C.F. v. M.R. ( 2012 )

FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Apr 30 2012, 9:37 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAWN E. WELLMAN RYAN H. CASSMAN
Allen Wellman McNew LLP CATHY M. BROWNSON
Greenfield, Indiana Coots, Henke & Wheeler, P.C.
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
C.F., )
)
Appellant-Petitioner, )
)
vs. ) No. 30A01-1110-DR-467
)
M.R., )
)
Appellee-Respondent. )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Terry K. Snow, Judge
Cause No. 30D01-0604-DR-268
April 30, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
C.F. (Mother) appeals the trial court’s order granting M.R.’s (Father) motion to
modify custody of the parties’ five-year-old son, A.R. Specifically, Mother argues that
the trial court improperly modified custody based on evidence of a change that was not
substantial enough to justify the modification. Finding no error, we affirm the decision of
the trial court.
FACTS
Mother and Father were married in 2001, and A.R. was born in 2005. The parties’
marriage was dissolved in 2008. At that time, the parties both lived in Greenfield where
A.R. attended pre-school and participated in activities such as soccer and swimming. The
trial court awarded physical custody of A.R. to Mother and awarded Father 182 days of
parenting time per year. The parties agree that they basically split custody of A.R. This
arrangement worked well until Mother and Father both moved, and it became time for
A.R. to enter kindergarten. In June 2010, Father filed a petition for modification of child
custody.
Testimony at the hearing on Father’s petition revealed that Father now lives in
Indianapolis with two children from prior relationships, his pregnant wife, and her three-
year-old daughter. Father is employed as a fire fighter and works a rotating shift of
twenty-four hours on duty and forty-eight hours off duty. Mother lives in Knightstown
with her boyfriend and his children. She is employed as an optician.
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The testimony further reveals that Father requested the modification of custody so
that A.R. could attend a private Lutheran school and grow up with his half-sisters. Father
explained that he would be able to pick up A.R. and his sisters after school and take them
home on the three to four days per week he is off duty. A.R. would have more stability in
his life because he would not have to make the frequent trips between Henry County and
Marion County. A.R.’s stepmother testified that the family lives in a three-bedroom
home with a pool and a hot tub, and A.R. has his own bedroom. A.R. and his stepmother
get along well. Mother testified that she lives in Knightstown in her boyfriend’s house.
She planned for A.R. to attend a public school in Knightstown. He would ride the school
bus to a babysitter’s house in the afternoon.
Following the hearing, the trial court recognized that this was a “hum dinger” of a
case because both parents love A.R. and have historically been able to “negotiate things
out.” Tr. p. 102. The court told the parties that it was taking the matter under advisement
because it had to “think about [and sleep on] this one a little bit.” Id. at 103. The trial
court subsequently issued an order modifying custody in favor of Father and awarding
Mother extended parenting time to include every weekend from 6:00 p.m. on Friday
evening until 7:00 p.m. on Sunday evening as well as one-half of summer vacation time
and every spring break. In its order, the trial court explained that the two parties have
basically shared split custody since the dissolution and that there is no preference for one
parent over the other. The court further explained that it had considered all of the
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statutory factors and found a substantial and continuing change in circumstances caused
by A.R.’s increased age and readiness for regular school. Mother now appeals.
DISCUSSION AND DECISION
We review child custody modifications for an abuse of discretion. Julie C. v.
Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010). Appellate deference to the
determinations of our trial court judges, especially in domestic relations matters, is
warranted because of their unique, direct interactions with the parties face-to-face, often
over an extended period of time. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). Trial
court judges are therefore able to assess witness credibility and character through both
factual testimony and intuitive discernment. Id. They are also in a superior position to
ascertain information and apply common sense, particularly in the determination of the
best interests of the involved children. Id.
In the initial custody determination, both parents are presumed equally entitled to
custody, but a petitioner seeking a subsequent modification bears the burden of
demonstrating that the existing custody order should be altered. Julie C., 924 N.E.2d at
1256. When reviewing a trial court’s decision modifying custody, we may not reweigh
the evidence or judge the credibility of witnesses. Id. Rather, we consider only the
evidence most favorable to the judgment and any reasonable inferences to be drawn
therefrom. Id.
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Indiana Code section 31-17-2-21 provides that a trial court may not modify a child
custody order unless 1) the modification is in the best interests of the child, and 2) there is
a substantial change in one or more of the factors that the court may consider under
Indiana Code section 31-17-2-8. Section 31-17-2-81 provides that the trial court is to
consider all relevant factors, including:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or 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 parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best
interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.
(8) Evidence that the child has been cared for by a de facto custodian.
Here, Mother first contends that the trial court erred when it found that the parties
had split custody of A.R. because the dissolution decree clearly awarded Mother primary
physical custody of her son. However, our review of the evidence reveals that although
Mother had physical custody of her son, the court order provided Father with 182
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Mother correctly points out that the trial court stated that it considered the factors set forth in Indiana
Code section 31-14-13-2, which is the paternity statute rather than the child custody modification statute.
However, both statutes set forth the same factors. The trial court therefore considered the proper factors,
and the court’s only mistake was as to the citation.
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overnight visits. Further, during her testimony, Mother admitted that she and Father split
custody of their son. We find no error in the trial court’s statement, which is supported
by the facts and the parties’ admissions, is not erroneous, and we find no error.
Mother also argues that the trial court erred in modifying custody in favor of
Father. However, our review of the evidence reveals that the trial court’s judgment
contains its own express finding that there was a substantial change in circumstances
caused by A.R.’s increased age and his preparing to go to regular school. We cannot
conclude that this was error, and Mother’s argument that the change was not substantial
enough to support the custody modification is merely a request to reweigh the evidence,
which we cannot do.
Put another way, an appellate court may not substitute its own judgment for that of
the trial court if any evidence or legitimate inferences support the trial court’s judgment.
Best, 941 N.E.2d at 503. On appeal it is not enough that the evidence might support
some other conclusion, but it must positively require the conclusion contended for by the
appellant before there is a basis for reversal. Id. Here, the evidence simply does not
positively require Mother’s conclusion, and we find no error in the trial court’s decision
to place A.R.’s primary physical custody with Father, subject to its specifications of
parenting time, which Mother does not challenge.
The judgment of the trial court is affirmed.
KIRSCH, J., and BROWN, J., concur.
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