Dawn (Gruca) Jones v. Steven Alan Gruca ( 2020 )

FILED
Jun 18 2020, 9:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Julie C. Dixon William O. Harrington
Alexander N. Moseley Harrington Law, P.C.
Brian L. Ciyou Danville, Indiana
Ciyou and Dixon, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dawn (Gruca) Jones, June 18, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-DR-2484
v. Appeal from the Hendricks
Superior Court
Steven Alan Gruca, The Honorable Rhett M. Stuard,
Appellee-Respondent. Special Judge
Trial Court Cause No.
32D02-1501-DR-33
Najam, Judge.
Statement of the Case
[1] Dawn Jones (“Mother”) appeals the dissolution court’s denial of her motion to
modify child custody. Mother raises three issues for our review, which we
restate as the following two issues:
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 1 of 22
1. Whether the dissolution court’s decision to deny Mother’s
motion is supported by substantial evidence.
2. Whether the trial court denied the parties their
constitutional rights when it ordered them to work with a
parenting coordinator prior to filing future motions or
petitions with the court.
[2] We affirm.
Facts and Procedural History
[3] Mother and Steven Gruca (“Father”) were married in 1999 and had two
children during the marriage, D.G. and B.G. (“the children”). Thereafter,
Mother filed a petition for dissolution of the marriage. In May of 2018, the trial
court held a fact-finding hearing on the dissolution petition, after which it
entered its order dissolving the marriage and establishing custody, parenting
time, and child support for the children.
[4] Following the fact-finding hearing but prior to the entry of the decree of
dissolution, Mother moved to modify custody over the children. After various
other motions and additional fact-finding hearings, in September 2019 the court
entered its order denying Mother’s motion. In relevant part, the court’s
September 2019 order found and concluded as follows:
3. Currently, the parties share joint legal and shared physical
custody of the boys and exercise a 2/2/3 parenting time
schedule.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 2 of 22
4. Mother alleges in her Motion for Modification that several
continuing changes in circumstances exist that warrant a
modification of custody and visitation and that a change is in the
best interest of the children.
5. Indiana Code § 31-17-2-21 allows the Court to modify custody
only if [(1)] a “modification is in the child’s best interests and (2)
there is a substantial change in one of several factors that a court
may consider in initially determining custody.”
6. Among others, some of those factors are: “ . . . (2) the wishes
of the child’s parent or parents; (3) the child’s wishes, with more
consideration given to the wishes of a child who is at least
fourteen years old; (4) the child’s interaction and
interrelationship with his or her parents, siblings, and any other
person who may significantly affect the child’s best interests; (5)
the child’s adjustment to his or her home, school, and
community; (6) the mental and physical health of all individuals
involved . . . .” Id.
7. There must be a showing of “something more than isolated
acts of misconduct . . . to warrant a modification of child
custody.” Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App.
1996).
8. In considering the foregoing “best interests” factors, the trial
court’s inquiry is strictly limited to consideration of changes in
circumstances which have occurred since the last custody decree.
Mundon v. Mundon, 703 N.E.2d 1130, 1133-34 (Ind. Ct. App.
1999).
9. Mother alleges several factors have changed.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 3 of 22
10. First, Mother alleges that [D.G.] has explicitly and
unequivocally expressed his desire to primarily live with Mother
and have regular parenting time with Father.
11. Second, Mother alleges that Father does not effectively help
[D.G.] with his homework and this results in Mother having to
assist him, often at the last minute.
12. Third, Mother alleges that [B.G.] has regressed in his school
work and that he is “now failing several classes.”
13. Fourth, Mother alleges that [B.G.] has re-developed the
behavioral problems and that he had to return to counseling.
14. Fifth, Mother alleges that while in Father’s care the children
are allowed to play video games, thereby “stunting their
intellectual growth.”
15. Sixth, Mother alleges that Father focuses his interactions
with the children solely on sports and ignores the children’s other
interests.
16. Seventh, Mother alleges that [D.G.] has developed a weight
problem and that Father feeds the kids only “junk food” or “fast
food.”
17. Eighth, Mother alleges that [D.G.] does not desire to live
with Father.
18. Before addressing Mother’s contentions, the Court notes that
the Motion for Modification at issue here was filed by Mother
BEFORE the Court could issue findings and conclusions
regarding visitation . . . .
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 4 of 22
19. At the May 15, 2018[,] hearing . . . the parties informed the
Court that the 2/2/3 schedule arranged by the Parenting
Coordinator (“PC”) was working and providing them with
approximately equal parenting time.
20. However, just 30 days after the hearing and 5 days PRIOR to
the submission of her proposed findings from that hearing,
Mother filed the present Motion to Modify.
21. The point is, Mother did not even wait to see what the Court
decided[] before deciding there needed to be a change.
22. Petitions, like Mother’s in this case, are why the holding in
Mundon, 703 N.E.2d 1130, exists. A court may make a
determination of what is in the best interests of the children,
based on all the available evidence existing up to that point, and
those issues are forever put to rest.
23. The Court, and the parties, may rely on the fact that all of
those issues have been resolved and only NEW issues or
information will be presented to the Court at a later date.
24. If not for this holding, a litigant could dredge up any incident
from the past, including one already litigated, and present it to
the Court at any time. The litigation would never end.
25. Therefore, this Court could hold that everything Mother
raises in her petition is moot because the allegations must have
occurred BEFORE the most recent custody order was issued.
26. A holding by the court such as this would comport with the
law and public policy. However, given the history of this case, as
well as the time and money invested by all involved, the Court
doubts that anyone would be satisfied with such an outcome.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 5 of 22
27. Therefore, the Court will address the issues on the merits.
28. A number of the issues raised in Mother’s motion amount to
little more than her disagreement with Father’s parenting style
and are not a true change in circumstances. Father allows the
boys to play video games. Father feeds the boys junk food.
Father engages the boys in conversations mostly about sports.
29. Evidence presented to the Court also made clear that Mother
has made no serious attempt to co-parent or to utilize the services
of the PC in good faith.
30. Mother’s hired custody evaluator, Dr. Bart Ferraro, went so
far as to conclude on page 74 of his report that the Court should
“scrutinize more carefully [Mother’s] cooperation in the
Parenting Coordination process and administer sanctions for any
new or continued pattern of resistance or obstruction . . . .”
31. All of this speaks loudly to the Court about Mother’s
displeasure with the original findings . . . .
32. It is clear that Mother has made little to no effort to
cooperate or co-parent and is partially attempting to re-litigate
the custody issues originally heard in this case more than 2 years
ago.
33. It is through this lens that the Court will examine Mother’s
claims of substantial and continuing changes that necessitate a
modification in custody and visitation.
34. The Court finds little or no evidence was presented to
substantiate the allegations listed as numbers 2, 3, 4, 5, 6, and 7
above.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 6 of 22
35. There is insufficient evidence to conclude that these
allegations constitute such a substantial and continuing change in
circumstances so as to support a modification of custody and
visitation.
36. Allegation 2 has some basis in truth, as admitted by Father,
but the parties partially resolved this by arranging for the boys to
be dropped off by the bus at Mother’s home every night after
school so she could help them with their homework.
37. Further, Father testified that[,] although he may not assist
the boys with their homework in the fashion Mother would like,
the boys work hard when at his house to finish their homework
in a correct and timely fashion.
38. The Court further finds that[,] while Mother may not find
Father’s assistance to be to her liking, the boys are achieving
good grades under the current arrangement.
39. Therefore, allegation 2 is insufficient to render the current
arrangement unreasonable so as to justify a modification.
40. Allegation 3 was proved to be patently false.
41. Evidence was presented showing [B.G.] making all A’s.
42. Although at the time the motion was filed [B.G.’s] grades
may have been lower, no evidence at all was presented to show
this is a continuing issue for [B.G.]. The Court finds it
disingenuous by Mother to even advance this claim.
43. Allegation 4, that [B.G.] has had to return to counseling is
also insufficient to support a modification.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 7 of 22
44. Dr. Ferraro opines on Page 71 of his report that [B.G.’s]
counselor has not been kept appraised [sic] of [B.G.’s] continuing
issues and according to the counselor THIS established the
counselor’s need to reevaluate and consider resuming treatment
of [B.G.].
45. Mother proved nothing done by Father that resulted in the
need to return [B.G.] to counseling. She relies primarily on her
general displeasure with Father’s parenting style and her belief
this is harming the boys.
46. The Court finds that the ongoing conflict resulted in [B.G.’s]
need to return to counseling and not anything in particular done
by Father.
47. The fact that [B.G.] needs further assistance to deal with his
parents’ issues is not uncommon nor a development that
warrants a modification.
48. Allegation 5 is that the boys’ intellectual growth is being
“stunted” by playing video games at Father’s house.
49. First, the Court notes that the boys play video games at both
homes.
50. Second, the Court notes that the boys appear to be doing
well in school, based on their grades and the reports of their
teachers.
51. Mother may not like how Father runs his home, but she has
shown no evidence to support her allegations related to the
detrimental effect of video games at Father’s home.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 8 of 22
52. Allegation 6 is that Father only engages the boys in
conversations about sports and that this is detrimental to them.
53. Testimony offered at the hearing, as well as observations
made by the boys’ teachers, relatives, and Dr. Ferraro, prove this
allegation to be overblown at best.
54. Many fathers and sons spend time talking sports. Although
this shouldn’t be the only topic they discuss, it is not necessarily
unhealthy.
55. In this case, evidence was presented that Father talks to his
sons about many things including homework, school, movies,
and food.
56. No evidence was presented that convinces this Court that
Father spends an inordinate amount of time talking sports with
his sons, nor that his interactions with them warrant a
modification in custody or parenting time.
57. Allegation 7 is that [F]ather feeds the kids poorly and that
[D.G.] has a weight problem.
58. Pursuant to the testimony of both parents, [D.G.] is a very
good offensive lineman for the Avon High School football team,
recently ranked #1 in Class 6A in Indiana.
59. Offensive linemen are large human beings, usually with
nimble feet and quick hands, who are required to push, pull,
shove, and run on nearly every play.
60. The Court does not know [D.G.’s] actual weight but doubts
that during football season he can consume enough calories to
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 9 of 22
replace those he regularly burns at practice, in the weight room,
and during games.
61. Father testified that although he is not a great cook, he
makes spaghetti and other meals for the boys at his home.
Additionally, they eat school lunches daily and could eat
breakfast at school if needs be.
62. The Court finds insufficient evidence exists to support
Mother’s claims.
63. Finally, allegations number 1 and number 8 made by Mother
are effectively the same, that [D.G.] has explicitly and
unequivocally expressed his desire to primarily live with Mother
and have regular parenting time with Father.
64. [D.G.] is, by all accounts, a fine young man who likes to
hunt and fish and is an offensive lineman for the football team at
Avon High School.
65. [D.G.] struggles somewhat in school and has an IEP in
place, but on the whole makes good grades consisting mostly of
A’s and B’s with occasional lower marks sprinkled in.
66. The Court does not doubt that he desires the drama between
his parents to end, nor that he has expressed his desire to live
primarily with Mother.
67. What the Court must ascertain is whether this desire satisfies
the requirements of Indiana Code § 31-17-2-21 warranting a
modification of custody and visitation.
68. The Court notes that [B.G.] did not consistently express the
same strong desire as [D.G.] to live primarily with Mother.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 10 of 22
69. At one session with Dr. Ferraro, [B.G.] seemed to like the
split custody relationship because it meant that he got to see both
of his parents more regularly.
70. At a different session, [B.G.] expressed preference for going
to Mother’s home over Father’s.
71. Although younger than [D.G.], [B.G’s] wishes must be
considered as well.
72. The recommendation of Dr. Ferraro is that the Court modify
the custody arrangement to place primary physical custody with
Mother and grant Father strictly guideline visitation.
73. To minimize conflict, Dr. Ferraro urged the Court to allow
no deviation to this arrangement to be made by the parents, even
by agreement.
74. Neither Mother nor Father testified that they were satisfied
with this suggestion.
75. Father would be losing significant time with the children.
76. Mother argued that an order allowing no alterations would
prevent the parties from allowing the boys to do special things
with friends or family when those things happened during the
other parent’s scheduled parenting time.
77. The Court heard copious testimony that [D.G.] loves
spending time with his maternal grandfather (“Grandpa”) and
often he hunts, fishes, and works on cars with Grandpa during
Father’s parenting time.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 11 of 22
78. Under Dr. Ferraro’s recommendation, this could not occur.
79. The testimony presented to the Court convinces the Court
that Grandpa is [D.G.’s] hero.
80. The Court has no qualms about [D.G.] spending time with
Grandpa and listened to Grandpa testify about the things he
teaches [D.G.].
81. He appears to be a very good role-model for [D.G.] and
[D.G.] loves him very much.
82. [D.G.] was asked by Dr. Ferraro what three “magical”
wishes he would make and his first was for Grandpa to “always
be with him.”
83. Thus, strictly adopting Dr. Ferraro’s recommendation might
well do more harm than good to this young man.
84. The Court will not take that risk.
85. Thus, in light of the above and considering the factors listed
in Indiana Code § 31-17-2-21, the Court finds that it is NOT in
the best interests of the parties’ minor children to modify the
current custody arrangement and therefore DENIES Mother’s
petition.
86. Although conflict between the parents is high, the Court does
not find sufficient factors exist to warrant a change in custody or
visitation, nor that this is in the children’s best interest.
87. The Court is FIRMLY convinced that any conflicts that have
arisen in this case are due to the behaviors of the parents,
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 12 of 22
primarily Mother, and that if this high drama would stop, the
boys could thrive under the current schedule.
88. Mother simply has not given the Court’s original order a
chance to work.
89. She has not cooperated with the PC.
90. She refuses to co-parent with Father.
91. Until such time as she can demonstrate to the Court[] that[,]
despite her best efforts and her cooperation, the current
arrangement is not beneficial to the children, the Court will not
enter an order modifying custody or visitation.
92. In that light and pursuant to the Court’s prior orders, the PC
remains appointed in this cause and the parties are still under an
obligation to cooperate with her and seek her counsel.
93. The Court cautions Mother that any further refusal to
cooperate with the PC, any further actions such as ignoring the
PC or refusing to follow her recommendations, could result in
severe sanctions.
94. This Court will not tolerate further behavior of this nature.
***
114. Effective as of the date of this ORDER, prior to the filing of
any petition by either party to modify custody, support,
visitation, regarding summer parenting schedules, regarding
additional parenting time, or similar matters, the parties must
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 13 of 22
first engage the services of the PC and cooperate with her
requests for information and/or meetings.
115. Moreover, the parties must make a good faith effort to
comply with the recommendations of the PC or, if the party
believes the PC’s recommendation is in contravention of the law,
to explain in detail to the PC why and to work out a
compromise.
116. If, after all of this, the parties still do not agree with the
recommendations of the PC or they believe them to be in
contravention of law, the parties may file a petition with the
Court asking the Court to make a final decision on the issue.
117. Any such petition SHALL explain in great and exacting
detail, citing legal authority where appropriate, what specific
recommendation of the PC they disagree with, why they disagree
with it, what they have done to resolve the issue (citing specific
discussions they have had with the PC and the opposing party),
and shall provide to the Court a viable alternative compromise to
resolve the matter.
118. The Court will not consider any complaints in the nature of
a general disagreement with the PC’s decision.
119. With regard to any petitions filed with this Court that the
Court deems frivolous, cumulative, and/or unfounded, including
those that do not comply with the above, the Court will assess
costs and attorney fees to the party filing such a petition.
120. Moreover, in any instance where the Court finds that a
party flagrantly ignored the orders of the Court or the PC, the
Court will impose sanctions.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 14 of 22
Appellant’s App. Vol. II at 37-46, 48 (some internal citations omitted and some
alterations in original). This appeal ensued.
Discussion and Decision
Standard of Review
[5] Mother appeals the dissolution court’s denial of her motion to modify custody.
In denying Mother’s motion, the court entered findings of fact and conclusions
thereon following an evidentiary hearing. In such appeals, we review the
court’s judgment under our clearly erroneous standard. E.g., Salyer v.
Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020).
We “neither reweigh evidence nor judge witness credibility.” R.L. v. Ind. Dep’t
of Child Servs. & Child Advocates, Inc., 144 N.E.3d 686, 689 (Ind. 2020). Rather, a
judgment is clearly erroneous only when there are no record facts that support
the judgment or if the court applied an incorrect legal standard to the facts. Id.[6] Moreover, Mother bore the burden of proof on her motion in the trial court.
Thus, her appeal from the court’s denial of that motion is an appeal from a
negative judgment. Town of Brownsburg v. Fight Against Brownsburg Annexation,
124 N.E.3d 597, 601 (Ind. 2019). “Under our case law, the party challenging a
negative judgment generally must show on appeal that the evidence leads
unerringly and unmistakably to a decision opposite that reached by the trial
court.” Id. (quotation marks, omission, and citation omitted).
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 15 of 22
Issue One: Whether the Court’s Judgment is Supported by the Record
[7] Mother first asserts that the court’s judgment is clearly erroneous because it is
not supported by sufficient evidence. Specifically, Mother first argues that the
court’s September 2019 order does not sufficiently identify a valid basis for its
decision to deny her motion for modification. Second, Mother asserts that the
evidence does not support the court’s judgment.
[8] We first address Mother’s argument that the court’s written order fails to make
its judgment clear. In particular, Mother complains that many of the court’s
findings are mere recitations of arguments or statutes; that the court “spent a
considerable amount of time chastising Mother,” Appellant’s Br. at 16; that the
court somehow inappropriately “seemed to focus more on disproving Mother’s
allegations,” id. at 20; that the findings “fail to properly consider the statutory
factors” regarding the best interests of the children, id.; that the court was
obliged to address every possible statutory factor and the failure to mention an
irrelevant factor is per se reversible error, id. at 20-21; and that the court failed to
explicitly identify the statutory factors on which it did rely. 1
[9] As our Supreme Court has made clear:
The principal purpose of findings of fact “is to have the record
show the basis of the trial court’s decision so that on review the
1
In a footnote, Mother suggests that the trial court failed to give the parties an opportunity to submit
proposed findings of fact and conclusions thereon. Insofar as Mother’s footnote is intended to be an
argument on appeal, it is not supported by cogent reasoning or citations to authority or the record on appeal.
Accordingly, we do not consider it. See Ind. Appellate Rule 46(A)(8)(a).
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 16 of 22
appellate court may more readily understand the former’s view of
the controversy.” Love v. State, 257 Ind. 57, 59, 272 N.E.2d 456,
458 (1971) (quoting 3 William F. Harvey, Indiana Practice 426
(1970)). Findings of fact must be “sufficient to enable this Court
to dispose of the issues upon appeal.” Taylor v. State, 472 N.E.2d
891, 892 (Ind. 1985).
Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind. 1999).
[10] We cannot agree with Mother’s first argument. No reasonable person would
read the trial court’s judgment, as reproduced in substantial part above, and
reach any of Mother’s conclusions or otherwise be left with any uncertainty as
to the basis for the court’s judgment. Being generous to Mother’s argument on
this issue, we conclude that, at best, she is attempting to elevate technicalities or
form over the clear substance of the trial court’s judgment, which we decline to
do. We reject Mother’s first argument.
[11] Mother next asserts that the trial court’s findings of fact are not supported by
substantial evidence. In particular, she asserts that the trial court clearly erred
when it concluded that there was insufficient evidence to justify a modification
in custody. It is well established that, to modify an existing child support
order, 2 the modification must be in the best interests of the children and must be
based on a “substantial change” in one or more of the statutory factors that
2
Although the court concluded that Mother’s motion to modify was prematurely filed, it ultimately heard
evidence on her motion and rendered a judgment on the merits. Accordingly, we review the merits of the
court’s judgment.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 17 of 22
relate to a child’s best interests in determining custody. Ind. Code §§ 31-17-2-8,
-21 (2019).
[12] But Mother’s argument here is not well taken. Disregarding our standard of
review and her burden on appeal to show error, Mother simply asserts that
three of the statutory factors “have experienced a substantial change” and then
goes on to relitigate the evidence she finds favorable but that the trial court in
the first instance did not find worthy of credit or controlling. Appellant’s Br. at
23-40. That is, Mother does not demonstrate how the evidence as a whole
“leads unerringly and unmistakably to a decision opposite that reached by the
trial court.” Town of Brownsburg, 124 N.E.3d at 601. For example, she simply
disregards the fact that B.G.’s statements were ambiguous with respect to his
preferred living arrangement, and she does not attempt to explain why the court
might have erred in keeping the children together. She does not address the
court’s finding that the current schedule has benefitted B.G. academically. She
does not address the court’s finding that some of her allegations were “patently
false” and “disingenuous,” or that her “ongoing conflict” with Father has been
the root of some behavioral issues with the children. Appellant’s App. Vol. II
at 41. Nor does she address the court’s assessment that the recommendation of
Dr. Ferraro—on whose report Mother nearly exclusively relies—would likely
result in harm to the children and their relationship with Father. Thus, Mother
has not met her burden on appeal to show that the trial court erred when it
denied her motion to modify custody.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 18 of 22
Issue Two: Constitutionality of the Court’s Order for the
Parties to Proceed First with the Parenting Coordinator Before
Filing New Motions or Petitions with the Court
[13] We next address Mother’s assertion that the trial court denied her her
constitutional right under Article 1, Section 12 of the Indiana Constitution to
open courts when it ordered her to take future issues regarding custody,
support, or visitation to the PC before bringing those issues to the court. Father
agrees on appeal that the court’s order is erroneous in this respect.
[14] Although we appreciate the parties’ willingness to reach an agreement, we are
not bound to accept it. Our trial courts have broad discretion in the
management of their dockets, and that discretion extends to limiting the filings
of parties who have demonstrated an abuse of the court’s docket in the past. Cf.
KS&E Sports v. Runnels, 72 N.E.3d 892, 905 (Ind. 2017) (“the Open Courts
clause does not prohibit all conditions on access to the courts”) (quotation
marks omitted). Indeed, the Indiana Supreme Court has expressly recognized,
in matters involving custody and parenting time, that our trial courts “may, in
the exercise of sound discretion in discrete cases, order mediation as a
prerequisite to the filing of requests for future proceedings . . . .” Fuchs v.
Martin, 845 N.E.2d 1038, 1042 (Ind. 2006).
[15] And, here, the trial court found as follows:
87. The Court is FIRMLY convinced that any conflicts that have
arisen in this case are due to the behaviors of the parents,
primarily Mother, and that if this high drama would stop, the
boys could thrive under the current schedule.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 19 of 22
88. Mother simply has not given the Court’s original order a
chance to work.
89. She has not cooperated with the PC.
90. She refuses to co-parent with Father.
91. Until such time as she can demonstrate to the Court[] that[,]
despite her best efforts and her cooperation, the current
arrangement is not beneficial to the children, the Court will not
enter an order modifying custody or visitation.
92. In that light and pursuant to the Court’s prior orders, the PC
remains appointed in this cause and the parties are still under an
obligation to cooperate with her and seek her counsel.
93. The Court cautions Mother that any further refusal to
cooperate with the PC, any further actions such as ignoring the
PC or refusing to follow her recommendations, could result in
severe sanctions.
94. This Court will not tolerate further behavior of this nature.
Appellant’s App. Vol. II at 45-46. Moreover, the court did not prohibit the
parties from access to future court filings. Rather, the court imposed “a
prerequisite to the filing of requests for future proceedings,” Fuchs, 845 N.E.2d
at 1042, when it instructed as follows:
114. Effective as of the date of this ORDER, prior to the filing of
any petition by either party to modify custody, support,
visitation, regarding summer parenting schedules, regarding
additional parenting time, or similar matters, the parties must
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 20 of 22
first engage the services of the PC and cooperate with her
requests for information and/or meetings.
115. Moreover, the parties must make a good faith effort to
comply with the recommendations of the PC or, if the party
believes the PC’s recommendation is in contravention of the law,
to explain in detail to the PC why and to work out a
compromise.
116. If, after all of this, the parties still do not agree with the
recommendations of the PC or they believe them to be in
contravention of law, the parties may file a petition with the
Court asking the Court to make a final decision on the issue.
117. Any such petition SHALL explain in great and exacting
detail, citing legal authority where appropriate, what specific
recommendation of the PC they disagree with, why they disagree
with it, what they have done to resolve the issue (citing specific
discussions they have had with the PC and the opposing party),
and shall provide to the Court a viable alternative compromise to
resolve the matter.
118. The Court will not consider any complaints in the nature of
a general disagreement with the PC’s decision.
119. With regard to any petitions filed with this Court that the
Court deems frivolous, cumulative, and/or unfounded, including
those that do not comply with the above, the Court will assess
costs and attorney fees to the party filing such a petition.
120. Moreover, in any instance where the Court finds that a
party flagrantly ignored the orders of the Court or the PC, the
Court will impose sanctions.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 21 of 22
Appellant’s App. Vol. II at 48.
[16] Mother’s argument that the trial court erred does not challenge the factual basis
for the above findings. Rather, she simply asserts that any restriction on her
right to file a motion for modification is per se contrary to law. Mother is
incorrect. And, insofar as Mother asserts that the trial court improperly
delegated its judicial power by requiring the parties to first try to resolve their
disputes out of court with the PC, Mother’s argument is not supported by
cogent reasoning, and we do not consider it. App. R. 46(A)(8)(a).
Conclusion
[17] In sum, we affirm the trial court’s denial of Mother’s motion to modify custody.
[18] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 19A-DR-2484 | June 18, 2020 Page 22 of 22