Corrie Tomblin v. Michael A. Tomblin ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this 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.
Jul 03 2013, 9:08 am
ATTORNEYS FOR APPELLANT:
BRYAN LEE CIYOU
LORI SCHMELTZER
Ciyou & Dixon, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CORRIE TOMBLIN, )
)
Appellant-Petitioner, )
)
vs. ) No. 50A03-1211-DR-471
)
MICHAEL A. TOMBLIN, )
)
Appellee-Respondent. )
APPEAL FROM THE MARSHALL SUPERIOR COURT
The Honorable Robert O. Bowen, Judge
Cause No. 50D01-0906-DR-82
July 3, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Corrie Tomblin (“Mother”) appeals the trial court’s order modifying custody in
the decree (“Decree”) dissolving her marriage to Michael A Tomblin (“Father”). We
address two issues on review:
1. Whether the evidence supports the trial court’s findings.
2. Whether the trial court applied the correct legal standard in deciding
whether to modify custody.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother and Father began dating in 1998 when they were in high school. They had
an on-and-off relationship for several years, living together at times, and have three
children: Z.T., born January 24, 2000; A.T., born December 24, 2000; and K.T., born
June 7, 2008 (collectively “the children”). At one point Father sought and was granted
custody of the children, but shortly thereafter he was incarcerated, and custody of the
children was returned to Mother. Mother and Father married in September 2008 and
were divorced in October 2009. In the Decree, the court awarded custody of the children
to Mother, ordered visitation for Father, and ordered Father to pay child support.1
On August 26, 2011, Mother filed a pro se notice of intent to relocate with the
children. In the notice Mother stated that Father did not exercise visitation or pay child
support; that she could not cover her bills although she worked two jobs; that Mother was
moving in order to take a job and to finish her nursing education; and that she planned to
live in Bloomington with her father. On September 15, Father filed his objection to
1
The Decree refers only generally to custody and does not differentiate between legal and
physical custody.
2
Mother’s relocation with the children and petition to modify custody, parenting time, and
child support. On September 27, after Mother and the children had relocated to
Bloomington and following an evidentiary hearing, the trial court issued an order
allowing the children to remain in Bloomington with Mother pending a custody
evaluation.
Jill Uceny of Brighter Tomorrows, Inc., performed a custody evaluation between
December 2011 and July 2012. On July 30, 2012, she filed her report with the court,
recommending that Father have custody of the children. At a hearing September 11
regarding visitation, the trial court denied Mother’s request to modify Father’s visitation
schedule. And on October 18, the court held a hearing on Father’s petition to modify
custody, parenting time, and support. The following day, the court issued its order (“the
Order”) granting Father’s petition to modify custody, parenting time, and child support;
awarding legal and physical custody to Father and parenting time to Mother; and ordering
Mother to pay child support.2 The Order provides, in relevant part:
2. [Mother] moved with the children to Bloomington, Indiana[,] in
September, 2011. Notice of relocation was filed on August 26, 2011.
[Father] objected to the relocation after discovering that she had moved.
The Court ultimately approved the relocation so as not to require the
children to change school districts in the middle of a school term.
3. There has been a significant change of circumstances since the prior
Order regarding custody in that:
* The children moved from Marshall County to Bloomington.
* [Mother’s] work and school schedule is not conducive to
devoting the necessary time to care for and supervise the
children.
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The court ordered Father’s accrued child support delinquency to be charged weekly against
Mother’s child support obligation until the delinquency was extinguished and, at that point, Mother was
to begin making child support payments.
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* [Father’s] lifestyle provides ample time to provide the
necessary care and supervision of the children.
* The children are entering critical stages in their life [sic]
where adequate supervision and care by a parent are of
paramount importance.
4. It is in the best interest of the minor children that [Father] have their
physical and legal custody for the following reasons:
* Joint legal custody is not appropriate due to the distance
between the parties’ physical residence and their inability to
effectively communicate regarding the children.
* All the reasons noted above as “changes of circumstances[.”]
* All the reasons noted in the Evaluation Report prepared by
Jill Uceny of Brighter Tomorrows, Inc. and filed with the
Court on July 31, 2012.
* Although [Father] has a criminal record and was previously
incarcerated, he has taken significant steps towards
rehabilitation and is now engaged in a productive and law-
abiding lifestyle. [Father] now has a more stable lifestyle
than [Mother,] which is beneficial for the children.
* [Mother’s] work schedule and school schedule prohibit[] her
from being at home with the children for the majority of five
(5) evenings per week. [Father’s] work schedule allows him
to be with the children each evening.
5. Effective[] Saturday, December 22, 2012, the children shall reside
with [Father].
Appellant’s App. at 11-12. Mother now appeals.
DISCUSSION AND DECISION
Standard of Review
When a parent files a notice of intent to relocate, the nonrelocating parent may
object by moving to modify custody or to prevent the child’s relocation. Ind. Code §§
31-17-2.2-1(b); 31-17-2-2-5(a). When the nonrelocating parent objects, the burden is on
the relocating parent to show that the proposed relocation is made in good faith and for a
legitimate reason. Ind. Code § 31-17-2.2-5(c). If the relocating parent meets that burden,
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then the burden shifts to the nonrelocating parent to show that the proposed relocation is
not in the best interests of the children. Ind. Code § 31-17-2.2-5(d).
A court must weigh the following factors in considering a proposed relocation, as
set forth in Indiana Code Section 31-17-2.2-1(b):
(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating individual to
exercise parenting time or grandparent visitation.
(3) The feasibility of preserving the relationship between the nonrelocating
individual and the child through suitable parenting time and grandparent
visitation arrangements, including consideration of the financial
circumstances of the parties.
(4) Whether there is an established pattern of conduct by the relocating
individual, including actions by the relocating individual to either promote
or thwart a nonrelocating individual’s contact with the child.
(5) The reasons provided by the:
(A) relocating individual for seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the
child.
(6) Other factors affecting the best interest of the child.
“Other factors affecting the best interest of the child” include, among other things, the
child’s age and sex; the parents’ wishes; the child’s wishes, with the wishes of children
fourteen years or older being given more weight; the child’s relationship with parents,
siblings, and any other person affecting the child’s best interests; and the child’s
adjustment to home, school, and the community. Ind. Code § 31-17-2-8; see also
Baxendale v. Raich, 878 N.E.2d 1252, 1256 (Ind. 2008).
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The relocation of a custodial parent does not require modification of a custody
order. Id. But the court “may consider a proposed relocation of a child as a factor in
determining whether to modify a custody order [or] parenting time order. . . .” Ind. Code
§ 31-17-2.2-2(b). Further, when one parent is relocating, it is not necessary for a court to
find a substantial change in one of the “other factors” in Indiana Code Section 31-17-2-8
before modifying custody. See id. at 1257. “We review custody modifications for abuse
of discretion with a preference for granting latitude and deference to our trial judges in
family law matters.” K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009) (citation
and quotation marks omitted).
In ruling on Father’s petition to modify custody, the court entered findings of fact
and conclusions thereon. Our standard of review in such cases is well-settled:
We may not set aside the findings or judgment unless they are clearly
erroneous. Ind. Trial R. 52(A); Menard, Inc. v. Dage-MTI, Inc., 726
N.E.2d 1206, 1210 (Ind. 2000). In our review, we first consider whether
the evidence supports the factual findings. Menard, 726 N.E.2d at 1210.
Second, we consider whether the findings support the judgment. Id.
“Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671
N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if it relies on
an incorrect legal standard. Menard, 726 N.E.2d at 1210. We give due
regard to the trial court’s ability to assess the credibility of witnesses. Ind.
Trial R. 52(A). While we defer substantially to findings of fact, we do not
do so to conclusions of law. Menard, 726 N.E.2d at 1210. We do not
reweigh the evidence; rather we consider the evidence most favorable to the
judgment with all reasonable inferences drawn in favor of the judgment.
Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).
C.B. v. B.W., 985 N.E.2d 340, 343-44 (Ind. Ct. App. 2013).
Additionally, the trial court made those findings sua sponte.
When a trial court makes specific findings upon its own motion, the general
judgment will control as to the issues upon which the court has not found
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and specific findings control only as to the issues they cover. In re
Marriage of Snemis, 575 N.E.2d 650 (Ind. Ct. App. 1991). Thus, it may
not be necessary that each and every special finding be correct, and even
where one or more special findings are clearly erroneous, the judgment may
be affirmed if the judgment is supported by other findings or is otherwise
supported by the record. Where, as here, special findings are entered sua
sponte, the general judgment will be affirmed if it can be sustained upon
any legal theory by the evidence introduced at trial. Id. While special
findings entered sua sponte control as to the issues upon which the court
has found, they do not otherwise affect our general judgment standard of
review, and we may look both to other findings and beyond the findings to
the evidence of record to determine if the result is against the facts and
circumstances before the court. Id.Id. at 344.
Also, we observe that Father has not filed an appellee’s brief. Under that
circumstance, we do not undertake to develop the appellee’s arguments. Branham v.
Varble, 952 N.E.2d 744, 746 (Ind. 2011). Rather, we will reverse upon an appellant’s
prima facie showing of reversible error. Id.Issue One: Findings of Fact
Mother first contends that the trial court’s order modifying custody following her
relocation to Bloomington is not supported by evidence in the record. In particular, she
argues that the evidence does not support the trial court’s findings regarding Father’s
lifestyle and rehabilitation.3 We cannot agree.
3
Mother also purports to challenge the evidence supporting the following findings: (1) the fact
that she had already relocated to Bloomington; (2) the finding that the children are entering “critical
stages” in their lives, Appellant’s App. at 11; (3) the inconvenience to Father resulting from the move;
and (4) Mother’s school and work schedule. But Mother does not support her arguments regarding these
findings with cogent reasoning. Instead, the arguments on those points pertain to whether the trial court
correctly considered those factors when deciding to modify custody, which we discuss below. To the
extent Mother contends that the evidence does not support these findings, she has waived those
arguments. See Ind. Appellate Rule 46(A)(8)(a).
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Mother contends that the evidence does not support the trial court’s findings that
Father has ample time to supervise and care for the children, that Father’s lifestyle is
more stable than Mother’s, and that Father has taken significant steps toward
rehabilitation. In support, Mother points to evidence showing that Father works thirteen
hours per day. She also points to his criminal history, comprised of a felony in 2004 for
which he was incarcerated; felony possession of a firearm under federal law in 2009; the
requirement that he complete anger management classes based on a domestic violence
allegation involving Mother; and an operating while intoxicated conviction for which
Father was still on probation at the time of the modification hearing. And she points out
that Father had lived with several girlfriends in a short period of time, that he had a
pregnant girlfriend when the custody evaluation began, that that child is Father’s but
Father had not yet seen it, that he had moved in with his current wife only a month after
breaking up with the pregnant girlfriend, and that he married his current wife only a few
months later.
But the record also shows that Father successfully completed his probation in the
federal case, and Mother points to no additional arrests or convictions in the last two
years. The weight of Father’s criminal history relative to his more recent behavior was
for the trial court to decide. With regard to Father’s lifestyle, Father has been married to
his current wife since 2012 and, at the time of the custody hearing, had petitioned to
establish paternity of the child with his former girlfriend. Further, there was evidence
that Mother has multiple boyfriends simultaneously, that the children said she sometimes
sees more than one boyfriend in a single day, and that the children said Mother is rarely
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available for the children due to her work and school schedule. Considering the facts and
reasonable inferences from the facts in favor of the judgment, we cannot say that the trial
court’s findings regarding Father’s rehabilitation and lifestyle are clearly erroneous.
Issue Two: Legal Standard
Next we consider Mother’s contention that the trial court relied on incorrect legal
standards when it modified custody. Mother contends in part that the trial court erred
because it relied on facts “unrelated to a substantial change in circumstances for purposes
of custody modification[] and inconsistent with the factors set forth by the relocation
statute and the best interest factors[.]” Appellant’s Brief at 22. But, again, the trial court
is not limited to the factors in the relocation statute, Indiana Code Section 31-17-2.2-1(b).
See Ind. Code § 31-17-2.2-1(b)(6). The trial court may consider “other factors affecting
the best interests” of the children, including the non-exhaustive list of factors at Indiana
Code Section 31-17-2-8. Id. Additionally, and contrary to Mother’s contention, the trial
court need not find a substantial change in one of the “other factors” under Section 31-
17-2-8 (regarding the best interests of the child) before it may modify custody in the
event of the relocation of the custodial parent. See Baxendale, 878 N.E.2d at 1257. To
the extent Mother contends that the trial court clearly erred because it did not find a
substantial change in certain factors or because its decision is not based exclusively on
the factors listed in the relocation statute or the best interest factors listed in Section 31-
17-2-8, Mother’s arguments must fail.
We next consider Mother’s contention that the trial court applied an incorrect legal
standard when it relied on certain findings when deciding whether to modify custody.
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Specifically, Mother argues that the trial court should not have relied on the following
factors when deciding whether to modify custody: (1) the fact that she had already
relocated to Bloomington; (2) the finding that the children are entering “critical stages” in
their lives, Appellant’s App. at 11; (3) the inconvenience to Father resulting from the
move; (4) Mother’s school and work schedules; (5) Father’s lifestyle and rehabilitation;
and (6) the custody evaluation. She argues further that reliance on any of these factors is
against public policy.
To the extent Mother argues that any one of these factors by itself is insufficient to
support the modification of custody, we note that the trial court considered these factors
collectively when it made its decision. None of these factors were used in isolation to
support the trial court’s decision. As such, Mother’s argument regarding the reliance on
any one of these factors is without merit.
But Mother is correct that one of the factors found by the trial court is not a proper
consideration in custody modification cases. The trial court found that the “children are
entering critical stages in their life [sic] where adequate supervision and care by a parent
are of paramount importance.” Appellant’s App. at 11. Yet “[c]hildren grow and mature
from year to year, and the fact that a child is older when a petition for modification is
filed is not evidence of a significant change” in circumstances. Robertson v. Robertson,
634 N.E.2d 93, 95 (Ind. Ct. App. 1994). Moreover, Mother points out that the children
were twelve years old, eleven years old, and four years old at the time of the modification
hearing. While a child’s needs change over time, logic does not support that children of
ages with an eight-year difference are each entering “critical stages” in their lives so as to
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make parental supervision and care any more important than at any other age of minority.
To the extent the trial court relied on this finding, Mother has shown prima facie error in
the trial court’s reliance, if any, on this factor.
Mother also challenges the trial court’s reliance on the custodial evaluation as a
basis for modifying custody. Specifically, Mother argues that the court’s “reliance on the
reasons noted in [the] custody evaluation report, where said report is not based upon any
legal standard, and unsupported by law, is clear error.” Appellant’s Brief at 32. Mother
misunderstands the purpose of the custody evaluation.
A trial court may order a custody evaluation to be performed by, among others, a
“private agency employed by the court for the purpose.” Ind. Code § 31-17-2-12(a)(4).
Mother argues that the custody evaluation does not rely on and employ the statutory
factors to be considered when determining a request for modification of custody. But
those factors are for the trial court to consider. Mother does not challenge the skills or
expertise of Jill Uceny or Brighter Tomorrows. Nor did she object to the admission of
the custody evaluation at trial. To the extent Mother argues that the custodial evaluation
was not a proper consideration for the trial court in determining Father’s modification
request, Mother has not shown a prima facie error. And to the extent Mother’s argument
amounts to a request that we reweigh the evidence, we will not do so.
In any event, it may not be necessary that each and every special finding be
correct, and even where one or more special findings are clearly erroneous, the judgment
may be affirmed if the judgment is supported by other findings or is otherwise supported
by the record. C.B., 985 N.E.2d at 344. Thus, if there is evidence in the record that
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supports the trial court’s decision, we may affirm. Id. We find such evidence in the
present case. In particular, the trial court found that Father’s work schedule would allow
him evenings with the children, but Mother’s work and school schedules allow her little
time with them; that Mother did not take the custody evaluation process seriously,
missing two appointments without calling to explain her absence; that the custody
evaluation recommends awarding custody to Father, based on the parties’ psychological
exam results, the children’s statements, and Uceny’s interviews and observations of the
parties with the children; and that the parties do not communicate well enough to make
joint legal custody advisable. These factors, when considered with Mother’s relocation to
Bloomington, support the trial court’s modification of custody to Father. Mother has not
shown that that determination is unsupported in the record. As such, Mother has not
demonstrated a prima facie error warranting reversal of the order modifying custody.
Affirmed.
BAILEY, J., and BARNES, J., concur.
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