facto custodians, if
applicable. T.H. v. R.J., 23 N.E.3d 776, 786 (Ind. Ct. App. 2014), trans. denied.
[32] The Hayses acknowledge the presumption in favor of Mother; however, they
argue that the presumption has been overcome because “the evidence
establishes that [Mother’s] long acquiescence and voluntary relinquishment of
B.H. to the Hayses has rendered them his de facto custodians and has allowed
the three to bond to the point where their lives and affections are completely
interwoven.” Appellant’s Br. at 49. The Hayses then support this statement in
their brief by citing to several portions of the record.
[33] The Hayses’ approach is problematic for two reasons. First, they only list two
factors as evidence that the presumption has been overcome—long
acquiescence and voluntary relinquishment resulting in an interwoven bond—
when our supreme court has explained that a trial court may rely on many
factors in making custody determinations. In re B.H., 770 N.E.2d at 288; see also
T.H., 23 N.E.3d at 786. And second, the Hayses’ citations to the record amount
to a request for us to reweigh evidence, a role not appropriate on appeal. Simply
put, the Hayses point us to portions of the record that it wishes the trial court
had paid more attention to or given more weight.
[34] We acknowledge that there was evidence before the trial court which might
have supported the Hayses’ contentions; however, it is not enough that the
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evidence may support some other conclusion. A.J.L. v. D.A.L., 912 N.E.2d 866,
873 (Ind. Ct. App. 2009). Rather, the evidence before us must “positively
require the conclusion contended for by the [Hayses] before there will be a
reversal.” Id. The evidence and reasonable inferences supporting the judgment
of the trial court here do not positively require us to reach a different
conclusion.
[35] The trial court stated in its order, “if a parent is able to provide an appropriate
level of care they should be given the opportunity to do so. [Mother] should be
given this opportunity.” Appellant’s App. Vol. II, p. 19. Here, the trial court
recognized the parental presumption, and it indirectly determined that the
Hayses had not rebutted it. The court also reminded the parties that in its
provisional order, it had remarked that it was hopeful that one or both parents
would be able to establish that they were fit to have custody of B.H.
[36] In its final order, the trial court found that Mother had met this standard, and in
support the court noted that: (1) Mother had been gainfully employed and
earning a good living since the provisional order; (2) both Mother and B.H.
would soon qualify for insurance benefits because of her job; (3) Mother is
subject to random drug screens through her employer, and she passed a hair
follicle drug screen that was required as part of the parties’ mediated settlement
agreement; (4) Mother provided records showing that she underwent a court-
ordered psychological evaluation which concluded that she did not have a
mental illness or psychiatric diagnosis; (5) Mother made proper arrangements
for childcare for B.H. as needed; (6) Mother currently lives with her parents in a
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suitable home for B.H. where he has his own room; (7) B.H.’s maternal
grandparents are supportive; and (8) B.H. and Mother have a good and loving
relationship, and she cares for him adequately when he is with her. Id. at 18–19.
These detailed findings provide ample support for the trial court’s judgment
awarding custody of B.H. to Mother.
[37] Further, the court commended the Hayses for their care of B.H. and stated,
“Because [the Hayses] have had such a close and enduring relationship with
[B.H.] the transition to the Mother’s custody should be gradual and . . . . Even
after the transition [the Hayses] should be a part of his life.” Id. at 19. And
when asked about the role the Hayses would have in B.H.’s life going forward,
Mother testified, “they’re part of his life. To take them completely out of his life
would be traumatic as well, yes. So, I mean, I think we all need to be part of his
life, but I think that it’s in his best interest for [B.H.’s] mother to raise him.” Tr.
Vol. IV, p. 139.
[38] For us to conclude that the trial court erred in awarding custody of B.H. to
Mother, we would need to reweigh evidence, view disputed facts in a light
unfavorable to the judgment, and place ourselves in the position of the trier of
fact, roles that are inappropriate on appeal. See In re B.H., 770 N.E.2d at 287–
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88. Accordingly, we decline to find the trial court’s findings clearly erroneous or
its judgment against the logic and effect of the evidence before it.8
III. Attorney Fees
[39] Finally, the Hayses contend that the trial court erred when it awarded $1,365.00
in attorney fees, instead of the requested $6,364.00. On appeal, we review the
trial court’s decision in determining a reasonable amount of attorney fees for an
abuse of discretion. Kitchell v. Franklin, 26 N.E.3d 1050, 1056 (Ind. Ct. App.
2015), trans. denied. A trial court abuses its discretion if its decision clearly
contravenes the logic and effect of the facts and circumstances before it or if the
trial court has misinterpreted the law. Id.[40] On February 21, 2017, the motions panel of this court granted the Hayses’
request for attorney fees, " for the filing of [the Hayses’] Amended Verified and
Combined Motion to Compel [Mother] to Provide the Hayses with ‘An All-
Purpose Consent-to-Treat Form,’ and Request for Expedited Consideration.”
Appellant’s App. Vol. II, p. 67. The matter was remanded to the trial court to
determine the proper amount. On remand, the Hayses submitted an affidavit
from counsel stating that counsel had spent 10.1 hours “working on [the]
8
Because we find that the trial court did not err when it concluded the Hayses failed to rebut the natural
parent presumption, we decline to address the Hayses’ “best interests” argument in detail. See Appellant’s Br.
at 52–59. However, we note that the Hayses once again are asking us to reweigh evidence and view facts in a
light unfavorable to the judgment. Moreover, the trial court found that “[i]n the long run [custody with
Mother] is in [B.H.’s] best interest.” Appellant’s App. Vol. II, p. 19. According the trial court proper
deference as we must, we decline to find this finding clearly erroneous.
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Motion to Compel (and issues surrounding same)” which amounted to
“$1865.50 in appellate attorney fees.” Id. at 106.
[41] At the hearing on April 21, 2017, counsel for the Hayses submitted a
supplemental affidavit showing that counsel had spent an additional 21.3 hours
working on remand proceedings, which equated to $3,940.50. Counsel then
added $550 for travel time to and attendance at the hearing. This resulted in an
additional request of $4,495.50 in attorney fees, bringing the total to $6,364.00.
Three business days after the hearing, the Hayses’ counsel submitted redacted
attorney-fee invoices to the trial court outlining the basis for the additional
$4,495.50 request.
[42] The trial court stated in its May 16, 2017 order:
With regard to the issue of an award of attorney fees pursuant to
the Order of the Court of Appeals dated February 21, 2017, the
parties had a full and fair opportunity to present such evidence as
they wished at the hearing held on April 21, 2017. No evidence
submitted thereafter shall be considered. Based upon the evidence
submitted at hearing, the Court finds a reasonable attorney fee to
be $1,365.00 and orders [Mother] to pay said fees to counsel for
[the Hayses] at the address shown above at the rate of $30.00 per
week until paid in full, commencing within two weeks from the
date of this Order.
Id. at 31. The Hayses argue that the reduction in fees constitutes an abuse of the
trial court’s discretion. We disagree.
[43] The Hayses contend that trial courts must be guided by the factors found in
Indiana Professional Conduct Rule 1.5(a) when determining a reasonable fee.
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However, our supreme court has explained that “our Rules of Professional
Conduct give us guidance as to factors to be considered in determining the
reasonableness of attorney fees.” Order for Mandate of Funds Montgomery Cnty.
Council v. Milligan, 873 N.E.2d 1043, 1049 (Ind. 2007) (emphasis added). There
is no mandatory requirement that the trial court explicitly consider the Rule
1.5(a) factors. Cavallo v. Allied Physicians of Michiana, LLC, 42 N.E.3d 995, 1010
(Ind. Ct. App. 2015).
[44] The attorney-fee invoices provided to the trial court at the time of the hearing
show that counsel spent a considerable amount of time: (1) preparing
correspondence for the Hayses or opposing counsel; (2) exchanging
correspondence with the Hayses or opposing counsel; (3) reviewing and
analyzing case law regarding recouping attorney fees; and (4) correcting the
motion to compel before filing it. Appellant’s App. Vol. II, pp. 110–11. These
tasks do not fall within our court’s grant of fees “for the filing of [the Hayses’]
Amended Verified and Combined Motion to Compel [Mother] to Provide the
Hayses with ‘An All-Purpose Consent-to-Treat Form,’ and Request for
Expedited Consideration.” Id. at 67. Further, nothing in our court’s order
allows for attorney fees related to the remand hearing or any work done in
preparation for the hearing.9 Thus, the trial court acted within its discretion
9
Counsel for the Hayses argue that “[Mother] is responsible for such remand fees as her behavior is what
mandated them.” Reply Br. at 22. However, Mother filed a consent-to-treat form that both she and her trial
counsel believed complied with our courts order. Tr. Vol. IV, pp. 164–65. We do not know from its order
how the trial court came to its fee determination; however, to the extent it chose not to award Hayses’
counsel remand fees, we do not find this to be an abuse of discretion.
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when it declined to consider attorney-fee invoices regarding the remand
proceedings provided by the Hayses’ counsel after the hearing was conducted.
Cf. Gerstbauer v. Styers, 898 N.E.2d 369, 380 (Ind. Ct. App. 2008) (trial court
abused its discretion awarding attorney fees when it misinterpreted a fee-
shifting provision in a lease agreement).
[45] Because of the wide discretion we provide to trial court’s in determining a
reasonable amount of attorney fees, we cannot say the court abused its
discretion here when it awarded $1365.00 to the Hayses’ counsel. See Song v.
Iatarola, 76 N.E.3d 926, 938 (Ind. Ct. App. 2017) (explaining that the trial court
is considered an expert on attorney fees and may judicially know what
constitutes a reasonable fee), adhered to on reh’g, 83 N.E.3d 80, trans. denied.
Conclusion
[46] Based on the facts and circumstances before us, the trial court properly
exercised jurisdiction over the custody of B.H. under the UCCJA, and did not
err in awarding custody of B.H. to his Mother. Further, the trial court did not
abuse its discretion when it awarded $1365.00 in attorney fees to the Hayses’
counsel. Accordingly, we affirm.
Najam, J., and Barnes, J., concur.
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