Michael Bousum v. Amber Bousum (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 15 2019, 6:04 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Luisa M. White Richard D. Martin
Lafayette, Indiana Frankfort, Indiana
Lesley A. Meade
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Bousum, July 15, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-DR-2786
v. Appeal from the
Clinton Superior Court
Amber Bousum, The Honorable Justin H. Hunter,
Appellee-Respondent. Judge
Trial Court Cause No.
12D01-1109-DR-372
Altice, Judge.
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Case Summary
[1] As part of their dissolution of marriage in 2012, Michael Bousum (Father) and
Amber Bousum (Mother) agreed to joint legal and physical custody of their
minor son, X.B. After Father learned of inappropriate sexual conduct
occurring in 2017 between X.B. and Mother’s then-boyfriend’s two minor
children, Father sought sole physical custody of X.B. Father now appeals the
trial court’s order that denied his request to modify custody, ordered him to pay
weekly child support, and ordered him to pay a portion of Mother’s attorney
fees. Mother requests that this court assess appellate fees against Father for
substantive and procedural bad faith.
[2] We affirm.
Facts & Procedural History
[3] Mother and Father were married in 2007 and are the parents of one child, X.B.,
born in April 2008. Mother also has three older daughters, K.K. and twins,
K.B. and F.B. In September 2011, Father filed a petition for dissolution of
marriage. Due to contested custody, a guardian ad litem (GAL) was
appointed, Judy Afflerbach, and she filed a report (Prior GAL Report) with the
trial court. Thereafter, the parties entered into a Settlement Agreement that
provided that the parties would share joint physical and legal custody of X.B.
Because parenting time was equal and Father was paying certain expenses
associated with X.B., the parties agreed that a deviation from the Indiana Child
Support Guidelines was appropriate and “neither party shall pay any direct
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support obligation to the other at this time.” Appellee’s Appendix Vol. II at 5.
The Settlement Agreement provided that when X.B. reached school age, he
would be enrolled in the Clinton Prairie school district. The trial court
incorporated the parties’ Settlement Agreement into the Decree of Dissolution
and dissolved their marriage on October 29, 2012.
[4] At the time of the dissolution, Father was dating and living with Nicole, whom
he later married. 1 Father and Nicole moved from Colfax, Indiana, which is in
Clinton County, to a home in Clarks Hill, Indiana, in Tippecanoe County. At
the time of the dissolution, Mother was dating and living with a man, who had
a criminal history and was, according to Mother, an alcoholic. Mother ended
that relationship in 2012, and at some point thereafter began dating Justin.
Justin lived with Mother, and he exercised his alternating weekends of
parenting time with his two minor children, son T.H. and daughter K.H., at the
home he shared with Mother.
[5] On a Saturday in May 2017, nine-year-old X.B. shared with Mother that he and
T.H, who was twelve, had engaged in sexually inappropriate behavior. T.H.’s
eleven-year-old sister K.H. was also sometimes involved. Although X.B. asked
Mother not to tell Father, she contacted Father that day, and they agreed to
meet at the Frankfort office of the Indiana Department of Child Services (DCS)
on the upcoming Monday. Mother went to the DCS office to make a report
1
Nicole is Father’s fourth wife.
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and was instructed she had to call the 1-800 phone number to do so, which she
did. Father was not at the DCS office, and when Mother contacted him, he
told Mother that he had called the police reporting a suspected rape of X.B.
[6] Clinton County Sheriff’s Department Detective Daniel Roudebush investigated.
At DCS’s recommendation, X.B. was forensically interviewed on May 22,
2017, at Quintin’s House Advocacy Center. Detective Roudebush observed the
interview. During his investigation, Detective Roudebush interviewed T.H.
and K.H. and learned that there had been some incidents that occurred at
Mother’s residence and another incident involving two other children at a
neighbor’s home. Detective Roudebush learned that there appeared to have
been ten to fifteen incidents between X.B. and T.H. and one or two more that
also involved K.H. As to the incidents occurring at Mother’s home, police
believed they occurred mostly at night after Mother and Justin had gone to bed,
but a couple of instances occurred during daytime hours.
[7] Meanwhile, believing that T.H, who was older and physically larger than X.B.,
had been bullying X.B. and that the sexual acts, which may have included anal
penetration, had been forced upon X.B., Father took X.B. to the emergency
room on May 22 for examination. The emergency room physical examination
did not reveal any issues, but at the direction of emergency room personnel,
Father took X.P. to the family pediatrician. At that doctor’s recommendation,
Father contacted a sexual trauma counselor, Jill Zimmer, for X.B. to begin
counseling sessions. Father did not consult with Mother before taking X.B. to
the emergency room, the pediatrician, or the initial meeting with Zimmer.
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Mother learned of the counseling when she was informed that she needed to
sign a release for X.B. to receive the counseling treatment.
[8] On June 2, 2017, Father filed a Verified Petition to Modify Custody, Parenting
Time and Child Support and Request for Expedited Hearing (Petition to
Modify). He also filed, in a separate court and on X.B.’s behalf, a request for
protective order against T.H. In his Petition to Modify, Father asserted, in part,
that he took X.B. to the emergency room on May 22 after X.B. had told him
that he was sexually assaulted by Mother’s boyfriend’s twelve-year-old son and
that it had been ongoing for a month, that DCS had been contacted, and that
the Clinton County Sheriff’s Department was currently investigating. Father
further alleged:
5. The Mother is not meeting the medical, physical and
psychological needs of the minor child while in her care and the
child is not thriving under the current custodial arrangement.
6. There has been a substantial and continuing change of
circumstances and it is now in the best interests of the minor
child that the Father, Michael Bousum, be granted sole physical
custody of his son.
7. That the court change parenting time at its discretion and what
is in the best interest of the child.
8. That a modification in child support is warranted to reflect the
new custodial arrangement.
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Appellant’s Appendix Vol. II at 29. In August 2017, the trial court re-appointed
GAL Afflerbach, subject to her acceptance, and directed the GAL to prepare a
supplemental report. GAL Afflerbach, however, declined the appointment. On
September 26, 2017, Cynthia Harmon was appointed as GAL in the case.
[9] After conducting an investigation, Deputy Roudebush spoke to the county’s
chief deputy prosecutor, and it was determined that no criminal charges would
be filed in the case, as “the activity appeared to be mutual in that it appeared to
be exploration” and “while inappropriate,” law enforcement did not believe it
was criminal in nature, nor did they believe that there had been a lack of
parental supervision or neglect. Transcript Vol. 1 at 46. Detective Roudebush
noted that, in his opinion, both parents displayed “appropriate responses,
appropriate concerns for what was going on” and were “taking action and
trying to correct it and mak[e] sure the right thing was done.” Id. at 48.
[10] Similarly, DCS family case manager Morgan Smith determined that allegations
of child abuse or neglect were unsubstantiated and that X.B. did not need
services. FCM Smith did not find any lack of supervision by either parent, but
prepared a Safety Plan, to keep the children involved separated and, if together,
supervised. The Safety Plan also recommended that Justin’s alternating
weekends with T.H. and K.H. not correspond to X.B.’s time at Mother’s home.
The Safety Plan recommended seeking counseling for the children involved.
On June 19, 2017, Mother, Justin, and the mother of T.H. and K.H. signed the
Safety Plan. Father did not, as he disagreed with the finding that the report was
unsubstantiated.
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[11] Sometime between the events of May 2017 and the fall of 2017, Mother and
Justin ended their relationship, and he moved out of the residence. In October
2017, Mother moved from Colfax to Frankfort, Indiana. In November 2017,
Mother’s boyfriend, Richie, moved into her residence.
[12] X.B. continued to attend weekly counseling with Zimmer from June 2017 to
December 2017, when he was released from treatment. The sessions usually
were between Zimmer and X.B. only, but Father and Nicole participated in a
couple of sessions. Mother took X.B. to a few sessions, but did not participate,
as she believed she was not permitted to do so. Zimmer’s diagnostic impression
of X.B. was adjustment disorder unspecified.
[13] The trial court initially scheduled a hearing on Father’s Petition to Modify for
July 17, 2017, but it was continued a number of times and reset for April 11,
2018. On April 1, 2018, GAL Harmon emailed her report to counsel for both
parties, and on April 2, 2018, she filed it with the court. Mother filed an
Objection to Introduction of Guardian ad Litem Report and Request for
Continuance of Hearing, asserting that the report was not timely filed prior to
the scheduled hearing and that the report contained matters that occurred
before the dissolution. On April 24, the trial court reset the hearing for May 24.
On May 23, Mother filed an Objection and Motion to Strike References to
Former Guardian ad Litem’s Report and Recommendations in Report of
Guardian ad Litem, arguing that the report included matters that occurred
before the decree of dissolution and referred to the Prior GAL Report that “was
never introduced in evidence, is not part of the record herein[.]” Appellant’s
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Appendix Vol. II at 69-70. Mother’s Motion to Strike asked the trial court to
strike or disregard references to the Prior GAL Report “and/or
recommendation contained in the current Guardian Ad Litem Report.” Id. at
70.
[14] The hearing on Father’s Petition to Modify commenced on May 24, 2018, and
continued on June 21 and August 28. Before the presentation of evidence, and
after receiving argument from the parties on Mother’s Motion to Strike, the trial
court denied Mother’s Motion to Strike. In doing so, the court observed that
because the parties reached a Settlement Agreement during dissolution, “There
wasn’t [] a hearing to adjudicate the issue of custody. And so I [] think it is
necessary that I understand a context.” Transcript Vol. 1 at 12.
[15] During the three days of hearings, Father called, among other witnesses, GAL
Harmon. Her report was admitted over Mother’s objection. In preparing her
report and making her recommendation, GAL Harmon considered DCS’s
report, the parties’ answers to interrogatories that she had sent them, medical
records, X.B.’s forensic interview, and the Prior GAL report. She also spoke
directly to Zimmer. She did not speak to Detective Roudebush or to DCS
FCM Smith.
[16] GAL Harmon recommended that it was in X.B.’s best interest that the parties
continue to share joint legal custody but that Father have primary physical
custody of X.B. with Mother having, at a minimum, parenting time provided by
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the Guidelines and at other times as the parties agree. When asked to explain
what concerns led her to make that recommendation, she explained, in part:
[T]here was extensive inappropriate behaviors going on between
these children that should not have happened. I mean I know I
heard the testimony that by both DCS and by the police that
there was [] no neglect involved. Um and I would probably agree
with that. But for something to . . . be able to go on that long
and nobody catch it nobody notice it, that’s disturbing to me. I
was disturbed that DCS didn’t substantiate at least do an
informal adjustment and make sure all children involved received
the counseling that they needed. . . . Um for a nine year old that
the actions that I um saw in the report and from the forensic
interview it was not just a little bit of exploration. To me it went
well beyond that. And I think it was damaging to these children.
Id. at 67. GAL Harmon said there was nothing inappropriate about Mother’s
actual home, but felt that “situations” in her house may have made the
misconduct between the children “easier to happen,” observing that Mother
“had gone through at least two relationships during the time of [her]
investigation,” which caused Harmon some concern. Id. at 68. GAL Harmon
viewed it as a “pattern of behavior” that “can tend to cause more difficulties in
a home and things can happen as they did” here. Id. at 71. GAL Harmon
opined that being primarily with Father was in X.P.’s best interests for
“stability, for watching for future problems,” and if they do occur, “[Father]’s
going to seek out the assistance and help” for X.B.’s needs. Id. at 76.
[17] Zimmer also testified for Father. She was a therapist with the Indiana Center
for Children and Families, and she saw X.B. usually once a week. According
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to Zimmer, X.B. shared with her that he sometimes felt bullied by T.H. and that
T.H. and Justin had laughed at X.B. because he did not know what
pornography or pole dancing was. Zimmer recalled that X.B. became
physically ill and had to leave the room when describing an incident when he
performed oral sex on T.H. at Mother’s home. When asked why Father
participated in some of X.B.’s sessions and Mother did not, Zimmer explained
that Mother did not ask to participate and that she did not ask Mother back to
join them based on X.B.’s wishes. Zimmer characterized X.B. as “a very
emotionally intelligent” child, and she felt both parents were supportive of X.B.
Id. at 137. In Zimmer’s opinion, Father had the more stable home, which she
based in part on the fact that X.B. had told her that Mother “had a lot of
boyfriends at different times,” and Zimmer felt that “if you have a lot of people
moving in and out of the house” it can cause friction, tension, or a worse
situation, as happened in the current case. Id. at 148.
[18] Father testified that he and Nicole currently lived in a three-bedroom house in
Clarks Hill, in Tippecanoe County, X.B. is his only child, X.B. has his own
bedroom at the house, and Nicole has no children. Father testified to having
concerns about the living arrangement at Mother’s home, specifically her dating
and bringing different men to live in the home. He at first did not have
concerns with Justin living with Mother, but then began to believe that X.B.
was being bullied by T.H. When he would raise his concerns to Mother, she
would “play[] it off” and say “boys are boys.” Transcript Vol. 2 at 9, 11. Father
acknowledged that without notifying Mother, he took X.B. to the emergency
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room, the pediatrician, and then for an initial consultation with Zimmer, but he
explained that Mother was out of town on vacation and that his focus at that
point “was completely on X.B.” Id. at 20.
[19] Father’s main concern with Mother and her parenting was that “at times she is
more self oriented than family oriented,” moving from one boyfriend to
another, such that his concern is “who’s gonna live there next,” and that this
had been “an ongoing concern.” Id. at 25. On cross-examination, Father
acknowledged that he was “perturbed” with FCM Smith and DCS about their
conclusion that the matter was “unsubstantiated” and that he was told by FCM
Smith to speak to her supervisor in any future communication. Id. at 33.
Father agreed that X.B. was released by Zimmer but that he believed X.B.
suffered trauma as a result of what occurred between X.B. and Justin’s children
and that he had concerns for X.B.’s mental state in terms of issues that may
“show up in the future.” Id. at 40.
[20] Father testified that he works for Frito Lay as a maintenance mechanic from
7:00 a.m. to 3:30 p.m., making $31.88 per hour, and that he usually works
forty-eight hours per week. He stated that, year to date, he had earned $62,000,
and in 2017, he made around $90,000. He stated that neither he nor Mother
were currently living in the Clinton Prairie school district, although X.B. had
been continuing to attend school there, with Mother’s older daughters driving
him to school. Father stated that, if he were to gain primary custody, X.B.
would get picked up by a bus and go to the Tippecanoe County school district.
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[21] Mother testified that in October 2017 she moved from Colfax to Frankfort,
where she rents a five-bedroom home, in which her three daughters and one
grandchild also live, along with her boyfriend Richie, who has no children.
X.B. has his own bedroom at her home. Mother described that X.B. has a very
good relationship with her older daughters.
[22] Mother stated that when X.B. told her about the inappropriate contact, she
separated the kids, and she and Justin tried to talk with them about it, but they
were not forthcoming with information. She stated that she promptly told
Father, although X.B. had asked her not to. She and Father agreed to meet at
DCS but Father instead took X.B. to the emergency room without telling her.
She also was not told about the pediatrician or the counselor, until she was
contacted to sign release papers. Mother testified that Father had told her she
would not be allowed to participate in counseling, which Father denied having
said. Around the same time as all of this was happening, Mother had a pre-
planned trip to North Carolina to see her grandmother, and DCS told her to go
and take X.B., to keep his life normal, but that Father would not let her take
X.B. on the trip. She signed DCS’s Safety Plan, although she “thought it was a
little much,” given that the children were not “ever gonna be around each other
again.” Transcript Vol. 1 at 210.
[23] With regard to the conduct between X.B. and Justin’s children, Mother stated
that she did not believe X.B. was the victim of bullying or sexual assault, as
Father asserted. Rather, in her view,
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[T]hree children participated in acts that they were not suppose
[sic] to participate in. [X.B.] fully participated with the other two
children as well. He did things to a little girl. 2
Id. at 246. Mother testified that she had no further concerns about what
occurred because she was no longer dating Justin and X.B. was no longer
around T.H., and X.B. had been cleared from a therapist. Mother presented
evidence that X.B.’s grades had not suffered as a result of the situation, that he
was doing well, attending school, and participating in football. She believed
that it was in X.B.’s best interests for the joint physical custody arrangement to
continue.
[24] Mother asked the trial court to order Father to pay child support. She testified
that she also works at Frito Lay, where she has worked for the last six years
and, previously, for another seven years. Mother testified that she works in the
sanitation department and earns $18.36 per hour. Mother offered a proposed
child support worksheet, which was admitted over Father’s objection at the
hearing.
[25] The trial court took the matter under advisement, and the parties each
submitted proposed findings of fact and conclusions. The trial court issued its
Findings of Fact, Conclusions of Law and Order on September 24, 2018,
denying Father’s request to modify custody. It found that Father had failed to
2
Mother later clarified that she was referring to K.H.
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establish a change in the Ind. Code § 31-17-2-8 factors and failed to establish
that a modification of the existing custody arrangement was in X.B.’s best
interests. The trial court granted Mother’s request to establish child support,
ordering Father to pay $106 per week. The court found that Father was in
arrears in the amount of $6572 due to retroactive modification and ordered
Father to pay an additional $25 per week toward the arrearage. It also ordered
Father to pay $4500 in attorney fees to Mother’s counsel. Father filed a motion
to correct error, which the trial court summarily denied. Father now appeals.
Discussion & Decision
[26] At Mother’s request, the trial court in this case entered special findings of fact
and conclusions thereon pursuant to Trial Rule 52(A). Our review of such
findings and conclusions is two-tiered. Coulibaly v. Stevance, 85 N.E.3d 911, 915
(Ind. Ct. App. 2017). First, we consider whether the evidence supports the
findings, and second, whether the findings support the judgment. Id. The trial
court’s findings and conclusions will be set aside only if they are clearly
erroneous—that is, where a review of the record leaves us with a firm
conviction that a mistake has been made. Id. at 915-16. In conducting our
review, we will neither reweigh the evidence nor judge the credibility of
witnesses. Id. at 916. Instead, we consider only the evidence favorable to the
trial court’s judgment. Id.
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I. Child Custody
[27] Father contends the trial court should have granted his request to modify
custody. We review the trial court’s decision to modify custody for an abuse of
discretion, giving wide latitude and deference to the trial court. Collyear-Bell v.
Bell, 105 N.E.3d 176, 183 (Ind. Ct. App. 2018) (citing Kirk v. Kirk, 770 N.E.2d
304, 307 (Ind. 2002)). We do not reweigh the evidence or judge the credibility
of the witnesses. Kirk, 770 N.E.2d at 307. It is not enough that the evidence
might support some other conclusion, but it must positively require the
conclusion contended for by appellant before there is a basis for reversal. Id.
[28] Pursuant to Ind. Code § 31-17-2-21, a trial court may not modify an existing
custody order unless the modification is in the best interests of the child and
there has been a substantial change in one or more of the statutory factors set
forth in I.C. § 31-17-2-8. Collyear-Bell, 105 N.E.3d at 184. Those factors
include:
(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;
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(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[.]
Thus, to support custody modification under I.C. § 31-17-2-21, the following is
required: (1) a finding by the trial court that change would be in the child’s best
interests, (2) a consideration of the factors listed above, and (3) a finding that
there has been a substantial change in one of those factors. Collyear-Bell, 105
N.E.3d at 184.
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a. Prior GAL Report
[29] Father raises a number of challenges to the trial court’s decision to deny his
Petition to Modify, one of which is that the trial court erred when it gave
limited consideration to matters in GAL Harmon’s report concerning the Prior
GAL Report. In particular, Father challenges the trial court’s Findings of Fact
6 and 7 and Conclusion 8 which state:
6. The former Guardian Ad Litem’s report was not admitted
into evidence and the parties did not have an opportunity to
cross-examine Ms. Afflerbach regarding her report and
recommendations.
7. The Court previously denied Mother’s Motion to Strike related
to the former Guardian Ad Litem’s report and recommendations,
but gives limited weight to any testimony or references to the
former Guardian Ad Litem’s report and recommendations.
****
8. The prior Guardian Ad Litem’s (Judy Afflerbach) report was
not received in evidence at a hearing at which the parents had a
right to cross-examine said Guardian Ad Litem with respect to
her recommendation; Keen v. Keen, 629 N.E.2d 938, 940 (Ind. Ct.
App. 1994)
Appellant’s Appendix Vol. II at 18, 24.
[30] We find no reversible error with regard to these findings and conclusion or with
the trial court’s manner of handling the Prior GAL Report. The findings and
conclusion correctly observe that the Prior GAL Report was never admitted
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into evidence (having only been filed with the court prior to the decree) and,
because it was never presented at a hearing, its author was never subject to
cross-examination. Furthermore, as Finding 7 recognizes, when Mother sought
to strike Harmon’s GAL Report or portions of it that referred to the Prior GAL
Report, the trial court denied Mother’s request, thus allowing those references to
remain in Harmon’s report, which the trial court admitted.
[31] At the hearing, when Mother “renew[ed] [her] objection as to references to the
[Prior GAL Report]” the trial court sustained the objection, because it had
never been admitted in evidence, but stated:
[C]ertainly [Harmon] can consider it. It helps her understand the
context. . . . but . . . I don’t know that I have to hear the
specifics of that [Prior] GAL Report . . . that were . . . not
admitted to evidence. It may have been filed with the Court but
not admitted to evidence in any prior hearing. So you may
continue with questions just not uh specifically like [“]hey What
did that say[”] . . . kind of thing[.]
Transcript Vol. 1 at 69. Thus, the trial court found that it was permissible for
GAL Harmon to consider the Prior GAL Report when making her
recommendation, 3 but found it neither necessary nor appropriate for Harmon to
testify as to the specific contents thereof. Father has not established that the
3
We note that I.C. § 31-17-2-12(b), regarding a court-ordered investigation and report in child custody
matters, provides, in part: “In preparing a report concerning a child, the investigator may consult any person
who may have information about the child and the child’s potential custodial arrangements. . . . [T]he
investigator may consult with and obtain information from medical, psychiatric, or other expert persons who
have served the child in the past without obtaining the consent of the parent or the child’s custodian.”
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trial court’s decision was clearly erroneous. Father additionally challenges that
– as stated in Finding 7 – the trial court gave Harmon’s references to the Prior
GAL Report “limited weight.” Appellant’s Appendix Vol. II at 18. However, it
was well within the trial court’s discretion to determine what weight to give
such evidence.
[32] Father also claims that the trial court should have taken judicial notice of the
Prior GAL Report. While Ind. Evidence Rule 201(a)(2)(C) permits trial courts
to take judicial notice of court filings and contents of pleadings in the case
before it, we find no authority that a trial court is required to do so, nor does
Father provide any. In this case, the trial court permitted GAL Harmon to rely
on and refer to the Prior GAL Report when preparing her own report, which it
admitted into evidence. Father has not established any error with the trial
court’s decision to not take judicial notice of the Prior GAL Report.
b. Sustaining Objections / Mother’s Prior Conduct
[33] In a related vein, Father contends that the trial court erred “in sustaining
[Mother’s] objections to testimony and evidence [regarding matters] that
occurred [] before the last court order.” Appellant’s Brief at 20. Father does not
identify what specific evidence was offered and excluded, or the basis of any
objections, only citing generally to Transcript Vol. I pages “69149-150[,]” id. at
22, presumably referring to pages 69 and 149-50. This is an insufficient basis to
challenge the trial court’s evidentiary rulings, and the issue is waived. Ind.
Appellate Rule 46(A)(8); Ind. Evidence Rule 103(a)(2).
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[34] Waiver notwithstanding, we recognize that the gist of Father’s claim is that the
trial court should have allowed more testimony about matters that occurred
prior to the dissolution decree, in particular with regard to what he claims was
Mother’s “pattern of behavior [and] lifestyle choices” that “began before [the
Decree] and continued after” and “caused a substantial change” in the I.C. §
31-17-2-8 factors. Appellant’s Brief at 11-12. He challenges the trial court’s
Conclusions 3, 5, and 6, which state, in part:
3. In considering these factors, the trial court’s inquiry is strictly
limited to consideration of changes in circumstances which have
occurred since the last custody decree.
***
5. It is a well settled rule of law that the modification hearing
cannot be used to retry the issues settled by the divorce decree....
6. Evidence of conduct of the parties prior to the entry of a
Decree of Dissolution is properly excluded.
Appellant’s Appendix Vol. II at 23 (quotations and citations omitted). Father
asserts that these conclusions “fail to consider” I.C. § 31-17-2-21(c) (Subsection
21(c)), which provides that a trial court “shall not hear evidence on a matter
occurring before the last custody proceeding . . . unless the matter relates to a
change in the factors relating to the best interests of the child as described in
[I.C. § 31-17-2-8.]” Appellant’s Brief at 21. The trial court did not ignore
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Subsection 21(c), as Father claims, as it expressly included that language
elsewhere in its conclusions, namely in Conclusion 4. 4
[35] Father also argues that Conclusions 3, 5, and 6, and the trial court’s manner of
limiting evidence of matters occurring prior to the dissolution, were in conflict
with Dwyer v. Wynkoop, 684 N.E.2d 245 (Ind. Ct. App. 1997), trans. denied. In
that case, this court stated:
[W]hen parents stipulate as to who will have custody of the child
and the trial court grants a summary dissolution on the basis of
such agreement without hearing evidence on the issue of custody,
there is no “custody proceeding” that would activate [Subsection
21(c)] . . . Thus, this section does not apply to situations where
custody was originally determined solely by stipulation of the
parties.
Id. at 249. Father maintains that, pursuant to Dwyer, evidence of conduct prior
to the dissolution would be new and material information and should have been
allowed to be presented to the court and that, here, the court acted in
contravention of Dwyer. We disagree.
[36] First, as stated above, Father has not specifically identified what evidence, other
than the Prior GAL Report, which we have already addressed, should have
been admitted or more fully allowed to be discussed. Second, and as Mother
4
Conclusion 4 states: “Pursuant to Indiana Code § 31-17-2-8(c) [sic], ‘[T]he Court shall not hear evidence on
a matter occurring before the last custody proceeding between the parties unless the matter relates to a change
in the factors relating to the best interests of a child as described in [I.C. 31-17-2-8] and, if applicable [I.C. 31-
17-2-8.5].” Appellant’s Appendix Vol. II at 23-24.
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observes, some testimony on the subject of Mother’s past boyfriends or prior
conduct was, in fact, admitted. See e.g., Transcript Vol. 1 at 68 (Mother’s past
relationships), 239-41 (men living in her home and any criminal histories).
Third, even if as Father claims it was error for the trial court to not more fully
receive evidence on matters prior to the agreed dissolution, Father has not
shown that, if admitted, such evidence would “positively require” a change in
custody. Kirk, 770 N.E.2d at 307. Thus, we find any error was harmless.
c. Standard for Modification
[37] Father also asserts on appeal that, in deciding whether to modify custody, the
trial court applied “the wrong legal standard” and, more specifically, applied
one that was more stringent than what I.C. § 31-17-2-21 requires. In support of
his argument, he points to Conclusion 10, which states:
“Moreover, the non-custodial parent must show something more
than isolated acts of misconduct by the custodial parent to
warrant a modification of child custody; the non-custodial parent
must show that changed circumstances regarding the custodial
parent’s stability and the child’s well-being are substantial.”
Wallin, 668 N.E.2d [259,] @261 [(Ind. Ct. App. 1996)] citing
Simons v. Simons 566 N.E.2d 551, 555 (Ind.Ct.App.1991)[.]
Appellant’s Appendix Vol. II at 25. He argues that requiring a parent to show
“that changed circumstances regarding the custodial parent’s stability and the
child’s well-being are substantial” is not an accurate statement. We agree with
Father to the extent that this portion of Conclusion 10 somewhat muddles the
correct standard, but we find that the remainder of the court’s findings and
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conclusions state that, pursuant to I.C. § 31-17-2-21, a modification requires a
showing of a substantial change in at least one of the statutory factors of I.C. §
31-17-2-8, which section the court then fully sets out, as well as a showing that
modification is in the child’s best interests. We find that, considering the order
in its entirety, any misstatement in Conclusion 10 is not fatal to the court’s
decision.
d. Findings as Unsupported by Evidence
[38] Father also challenges the denial of his request for modification by asserting
that Findings 22, 28, 33, and 35 are not supported by the evidence. Finding 22
states: “The DCS prepared a safety plan which specified that [X.B.] would not
be in the presence of [Justin’s] children.” Appellant’s Appendix Vol. II at 20. His
quarrel is that the Safety Plan does not actually state that they not be in each
other’s presence; rather, it directs that the children be supervised when they are
together. We are unpersuaded that Finding 22 is a clearly erroneous finding, as
Father claims, and conclude that this technical distinction does not render
Finding 22 as unsupported by the evidence.
[39] Finding 28 states: “Both the Father and Guardian Ad Litem Harmon
speculate, without any evidence in support thereof, that the [Mother] failed to
adequately supervise [X.B.].” Id. Father maintains that GAL Harmon was not
speculating because her concerns were based on, among other things, the
forensic interview, DCS records, and medical records. GAL Harmon testified
that she was disturbed that extensive and inappropriate touching went
unnoticed. More specifically, she said “I just find it very hard to believe that
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activities of this nature could go on . . . for the period of time and the amount
without anyone’s knowledge or suspicion.” Transcript Vol. 1 at 83. On cross-
examination, she acknowledged that she was speculating as to the belief that
someone should have known. Thus, the trial court’s Finding 28 was supported
by the evidence.
[40] Father also argues that the evidence did not support Findings 33 and 35, which
concerned where X.B. did or would attend school, and stated:
33. Father’s proposed modification would result in [X.B.]
changing schools.
***
35. It is not in [X.B.]’s best interest to modify the existing custody
arrangement or to change his schooling from Clinton Prairie.
Appellant’s Appendix Vol. II at 21. Father maintains these are “erroneous on
their face” because it is undisputed that neither parent lives in Clinton Prairie
school system and, thus, “it does not follow that Father’s proposed
modification would result in X.B. changing schools.” Appellant’s Brief at 28.
The evidence, however, was that X.B. had been attending Clinton Prairie
school even though neither parent was still living in that district and that
Mother’s older daughters took him to school. Father testified that, if he were
awarded primary custody, then X.B. would begin attending school in the
district where Father lived in Tippecanoe County and would ride the bus.
Father has not shown that the findings were unsupported by the evidence.
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e. I.C. § 31-17-2-8 Factors
[41] Father also argues that the denial of his petition to modify was erroneous
because the trial court failed to consider all relevant factors under I.C. § 31-17-2-
8. In particular, Father notes that the trial court’s findings and conclusions “are
wholly void of relevant testimony of” Zimmer and GAL Harmon. Appellant’s
Brief at 24. Father’s argument in this regard is essentially a request to reweigh
the evidence, which we cannot do. We recognize that Zimmer and GAL
Harmon presented testimony and evidence that supported Father’s position in
favor of modification, namely that he had the more stable home and that each
recommended that he have primary physical custody. The trial court heard that
evidence, along with all the other evidence, and denied Father’s Petition to
Modify. This is not a case where the trial court failed to consider the necessary
statutory factors; indeed, its order stated that it did consider the factors. It
simply determined that Father “failed to establish the requisite change in any of
the factors outlined in Indiana Code 31-17-2-8.” Appellant’s Appendix Vol. II at
20. Father has not established that this determination was clearly erroneous.
[42] Indeed, Mother presented evidence that, upon learning of the inappropriate
conduct, she promptly contacted Father and arranged to make a report to DCS,
which she did. Father unilaterally took X.B. to the emergency room, the
pediatrician, and a counselor. Mother agreed to the counseling, once she
learned of it, but did not participate because, according to Mother, Father told
her she was not allowed to. Mother did not believe that this was a situation in
which X.B. had been bullied and was the victim of sexual assault. She agreed
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with Detective Roudebush and DCS that it was a situation that was definitely
inappropriate and needed to stop, and that precautions should be taken to keep
the children supervised at all times if together, but that it did not warrant
criminal charges or DCS involvement. Mother ended her relationship with
Justin, and she moved to a new town. She said X.B. was doing well in school
and participating in football. While Father’s proposed modification would
require X.B. to change schools, she stated that she would try to keep X.B.
attending Clinton Prairie schools, with her daughters continuing to transport
him, until they graduated at semester, at which time she would secure other
arrangements.
[43] Father’s Petition to Modify had asserted that X.B. was “not thriving under the
current custodial arrangement.” Appellant’s Appendix Vol. II at 29. The trial
court decided otherwise, and based on the record before us, we cannot say that
its decision was clearly erroneous. Accordingly, we affirm the trial court’s
decision to deny Father’s Petition to Modify.
II. Child Support
[44] Father challenges the trial court’s order of child support. “Decisions regarding
child support rest within the sound discretion of the trial court.” Taylor v.
Taylor, 42 N.E.3d 981, 986 (Ind. Ct. App. 2015), trans. denied. We reverse child
support determinations only if the trial court abused its discretion or made a
determination that is contrary to law. Id.
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[45] Here, the court ordered Father to pay child support in the amount of $106 per
week. Initially, Father claims that the trial court should not have entered a
support order in favor of Mother because “Mother never filed a cross motion to
modify support[.]” Appellant’s Brief at 32. We reject Father’s argument.
Father’s Petition to Modify asked the trial court to modify custody and order
child support, asserting that “a modification in child support is warranted to
reflect the new custodial arrangement.” Appellant’s Appendix Vol. II at 29. At the
hearing, Mother requested that the court not modify the joint custody
arrangement, but establish an order of support (as none has been provided in
the parties’ Settlement Agreement), and she submitted a proposed child support
worksheet that was admitted over Father’s objection. Both parties testified to
their respective incomes, and Father later submitted a child support order with
the court. 5 Given this record, the matter of child support was squarely before
the court, and it was not error for the trial court to order child support.
[46] Father also asserts that the trial court erred in its calculation of child support. 6
Child support calculations are made utilizing the income shares model set forth
in the Indiana Child Support Guidelines. In re Marriage of Duckworth, 989
5
The record indicates that Father emailed his proposed findings of fact and conclusions of law, along with a
proposed child support worksheet, to the court on September 19, 2018.
6
Father suggests that the trial court’s “wholesale adoption” of Mother’s proposed findings of fact and
conclusions caused or at least contributed to the allegedly-erroneous calculation of child support. Appellant’s
Brief at 29. As Father acknowledges, trial courts are permitted to adopt proposed findings. As Father further
recognizes, the trial court here, made a number of minor technical changes or additions to Mother’s proposed
findings and conclusions. We find that the trial court’s actions – to revise even small matters with which it
did not agree – reflect the court’s careful review of the proposed findings. Father has failed to establish any
error with the trial court’s use of Mother’s proposed findings and conclusions.
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N.E.2d 352, 354 (Ind. Ct. App. 2013). These Guidelines apportion the cost of
supporting children between the parents according to their means. Id. A
calculation of child support under the Guidelines is presumed valid. Id.
Indiana Child Support Guideline 3A(1) provides in part that “weekly gross
income” is defined “as actual weekly gross income of the parent if employed to
full capacity, potential income if unemployed or underemployed, and imputed
income based upon ‘in-kind’ benefits” and that “[w]eekly gross income of each
parent includes income from any source, except as excluded below, and
includes, but is not limited to, income from salaries, wages, commissions,
bonuses, overtime, partnership distributions, [and] dividends ....” Marshall v.
Marshall, 92 N.E.3d 1112, 1117 (Ind. Ct. App. 2018).
[47] Father specifically challenges Findings 38, 39, 43, 44, which state:
38. The Father works at Frito Lay in the maintenance
department, earning in excess of ninety-thousand dollars
($90,000) in 2017.
39. For child support purposes, the Court finds Father’s income
to be $1,693.73 per week.
43. Effective July 16, 2017, Father shall pay to Mother, by means
of an Income Withholding Order, child support in the sum of
$106.00 per week.
44. As of September 21, 2018, Father is in arrears in his child
support obligations due to the retroactive modification in the sum
of $6,572, which arrears shall be paid at the rate of $25.00 per
week until paid in full.
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Appellant’s Appendix Vol. II at 21-22.
[48] In particular, Father claims that the court’s computation of his weekly gross
income erroneously included overtime. Upon review, however, we find no
error in the court’s determination of support, which was in accordance with
Mother’s proposed child support worksheet. Her worksheet calculated Father’s
weekly gross income at $1693.73 per week, which extrapolates to $88,036 per
year. 7 Father testified that his income was approximately $90,000 in 2017,
which would calculate to $1730.77 per week. He also testified that, as of the
August 28, 2018 hearing, he had earned approximately $62,000 year to date,
which – based on having been paid for 35 weeks of the year – calculates to
$1771 per week. Furthermore, while Father testified that he earns $31.88 per
hour and generally works 48 hours per week, he agreed that he sometimes
works up to 56 hours per week. Given the record before us, Mother’s proposed
weekly gross income amount for Father of $1693.73 was within the scope of the
evidence presented.
[49] Father also contends that the trial court erroneously ordered retroactive support
“to a date that the Chronological Case Summary shows nothing being filed to
base a retro[]active date on[.]” Appellant’s Brief at 33. Under Indiana law, “‘A
trial court has the discretionary power to make a modification for child support
relate back to the date the petition to modify is filed, or any date thereafter.’”
7
Father’s proposed child support worksheet assigned him weekly gross income of $1530 ($31.88 per hour at
48 hours per week), or $79,560 per year.
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Taylor v. Taylor, 42 N.E.3d 981, 986 (Ind. Ct. App. 2015) (quoting Haley v.
Haley, 771 N.E.2d 743, 752 (Ind. Ct. App. 2002), trans. denied. A “retroactive
modification of support is erroneous only if the modification purports to relate
back to a date earlier than that of the petition to modify.” Id.
[50] Here, the trial court found that, as of September 21, 2018, Father “is in arrears
in his child support obligation” in the amount of $6572 “due to retroactive
modification[,]” but the court’s order does not identify a specific date when the
retroactive child support obligation commenced. Appellant’s Appendix Vol. II at
22. Father maintains that the retroactive date was July 16, 2019, Appellant’s
Reply Brief at 15, whereas Mother asserts that it was June 2, 2017, Appellee’s Brief
at 44. We make no determination as to the date, but find that the trial court
was within its discretion to order a support obligation to begin as early as June
2, 2017, when Father filed his Petition to Modify. In sum, Father has not
shown any abuse of discretion in the trial court’s child support determination.
III. Attorney Fees
[51] Father challenges the trial court’s award of attorney fees in favor of Mother.
The trial court may periodically order a party to pay a reasonable amount for
the cost to the other party of maintaining or defending a proceeding, including
attorney fees. See I.C. § 31-17-7-1 (regarding custody issues); I.C. § 31-16-11-1
(regarding child support issues). A determination regarding attorney fees in
family law matters is within the sound discretion of the trial court and will be
reversed only upon a showing of a clear abuse of that discretion. Bean v. Bean,
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902 N.E.2d 256, 266 (Ind. Ct. App. 2009). In determining whether to award
attorney fees, the trial court must consider the parties’ resources, their economic
condition, their ability to engage in gainful employment, and other factors that
bear on the award’s reasonableness. Id. The court may also consider any
misconduct on the part of either of the parties. Martinez v. Deeter, 968 N.E.2d
799, 810 (Ind. Ct. App. 2012). The trial court need not cite the reasons for its
determination. Bean, 902 N.E.2d at 266.
[52] Here, the trial court ordered Father to contribute $4500 towards Mother’s
request for attorney fees in the sum of $8500 (Exhibit F). Father argues that the
trial court abused its discretion when it ordered him to pay a portion of
Mother’s attorney fees because Mother has a steady income and, further, “there
lacked testimony that [] Mother endured a hardship in paying her attorney.”
Appellant’s Brief at 28. We find no abuse of discretion, however, with the trial
court’s decision. The court heard evidence of the parties’ respective incomes,
with Father earning $31.88 per hour and Mother earning $18.36 per hour.
Father earned in excess of $90,000 in 2017. Mother had three prior-born
daughters living in her home (two were still minors), along with a grandchild.
Mother testified that she had incurred attorney fees in connection with Father’s
Petition to Modify and that she did not have the financial means to pay those
fees.
[53] The trial court determined that, “[b]ased upon the substantial disparity in the
parties’ incomes and financial conditions and the nature of the litigation, the
Father should contribute to Mother’s reasonable attorney fees.” Appellant’s
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Appendix Vol. II at 22. We conclude that the trial court did not abuse its
discretion in this determination.
IV. Cross Appeal: Appellate Fees
[54] Mother asks us to assess appellate attorney fees against Father pursuant to Ind.
Appellate Rule 66(E) for substantive and procedural bad faith. The discretion
to award fees under this rule is limited to instances when an appeal is
“permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness,
or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App.
2003). “To prevail on a substantive bad faith claim, the party must show that
the appellant’s contentions and arguments are utterly devoid of all plausibility.”
Id. Procedural bad faith “occurs when a party flagrantly disregards the form
and content requirements of the Rules of Appellate Procedure, omits and
misstates relevant facts appearing in the record and files briefs written in a
manner calculated to require the maximum expenditure of time both by the
opposing party and the reviewing court.” Id.
[55] Mother argues that Father’s statement of facts was deficient, failed to include
facts favorable to the judgment, and was argumentative, requiring Mother to
spend time and expense to provide an appropriate statement of facts. Mother
also argues, among other things, that Father “failed to support many of his
contentions with cogent argument or citations to caselaw or the record.”
Appellee’s Brief at 47. As Father observes, while App. R. 66(E) provides this
court with the discretionary authority to award fees on appeal, we must use
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“extreme caution” when exercising this power because of a potential chilling
effect upon the exercise of the right to appeal. Gilbert v. Gilbert, 7 N.E.3d 316,
324 (Ind. Ct. App. 2014). We conclude that, even if Father’s brief contained
flaws, as Mother claims, any shortcomings were not so flagrant or significant as
to constitute bad faith or vexatiousness. We thus decline to award Mother
appellate attorney fees.
[56] Judgment affirmed.
Kirsch, J. and Vaidik C.J., concur.
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