Carl Wayne Montgomery v. Patricia Ann Montgomery , 2016 Ind. App. LEXIS 333 ( 2016 )

FILED
Sep 08 2016, 9:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Karen Yvonna Renfro Michael N. Red
New Albany, Indiana Morse & Bickel, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carl Wayne Montgomery, September 8, 2016
Appellant-Petitioner, Court of Appeals Cause No.
10A01-1511-DR-1910
v. Appeal from the Clark Circuit
Court
Patricia Ann Montgomery, The Honorable Vicki Carmichael,
Appellee-Respondent. Judge
Trial Court Cause No.
10C04-0911-DR-256
Barnes, Judge.
Case Summary
[1] Carl Montgomery (“Father”) appeals the trial court’s order modifying custody
of his daughter in favor of Patricia Ann Montgomery (“Mother”). We reverse
and remand.
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Issues
[2] The issues before us are:
I. whether the trial court’s decision to modify custody is
supported by the evidence; and
II. whether the trial court properly ordered Father to pay
$7,500.00 towards Mother’s attorney fees.
Facts
[3] During the parties’ marriage they had one child, A.M., who was born in
November 2008. In November 2009, Father petitioned for divorce in Clark
County, based on the parties’ residence in Clarksville. Mother moved to
Minnesota and was granted provisional primary custody of A.M. but frequently
interfered with Father’s parenting time. In August 2011, the trial court entered
an emergency order transferring custody of A.M. to Father, but A.M. remained
in Minnesota with Mother. On June 19, 2012, the trial court entered a final
dissolution decree in which Father was granted sole legal and physical custody
of A.M., and the decree ordered Mother to deliver A.M. to Father immediately.
The decree further specified, “law enforcement officials in Minnesota or
elsewhere are hereby ordered to assist with this endeavor, as it is presumed that
[Mother] will not be cooperative.” App. p. 25. Additionally, Mother was not
granted any parenting time due to her failure to appear at the final dissolution
hearing and her prior interference with Father’s parenting time. In July 2012,
Mother appeared before the trial court and filed a request for parenting time. In
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November 2012, the parties agreed to a parenting time schedule that was
approved by the trial court; the agreement and order granted parenting time to
Mother in accordance with the Indiana Parenting Time Guidelines where
significant distance is a factor. This order did not alter the award of sole legal
custody to Father.
[4] At some point, Mother moved to Wisconsin and began living with Gary Best.
On August 23, 2013, Father filed a rule to show cause and motion to modify
parenting time. The motion alleged in part that Mother failed to pay Father
$8,296.24 in attorney fees she had previously been ordered to pay and $2,500.00
in damages awarded to Father. The motion further alleged Mother had not
been paying the full amount of child support she had been ordered to pay. The
motion further stated that Mother was living with a boyfriend, i.e. Best, who
had at least two convictions for battery in Wisconsin and/or Minnesota,
possibly involving domestic partners, and that this warranted an alteration of
Mother’s parenting time. On September 28, 2013, Father filed a petition for a
protective order against Mother, alleging she was stalking him by repeatedly
sending harassing text messages. Also, Father alleged that Mother’s “boyfriend
assaulted my daughter on her last visit & I am pursuing criminal action against
him . . . .” Id. at 38. Although the CCS indicates that a hearing was scheduled
on Father’s rule to show cause and motion to modify parenting time for
October 28, 2013, there is no indication that the trial court ever ruled on the
motions. As for the protective order request, on November 27, 2013, the trial
court entered a “Joint Temporary Restraining Order Issued Under Trial Rule
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65(E)(2)” at the parties’ mutual request, precluding each party from harassing
or battering the other or coming onto the other’s property. 1 Id. at 40.
[5] On December 17, 2013, Father filed an “Emergency Motion to Modify
Parenting Time,” in light of Mother’s approaching parenting time for the
holidays. Id. at 42. In the motion, Father alleged that A.M. was afraid of Best
and that A.M. had told Father Best previously struck A.M. and Mother while
A.M. was sitting in Mother’s lap. The motion also stated that Father took
A.M. to a psychologist and counselor, Meg Hornsby, who believed A.M. had
not fabricated the battery incident or her fears of Best. On December 27, 2013,
the parties’ parenting time coordinator, Rebecca Lockard, filed an entry with
the trial court stating Mother should have parenting time with A.M. from
December 28, 2013 through January 4, 2014. Lockard’s entry also stated that
she was aware of Father’s accusations against Best and Hornsby’s concerns, but
that “Child Protective Services investigated the incident and found no reason to
be involved or supervise any contact between the child and Gary Best.” Id. at
44. However, Father refused to deliver A.M. to Mother at that time.
[6] On January 14, 2014, the trial court held a telephonic pretrial conference with
the parties. During the hearing, Mother denied any physical abuse or threat of
abuse by Best against her or A.M. After the hearing, the trial court ordered that
1
Although the order states that it was issued under Indiana Trial Rule 65(E)(2), that rule governs temporary
restraining orders precluding harassing behavior in domestic relations cases and specifically states, “A joint
or mutual restraining order shall not be issued.”
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Mother be granted makeup visitation time beginning on January 18, 2014, for a
two-week period. The trial court also appointed a guardian ad litem (“GAL”),
Brittany Wilson, to investigate the case and submit a report to the court.
[7] On January 15, 2014, Hornsby sent a letter to the trial court. In the letter,
Hornsby recommended that Best not be present during any of Mother’s
parenting time with A.M. based on A.M.’s reports of physical abuse by Best.
Hornsby also recommended that Father and Mother work with her (Hornsby)
to develop a safety plan for A.M.
[8] On January 16, 2014, Father filed, in Wisconsin, a request for a temporary
restraining order preventing Best from having any contact with A.M. The
Wisconsin court granted the request, effective through January 27, 2014. Also
on January 16, Father filed in Indiana a “Renewed Motion for Modification of
Order for Parenting Time or in the Alternative Motion for an Amended
Parenting Order to Include a Safety Plan.” Id. at 57. In response to this latest
motion, the trial court entered an ex parte order preventing Best from being
present for any parenting time between Mother and A.M. and scheduled
another pretrial conference for January 28, 2014.
[9] During the conference on January 28, 2014, Mother again denied any physical
abuse by Best. After the hearing, the trial court entered an order directing that
Mother be allowed two weeks of parenting time beginning February 1, 2014,
and without any restrictions on Best being present. Mother did end up having
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two weeks of parenting time in February, delayed by one week for weather
concerns and not Father’s actions.
[10] Mother was granted another week of parenting time in April 2014. Before that
visitation was to occur, the GAL wrote a letter to the trial court expressing
concern that Best should not be present during any parenting time. The GAL
also recommended that Father provide Mother with medical and schooling
information for A.M., which he had not been doing. The trial court did not
enter any order restricting Best from being present during parenting time in
response to the GAL’s letter, and the parenting time took place as scheduled.
[11] Meanwhile, Mother’s attorney filed a subpoena with Hornsby, requesting
copies of A.M.’s counseling records. Hornsby resisted this subpoena and
sought a protective order, but the trial court denied it and required Hornsby to
provide the records. She never did so, however.
[12] At the conclusion of Mother’s parenting time in April 2014, she went to her
attorney’s office in Indianapolis and arranged for a video recording to be made
of A.M. without A.M.’s knowledge, interacting with Mother, Best, and
Mother’s attorney. In the video, Mother, A.M., Best, and Mother’s attorney
are eating pizza together in a conference room. A.M. sat next to Best and freely
interacted with him without apparent fear. A.M. referred to Best as “dad” or
“daddy.” Ex. 1. After a while, Mother left the room on the pretense of having
to put more money in a parking meter. A.M. initially wanted to go with
Mother, but she told A.M. to stay in the room. Then, Best said he had to go to
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the restroom. Again, A.M. wanted to go with him but he told her it was
improper for her to do so, and she stayed in the room alone with Mother’s
attorney. As Best was leaving, A.M. said, “I love you in the whole planet.” Id.
Mother’s attorney then engaged in conversation with A.M. A.M. said that it
was her “dream” to stay with Mother and that Best had told her that her dream
would come true. Id. Mother’s attorney asked A.M. whether she was afraid of
Best, and she responded, “Carl wants me to believe I am but I am not.” Id.
Mother’s attorney also asked whether Best had ever hurt her and A.M.
responded, “No. Carl just wanted me to ask him why.” Id. A.M. denied or
did not remember having ever talked to Hornsby. A.M. stated that she did not
tell the GAL that she wanted to live with Mother because she was afraid of
making the GAL mad. She also claimed to be sad that she was going back to
Father’s house that day. A.M. also denied having been told by someone else to
say the things she said to Mother’s attorney.
[13] Mother’s attorney sent a copy of this video to the GAL, who viewed it before
submitting a report to the trial court on May 15, 2014.2 Among other things,
the GAL noted having reviewed a recent criminal case against Best in
Wisconsin for third degree felony assault resulting in serious bodily injury and
that she was troubled by the behavior it described, though it was committed
2
Mother has insinuated that the GAL did not view the video before writing her report. However, the report
clearly states that the GAL reviewed “videos submitted by the parties or their counsel,” and she further
testified clearly during the custody modification hearing that she viewed the video before writing her report.
App. p. 66.
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against a co-worker.3 The GAL also noted that Father had improperly been
withholding information from Mother regarding A.M.’s education, health care,
and other issues, and that he needed to stop doing so. The GAL also had
concerns that Mother was attempting to portray Best to A.M. as her real father
while referring to Father as “Carl,” which, indeed, would seem to be reflected
by the video made in Mother’s attorney’s office. The GAL recommended in
part:
[Mother] should continue to have parenting time as ordered by
the Court. However, Gary Best should not be present for any
parenting time with [A.M.] at this time. Of course, I can never
say for sure that this incident where Gary hit [A.M.] occurred,
however, [A.M.]’s demeanor and the details she revealed lead me
to believe something happened at [Mother]’s home. [A.M.]’s
allegation combined with Mr. Best’s arrest and subsequent guilty
plea for Felony Assault, give me cause for great concern with
regard to [A.M.]’s safety with Gary present. To be clear, I am
not limiting [Mother]’s parenting time with her daughter. I
believe that [Mother] should be able to exercise her parenting
time and make arrangements such that Gary is not present for the
time being.
App. at 69.
[14] On May 13, 2014, Mother filed a petition to modify child custody in her favor.
In addition to moving to modify custody, Mother filed a motion in limine to
3
Father has not submitted any evidence that Best has any prior domestic battery convictions, as alleged in his
August 23, 2013 motion to modify parenting time.
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exclude any reliance upon Hornsby’s opinions regarding A.M. because of
Hornsby’s refusal to supply counseling records to Mother and her attorney.
Unfortunately, and after a failed attempt at mediation, the trial court did not
begin conducting a hearing on the petitions until May 18, 2015. In the
meantime, Father and his attorney at the time did not cooperate with the
parenting time coordinator, Lockard, with respect to scheduling summer 2014
parenting time for Mother with A.M., and none took place until October 2014.
In total, under the Indiana Parenting Time Guidelines, based on A.M.’s age
and the distance between the parties, Mother was entitled to six weeks of
parenting time in 2013 but only received four weeks. In 2014, Mother was
entitled to nine weeks of parenting time but only received six weeks.
[15] During the hearing on May 18, 2015, Mother presented her testimony and that
of Lockard. Mother denied any history of violence between her and Best or
between Best and A.M., and the April 2014 video of A.M. was played. Mother
did admit to Best’s felony battery conviction in Wisconsin, which apparently
was entered in May 2014, and which resulted in serious bodily injury to the
victim. Mother also testified as to Father’s uncooperativeness with providing
information on such things as A.M.’s medical care and education and with
providing his correct address to her. Lockard testified as to difficulty she had in
the past working with Father, culminating in a threat in September 2014 to quit
serving as coordinator. However, Lockard also stated that, after Father told her
to communicate directly with him and not his previous attorney, and after he
obtained a new attorney, the communication issues improved. Mother
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presented no evidence as to her current housing arrangements in Wisconsin, or
where A.M. would attend school, or extracurricular activities in which A.M.
could participate. The GAL also testified at this hearing and stated that she
could not definitively say whether her recommendation from May 2014 was
still valid, as she had not spoken to A.M. or the parties since then. 4 Regardless,
her May 2014 report was introduced into evidence. At the conclusion of the
hearing, the trial court entered a summer parenting time order for A.M. and
Mother, and Father did not attempt to interfere with that order. There is no
evidence that Mother was deprived of any parenting time to which she was
entitled in 2015 or at anytime since fall 2014; in fact, Father had voluntarily
offered a week of parenting time to Mother during spring break in 2015.
[16] The trial court continued the hearing to June 15, 2015. On that date, Father
testified, as well as A.M.’s godmother, a family friend, and Father’s sister.
Father presented evidence as to his employment and day care arrangements,
and his appropriate household and positive relationship with A.M., as well as
her finishing kindergarten and preparing to enter first grade in the fall, her
friends from school and church, and her participation in dancing and tumbling
classes. Mother did not dispute any of the evidence that A.M. has been well
cared-for by Father, aside from his interference with Mother’s parenting time in
4
The GAL referred to Best as Mother’s “paramour” during this hearing. Tr. p. 98. Before the trial court and
this court, Mother has implied that the GAL was using the term in a derogatory fashion. We cannot glean
that the GAL intended any such meaning. “Paramour” may mean “an illicit lover, especially of a married
person,” or simply “any lover.” See Dictionary.com (last visited June 21, 2016).
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2013 and 2014. Father did not present any evidence to attempt to substantiate
his earlier claim that Best had battered A.M. Also, Hornsby was not called to
testify.
[17] In addition to custody matters, Mother also presented evidence that she had
incurred nearly $18,000 in attorney fees in the past two years in fighting
Father’s attempts to limit her parenting time and in moving to modify custody.
During his testimony, Father began discussing Mother’s failure to pay him
previously-ordered attorney fees, but he was not allowed to do so because of
Mother’s objection.
[18] On October 9, 2015, the trial court entered an order granting Mother’s petition
to modify custody. The order contained some findings and conclusions, largely
following Mother’s proposed order; neither party requested written findings and
conclusions under Indiana Trial Rule 52(A). However, although Mother’s
proposed order contained provisions striking Hornsby’s opinions from the
record, the trial court’s order did not. The trial court did state in part, “In an
attempt to bolster his renewed allegations against Mr. Best, and
notwithstanding that the provisions of Rule 704(b) of the Indiana Rules of
Evidence prohibit expert testimony concerning ‘the truth or falsity of
allegations’ or ‘whether a witness has testified truthfully,’ or ‘legal conclusions,’
[Father] states that he had enlisted the assistance of psychological counselor
Meg Hornsby . . . .” Id. at 93. The trial court noted the evidence presented by
Father as to his responsibility and care for A.M. and her positive living
conditions; it did not discuss the evidence at length because Mother did not
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dispute that evidence. Ultimately, the trial court found that Father “has
fabricated the allegation that Mr. Best assaulted [A.M.] in order to disrupt
[A.M.]’s frequent, meaningful, and continuing contact with [Mother].” Id. at
103. The trial court also found that Father “has deliberately concealed [A.M.]’s
school, medical, counseling, daycare, and dental records, and even his and
[A.M.]’s own address, from [Mother], all in violation of the Court’s orders.”
Id. Based upon these findings, the trial court granted Mother legal and physical
custody of A.M., with Father having distance-related parenting time under the
Parenting Time Guidelines. The trial court also ordered Father to pay
$7,500.00 toward Mother’s attorney fees; it did not mention Mother’s
outstanding debt to Father for attorney fees and other damages. Father now
appeals. The trial court denied Father’s request to stay implementation of the
custody modification during the pendency of this appeal.
Analysis
I. Modification of Custody
[19] The trial court entered findings and conclusions in this case sua sponte. In such
a case, the specific findings control only with respect to issues they cover, and a
general judgment standard applies to issues outside the findings. In re Marriage
of Sutton, 16 N.E.3d 481, 484-85 (Ind. Ct. App. 2014). “The trial court’s
findings or judgment will be set aside only if they are clearly erroneous.” Id. at
485. A finding is clearly erroneous only if there are no facts or inferences
drawn therefrom to support it. Id.Court of Appeals of Indiana | Opinion 10A01-1511-DR-1910 | September 8, 2016 Page 12 of 26
[20] We acknowledge the well-established preference in Indiana “‘for granting
latitude and deference to our trial judges in family law matters.’” Steele-Giri v.
Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622
N.E.2d 178 (Ind. 1993)). “Appellate courts ‘are in a poor position to look at a
cold transcript of the record, and conclude that the trial judge, who saw the
witnesses, observed their demeanor, and scrutinized their testimony as it came
from the witness stand, did not properly understand the significance of the
evidence.’” Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). In order
to reverse a trial court’s ruling, it is not enough that the evidence might have
supported a different conclusion. Id. Rather, the evidence must positively
require the conclusion contended for by appellant we may reverse. Id. We may
not reweigh the evidence or reassess witness credibility, and the evidence
should be viewed in a light most favorable to the judgment. Id. (quoting Best v.
Best, 941 N.E.2d 499, 502 (Ind. 2011)). Still, although we must be highly
deferential to trial courts in cases such as this, that deference is not absolute.
See Kirk, 770 N.E.2d at 307 n.5 (“This is not to say that the circumstances of a
custody or visitation case will never warrant reversal.”).
[21] Pursuant to Indiana Code Section 31-17-2-21, a trial court may not modify a
child custody order unless a noncustodial parent shows both that modification
is in the best interest of the child, and there has been a substantial change in one
or more of the factors listed under Indiana Code Section 31-17-2-8. Those
factors are:
(1) The age and sex of the child.
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(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, and if the evidence is sufficient, the court shall
consider the factors described in section 8.5(b) of this chapter.
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A parent seeking modification of custody bears the burden of proving that the
existing custody order should be altered. Steele-Giri, 51 N.E.3d at 124 (citing
Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)). “Indeed, this ‘more stringent
standard’ is required to support a change in custody, as opposed to an initial
custody determination where there is no presumption for either parent because
‘permanence and stability are considered best for the welfare and happiness of
the child.’” Id. (quoting Lamb, 600 N.E.2d at 98).
[22] When evaluating whether a change of circumstances has occurred that is
substantial enough to warrant a modification of custody, the context of the
whole environment must be judged, “‘and the effect on the child is what renders
a change substantial or inconsequential.’” Sutton, 16 N.E.3d at 485 (quoting
Jarrell v. Jarrell, 5 N.E.3d 1186, 1193 (Ind. Ct. App. 2014), trans. denied).
Generally, cooperation or lack thereof with custody and parenting time orders
is not an appropriate basis for modifying custody. It is improper to utilize a
custody modification to punish a parent for noncompliance with a custody
order. In re Paternity of M.P.M.W., 908 N.E.2d 1205, 1208 (Ind. Ct. App. 2009).
“However, ‘[i]f one parent can demonstrate that the other has committed
misconduct so egregious that it places a child’s mental and physical welfare at
stake, the trial court may modify the custody order.’” Maddux v. Maddux, 40
N.E.3d 971, 979 (Ind. Ct. App. 2015) (quoting Hanson v. Spolnik, 685 N.E.2d
71, 78 (Ind. Ct. App. 1997), trans. denied).
[23] Here, the primary reasons identified by the trial court for modifying custody in
favor of Mother were Father’s denial of some of Mother’s parenting time in
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2013 and 2014 and, relatedly, Father’s allegation that Best had assaulted A.M.
The trial court found that allegation to be fabricated. Father does not dispute
that, during the 2013-2014 time period, Mother was entitled under the
Parenting Time Guidelines to a total of fifteen weeks of parenting time but
received only ten weeks total. Father does not concede that he fabricated the
assault allegation against Best. Because Mother denied that it occurred, we
cannot second-guess the trial court’s determination that it did not. The
question, therefore, is whether this evidence is enough to warrant a
modification of custody. We conclude it is not.
[24] We first note that the trial court made no finding as to what circumstance
substantially changed under Indiana Code Section 31-17-2-8 that warranted a
modification of custody. It is true that in some cases, a custodial parent’s
interference with a noncustodial parent’s visitation rights may be of such a
degree that it represents a substantial change in the parties’ relationship and the
parties’ relationship with their children under subsection (4) of Indiana Code
Section 31-17-2-8. See In re Paternity of J.T., 988 N.E.2d 398, 400-01 (Ind. Ct.
App. 2013); In re Marriage of Kenda & Pleskovic, 873 N.E.2d 729, 738-39 (Ind. Ct.
App. 2007), trans. denied. On the other hand, it is well-settled that in order to
support a modification of custody, such interference must be continuing and
substantial. See J.T., 988 N.E.2d at 400-01 (noting Mother “engaged in
continuing pattern of denial of parenting to time to [Father]” for over two years
and despite multiple contempt petitions against Mother); Kenda, 873 N.E.2d at
738 (noting Mother “desired to prohibit Father from exercising parenting time
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that was not supervised by her, which resulted in Father being completely cut
off from having a relationship with his son”; Mother also moved to England
with child without prior permission). And, while we accept that any
interference with a noncustodial parent’s visitation rights “is a serious matter
and in some cases may be a factor relevant to the issues of both a change in
circumstances and the child’s best interests,” not all such interference justifies a
modification of custody. Johnson v. Nation, 615 N.E.2d 141, 147 (Ind. Ct. App.
1993). In Johnson, we reversed a modification of custody that had been based
upon the custodial father’s purported interference with the mother’s parenting
time, where the mother nonetheless was able to have “regular, meaningful
visitation with her children” and there was no evidence that the father’s
interference “had a harmful physical or emotional effect on the children.” Id. at
147.
[25] In the present case, we first observe that, to the extent Mother and Father have
a highly-acrimonious relationship when it comes to A.M., that is not a new or
recent development or a changed circumstance. Indeed, the primary reason
Father was granted custody of A.M. in the original dissolution decree was
because of Mother’s complete denial of parenting time to Father for long
periods of time while the dissolution was pending. Mother disregarded an
August 2011 order for Father to have immediate custody of A.M. until June
2012, at which time the trial court anticipated that law enforcement assistance
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would be needed to turn A.M. over to Father’s care. 5 That the parties have
proven to be unable to cooperate when it comes to A.M. is a very unfortunate
circumstance, but not a new or changed one.
[26] It also is difficult to say that Father’s interference with Mother’s parenting time
in 2013 and 2014 denied her all regular and meaningful visitation with A.M.
Father’s actions deprived Mother of five out of the fifteen weeks of parenting
time to which she was entitled. That is not ideal. It was not, however, a
complete cessation of the relationship between Mother and A.M. Mother never
sought to hold Father in contempt for not granting her parenting time. And,
beginning in October 2014, regular parenting time between Mother and A.M.
had resumed. Prior to the May 2015 modification hearing, the parties had
agreed between themselves, without the assistance of the parenting time
coordinator, to Mother having a week of parenting time over spring break.
Also, although Mother argues Father was attempting to avoid scheduling
summer 2015 parenting time for Mother, the parenting time coordinator
testified as to her understanding that the issue would be resolved at the May
2015 hearing. In fact, after open-court discussion of the matter at the end of
that hearing, summer 2015 parenting time was scheduled and did occur without
5
Under Indiana Code Section 31-17-2-21(c), a court ruling on a custody modification petition may not
consider 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 the child as described by section 8 and,
if applicable, section 8.5 of this chapter.” Here, evidence of Mother’s pre-dissolution interference with
Father’s parenting time is relevant to assessing whether there was a change in circumstances regarding the
parties’ relationship.
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any evidence of interference by Father. The parenting time coordinator also
indicated that prior difficulties in scheduling parenting time with Father had
greatly lessened since Father’s retention of a new attorney and Father’s request
that the coordinator communicate directly with him and not with counsel.
[27] We additionally note that there is a lack of evidence that Father’s interference
with Mother’s parenting time had any detrimental effect upon A.M.’s mental or
physical health. There is no evidence that A.M.’s relationship with Mother was
substantially affected, beyond whatever normal stressors may occur whenever
divorced parents fight over child custody. Cf. Cunningham v. Cunningham, 787
N.E.2d 930, 936 (Ind. Ct. App. 2003) (affirming denial of modification petition
and while acknowledging children felt stress caused by divorce and move and
living with new stepfamily, there was no evidence “that the children have
suffered any additional stress than any other child might feel in those
circumstances”). Additionally, to the extent Mother argues Father attempted to
instill fear of Best in A.M., by Mother’s own account Father ultimately failed in
that regard. Mother claims that A.M. had no fear of Best and that this was
reflected during the recorded interview at Mother’s attorney’s office.
Furthermore, to the extent Father claimed in late 2013 and early 2014 that Best
assaulted A.M., there is no evidence that he has continued to repeat such claims
or did so in front of A.M. at any time for over a year prior to the modification
hearing. In sum, we cannot say there is evidence of a substantial change in
circumstances under Indiana Code Section 31-17-2-8 such as would support a
modification of custody.
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[28] Perhaps more crucially, however, we conclude there is scant evidence that
modification of custody was in A.M.’s best interests. “Courts certainly should
not reward parents who refuse to cooperate in the court’s efforts to reunify a
child with another parent.” Kirk, 770 N.E.2d at 308. But, when deciding
whether to modify custody, courts must bear in mind:
“[C]hildren will normally prosper and mature . . . under a
standard of consistency better than they will otherwise, even
though at any given point in time the noncustodial parent may
appear capable of offering ‘better’ surroundings, either emotional
or physical. In the larger sense, the stability in surroundings,
schooling, relationships, authority figures, daily routine,
economic circumstances, etc. constitute a substantial determinant
in assessing the statutorily enumerated factors relevant to a
determination of the best interests of the child.”
Id. (quoting Kuiper v. Anderson, 634 N.E.2d 556, 558 (Ind. Ct. App. 1994)).
[29] Here, Father presented uncontradicted evidence of his housing and A.M.’s
current positive living situation, her schooling, her friendships, her church
attendance, her extra-curricular activities, and her medical and dental care.
There was no evidence that A.M. has been anything but well-cared for and
well-adjusted while in Father’s custody, as confirmed by several witnesses.
Mother does not dispute that. Very importantly the GAL recommended
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A.M.’s continued custody with Father.6 However, the trial court seemed to
give little consideration to this evidence in its findings and order.
[30] By contrast, Mother presented no evidence whatsoever as to what kind of
situation A.M. would be moving into, hundreds of miles away from her current
home, school, friends, church, family, and extracurricular activities, and greatly
disrupting A.M.’s daily routine. There was no evidence of nor findings
regarding Mother’s current housing situation. There was no evidence of nor
findings regarding where A.M. would go to school or the type of neighborhood
in which she would live or what kind of extra-curricular activities might be
available to her. And, even if we accept that Best never assaulted A.M. and
that she was not afraid of him, the fact remains that he was convicted of felony
battery resulting in serious bodily injury—not in the distant past, but during the
course of these proceedings. This should have at least been cause for concern in
assessing whether it would be in A.M.’s best interests to live with Mother,
which also meant living with Best. The trial court did not mention Best’s
battery conviction in its findings or order.
[31] In light of the uncontradicted evidence of A.M.’s positive living situation with
Father, the complete dearth of evidence of what A.M.’s living situation with
6
Mother notes that the GAL’s report was filed over a year before the modification hearing, and the GAL
could not testify with certainty that her recommendation would be the same because she had not interacted
with the parties and A.M. since that time. However, given that Mother was the one seeking to modify
custody, it should have been her burden to demonstrate that something happened in the year since the report
had been filed that could or would have changed the GAL’s recommendation.
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Mother would be like and which move would involve completely uprooting her
from her current community, and the lack of evidence that Father’s interference
with Mother’s visitation has substantially or continually impacted Mother’s
relationship with A.M. or affected A.M.’s mental or physical health, there is
insufficient evidence that modifying custody is in A.M.’s best interests. We are
left to speculate in what sort of situation the child will find herself.
[32] We must also address Mother’s claim that modification of custody was
somehow supported by Father’s failure to fully provide his current address and
records related to A.M., such as dental, doctor, counseling, 7 and educational
records. Obviously, in the spirit of cooperation and sound parenting after
divorce, Father should have been providing such information, especially after
being ordered to do so. However, we do note that Father had sole legal custody
of A.M. As such, Father possessed the authority to determine A.M.’s
upbringing, including for her education, health care, and religious training. See
I.C. § 31-17-2-17; Finnerty v. Clutter, 917 N.E.2d 154, 156 (Ind. Ct. App. 2009),
trans. denied. Thus, Father’s failure to provide these type of records, while
disturbing, did not arise in a situation in which he and Mother shared joint legal
custody.
7
The record reveals that it was Hornsby herself, not Father, who resisted Mother’s requests for A.M.’s
counseling records. Hornsby asserted that the records were confidential and that she was representing
A.M.’s interests only in refusing to release them.
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[33] Father undoubtedly was not exemplary in his conduct, but being difficult does
not and legally cannot support a change in custody. This case presents a rare
example in which we conclude it is necessary to reverse a trial court’s decision
regarding child custody. However, we cannot allow the custody modification
to stand where there is a lack of evidence to support that ruling.
II. Attorney Fees
[34] Father also challenges the trial court’s order requiring him to pay $7,500.00
towards Mother’s attorney fees. We review a decision to award attorney fees
and the amount of any award for an abuse of discretion. Allen v. Proksch, 832
N.E.2d 1080, 1102 (Ind. Ct. App. 2005). The trial court relied on two statutes
in awarding fees. The first statute is the General Recovery Statute, Indiana
Code Section 34-52-1-1(b), which applies in all civil cases and permits an award
of attorney fees if either party: “(1) brought the action or defense on a claim or
defense that is frivolous, unreasonable, or groundless; (2) continued to litigate
the action or defense after the party’s claim or defense clearly became frivolous,
unreasonable, or groundless; or (3) litigated the action in bad faith.” This
statute, however, expressly predicates a possible award of attorney fees only to
a “prevailing party.” K.S. v. B.W., 954 N.E.2d 1050, 1053 (Ind. Ct. App. 2011),
trans. denied. Ultimately, given our holding that the trial court should not have
granted Mother’s petition to modify custody, she cannot be deemed a
“prevailing party” under the General Recovery Statute.
[35] The second statute is Indiana Code Section 31-17-7-1, which permits a court to
periodically order one parent to pay reasonable attorney fees to the other parent
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related to maintaining or defending custody and parenting time proceedings. In
order to award fees under this statute, a trial court must consider the parties’
resources, their economic condition, their ability to engage in gainful
employment and earn adequate income, and any other factors bearing on the
reasonableness of the award. Allen, 832 N.E.2d at 1102. “Misconduct that
directly results in additional litigation expenses may properly be taken into
account in the trial court’s decision to award attorney fees.” Id. If a trial court
does not receive evidence regarding the parties’ respective resources, economic
condition, income and ability to work, and other factors related to the
reasonableness of an award, it is an abuse of discretion to award fees under
Section 31-17-7-1. Id.[36] Here, there was little evidence presented regarding the parties’ respective
economic conditions. The only evidence presented was that Mother earns $15
per hour at her job, while Father earns $17 per hour. Mother did not testify as
to the number of hours she worked. Mother has not presented evidence of a
significant disparity in income that would justify shifting the payment of
attorney fees from Father to Mother. Additionally, there was no evidence of
savings or other assets the parties may have available to them, or if any exist at
all. We also note that Father’s 2013 contempt petition asserting Mother had
failed to pay him attorney fees, a judgment, and child support owed under the
original dissolution decree was never ruled upon nor mentioned by the trial
court. This would be a relevant consideration in assessing the parties’
respective situations. Given the lack of any evidence of a significant economic
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disparity between the parties or that the trial court considered the parties’
respective economic resources, we conclude it was an abuse of discretion to
require Father to pay $7,500.00 towards Mother’s attorney fees. See id.(reversing award of attorney fees under Section 31-17-7-1 where there was no
indication trial court considered parties’ resources, economic condition, and
other factors bearing on the reasonableness of the award). Furthermore, as for
Father’s alleged misconduct related to parenting time interference, the evidence
presented by Mother does not differentiate between fees related to such alleged
misconduct and fees generally related to her motion to modify custody. We
decline to affirm the award of fees on this basis. See J.M. v. N.M., 844 N.E.2d
590, 604 (Ind. Ct. App. 2006) (affirming award of attorney fees related to
misconduct where the award was “limited to those fees incurred by Mother
based on specific unreasonable actions by Father that caused Mother
‘additional litigation expenses’”), trans. denied.
Conclusion
[37] The trial court clearly erred in granting Mother’s petition to modify custody, as
there was insufficient evidence of a substantial change in circumstances
justifying modification or that modification was in A.M.’s best interests. We
reverse the modification of custody and remand for primary physical custody
and sole legal custody of A.M. to be returned to Father, with parenting time for
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Mother in accordance with the Indiana Parenting Time Guidelines.8
Additionally, the trial court abused its discretion in awarding attorney fees to
Mother, and we reverse that award as well.
[38] Reversed and remanded.
Vaidik, C.J., and Mathias, J., concur.
8
We remind the parties and trial court that no action should be taken in reliance on this opinion until it is
certified as final under Indiana Appellate Rule 65(E).
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