Tasima M. Collyear-Bell v. Dennis T. Bell (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 11 2018, 7:42 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Adam Lenkowsky Danielle L. Gregory
Roberts & Bishop Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tasima M. Collyear-Bell, May 11, 2018
Appellant-Respondent, Court of Appeals Case No.
49A05-1709-DR-2076
v. Appeal from the Marion Superior
Court
Dennis T. Bell, The Honorable Heather A. Welch,
Appellee-Petitioner. Judge
The Honorable Jeffrey L. Marchal,
Magistrate
Trial Court Cause No.
49D01-1107-DR-25874
Mathias, Judge.
[1] Tasima M. Collyear-Bell (“Mother”) appeals the order of the Marion Superior
Court awarding primary physical custody of her minor daughter, J.C.B., to the
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child’s father and Collyear’s ex-husband, Dennis T. Bell (“Father”). On appeal,
Mother presents four issues, which we consolidate and restate as the following
two: (1) whether the trial court abused its discretion when it granted physical
custody of J.C.B. to Father, and (2) whether the trial court abused its discretion
by denying Mother’s motion to reopen the evidence and submit documentary
evidence of her gross weekly income that would substantially reduce her child
support obligation. We affirm the trial court’s modification of primary physical
custody in favor of Father, but reverse the trial court’s child support calculation,
and remand with instructions.
Facts and Procedural History
[2] Mother and Father married on January 4, 2007, and their only child together,
J.C.B., was born in August 2008. The parties separated in April 2009.
Thereafter, on September 6, 2011, Father filed a petition for dissolution of the
marriage. The trial court dissolved the parties’ marriage on December 20, 2012
and awarded primary physical custody of J.C.B. to Mother and awarded both
parties joint legal custody of the child. Father was ordered to pay $174.52 per
week in child support.
[3] Father exercised regular parenting time with J.C.B., and the majority of
J.C.B.’s family lived in or near Indiana. On May 31, 2015, Mother moved to
Texas with her boyfriend, who had family in Texas. Precisely how much
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Mother told Father about her plan to move to Texas is disputed by the parties. 1
Regardless, Mother did not file the statutorily required notice of her intent to
move. See Ind. Code §§ 31-17-2.2-1 to -6.
[4] After Mother moved, J.C.B. stayed with Father for the summer, then went to
stay in Texas with Mother in September 2015. J.C.B. did well in Texas, where
she was enrolled in a class for children with special educational needs. J.C.B.
made friends at school and received good grades. But at some point, in the late
fall of 2016, J.C.B. got in trouble at school for making a rude comment to
another student. On December 12, 2016, Mother decided to punish J.C.B. by
whipping her with a belt. Mother made J.C.B. strip down to her t-shirt,
underwear, and socks and lie across the bed. Mother then hit the child several
times with the belt. J.C.B. moved around during the whipping, causing Mother
to strike her in several places. At one point, J.C.B. got up and ran around the
room. Mother then made J.C.B. lay back on the bed to continue the whipping.
Mother stopped the whipping when she noticed that J.C.B. had a bruise on her
arm.
1
Mother testified that she told Father about her plans to move prior to moving. Father gave conflicting
testimony regarding whether Mother told him of her plans prior to the move. Father initially admitted that
Mother told him in October 2014 that she would be moving to Texas. Tr. p. 64. He also testified that Mother
told him she planned to move to Texas, but that he had not paid attention to what she had said. Id. at 65.
When questioned by his counsel, Father again admitted that Mother told him about her plans to move in
October of 2014, but then later stated that she did not tell him that she was moving until June 2015, after the
move took place. Id. at 69–71.
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[5] The following day, J.C.B.’s teacher referred her to the school nurse after seeing
that J.C.B. had a bruise on her eye. The school then reported J.C.B.’s injuries to
the Texas Department of Family Protective Services (“DFPS”). The DFPS’s
“Allegation Detail” reported as follows:
Worker did interview [J.C.B.] She did make an outcry of getting
spanked with a belt Monday for having a Yellow on her report.
Worker observed during the interview a mark with a bruise []
under her right eye, marks and bruises on her chest, bruises on
both arms from her shoulder to her wrist, bruises on both thighs,
and [a] bruise on the left side of her back, she also had bruises on
her stomach.
Ex. Vol., GAL Ex. 1, Attachment p. 4.
[6] The DFPS report also stated that the bruise under J.C.B.’s eye was shaped like
a belt buckle. J.C.B. reported to the DFPS investigator that Mother was angry
with her when she was whipped with the belt and that Mother had also hit her
with a switch. J.C.B. also stated that Mother knew about the bruises and marks
on her and told her, “that is what you get for putting you[r] hands and legs in
the way.” Id. at 22. J.C.B. also told the DFPS investigator that, if she got in
trouble at school, Mother would whip her in the morning and evening. She also
would get whipped if she misbehaved at home.
[7] As a result of its investigation into the physical abuse, DFPS removed J.C.B.
from Mother’s home and contacted Father to request that he pick up the child,
take her back to Indiana, and file for custody. Mother objected and preferred
her pastor to take J.C.B. DFPS closed its investigation with a determination
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that, by a preponderance of the evidence, Mother physically abused J.C.B. The
DFPS report indicated that criminal charges were being prepared against
Mother, but no criminal charges were ever filed.
[8] On March 13, 2017, Father filed a petition seeking custody of J.C.B. and to
terminate his child support obligation and instead receive child support from
Mother. On May 16, 2017, the parties appeared by counsel and agreed Father
would have temporary physical and legal custody of J.C.B. and Father’s child
support obligation would terminate. The trial court issued an order granting
Father temporary physical custody of J.C.B. on May 23, 2017. The following
day, Father requested that the trial court appoint a guardian ad litem (“GAL”),
which the trial court granted on May 26, 2017. The GAL submitted his report
on July 21, 2017, and a supplemental report on July 25, 2017.
[9] The trial court held a hearing on Father’s petition to modify custody on August
1, 2017. Following the hearing, Mother moved to amend her testimony
concerning her income, alleging that she had misstated her weekly income
during her testimony at the hearing. Father opposed the motion, and the trial
court denied it on August 9, 2017.
[10] On August 21, 2017, the trial court entered findings of fact and conclusions of
law granting Father’s petition to modify custody. The order provides in relevant
part:
10. J.C.B. has a learning disability as to math. Mother enrolled
the child in a special needs class at Thurgood Marshall
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Elementary and arranged for private tutoring. J.C.B. was
receiving A’s and B’s at her school in Texas.
11. Mother resides in an apartment with her boyfriend in Dallas,
Texas. J.C.B. has her own bedroom in this apartment.
12. In December 2016, the Texas Department of Family and
Protective Services (“DFPS”) initiated an abuse investigation
against Mother.
***
14. DFPS found there was reason to believe that physical abuse
of J.C.B. by Mother had occurred.
15. The DFPS report noted that Mother had inflicted excessive
corporal punishment on J.C.B., resulting in a bruise in the shape
of a belt on her right cheek, a bruise under her right eye, marks
and bruises on her chest, and bruises on both arms from shoulder
to wrist, on both thighs, and on the left side of her back and on
her stomach.
16. When interviewed by DFPS, J.C.B. reported that the bruises
were the result of a “whooping” administered by her Mother as
punishment for saying something inappropriate at school.
17. J.C.B. provided a detailed account of the incident in a
forensic interview conducted on December 20, 2016. Her
account will not be recited verbatim here but is incorporated by
reference.
18. Mother initially denied physically abusing J.C.B. Her
explanation of the visible injuries on J.C.B. was found to be
inconsistent with the injuries sustained.
19. As found in the GAL report, Mother, Mother’s boyfriend,
J.C.B., and J.C.B.’s half-sister all have advised that a particular
mark on J.C.B.’s face was caused by a girl at daycare. This mark
notwithstanding, the evidence shows that Mother was
responsible for the remaining marks and bruises.
20. Mother was more forthcoming at the hearing on August 1,
2017. Mother confirmed that she administered corporal
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punishment to J.C.B. on the day in question as punishment for
inappropriate language the child used at school.
21. As testified to by Mother, she had J.C.B. take off her pants
and lay on her bed. Mother then proceeded to strike the child
with a belt. J.C.B. then attempted to run away.
22. Mother began striking the child again with the belt. Mother
explained the bruising on J.C.B.’s arm was the result of the child
turning away from the strikes.
23. Mother then treated the affected areas with ice packs and
lotion.
24. Mother’s testimony at the hearing was largely consistent with
the description of events provided by [J.C.B.] on December 20,
2016.
25. Mother asserts that the child has a medical condition which
causes her to bruise easily.
26. Although this may explain the bruises observed, in the
Court’s view, the child’s medical condition does not excuse the
excessive punishment administered by Mother.
27. J.C.B. advised the forensic interviewer that when she gets in
trouble, she usually gets a “whooping” as punishment.
28. As reported by the GAL, Mother and her boyfriend use
corporal punishment with J.C.B. when other forms of discipline
have been unsuccessful. In such instances, Mother uses a belt for
spankings with 5–6 “licks” for a single spanking.
29. Mother testified that she has used corporal punishment in the
past with J.C.B. and with her oldest daughter. Mother denies that
any discipline administered to her children has been excessive.
30. Father could not recall observing any prior instance of abuse
towards J.C.B. by Mother during the marriage.
31. Father does not employ corporal punishment with J.C.B.
32. Based upon all of the evidence presented, the Court finds
that this incident of corporal punishment, in which a belt was
used by Mother to strike the child, was not isolated. While it is
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certainly not Mother’s standard method of parental discipline,
this is not the first time she has struck J.C.B. with a belt.
33. While there is not sufficient evidence to support a finding
that prior punishments for J.C.B. have been excessive as to the
resulting injuries, the Court does find that the punishment
carried out here was excessive and exceeds any reasonable
parental discipline of a child.
***
40. DFPS recommended to Mother that she take parenting
classes. To date, she has not followed this recommendation.
41. Father returned J.C.B. to Indianapolis in January of 2017.
42. Father enrolled the child in Fox Hill Elementary. J.C.B.’s
grades dropped to C’s and D’s following her transfer. Father
enrolled the child in summer school so that she could advance
with her class.
43. Father resides in a one-bedroom apartment. J.C.B. sleeps in
Father’s room while he sleeps in the family room. Father intends
to get a larger apartment if he is granted physical custody.
***
53. [J.C.B.’s adult half-sister] advised the GAL that J.C.B.
vacillates on whether she prefers to reside in Texas or Indiana.
This contradicts J.C.B.’s statement to the GAL that she wanted
to remain with Father in Indiana and not return to Texas.
54. Having considered the conflicting evidence, the Court
finds that J.C.B. prefers to reside with Father.
55. As found in the GAL report, J.C.B. has been involved with
her church choirs in both Texas and Indiana. J.C.B. does not
favor one parent over another and enjoys spending time with
both parents.
56. The Court agrees with the GAL’s assessment that J.C.B.’s
safety and stability in her home life are paramount in
determining her custody.
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57. The Court finds that J.C.B. has adjusted well to her home
with Father and to her new school since her return to
Indianapolis.
58. The Court also agrees with the GAL that both parents are
capable for providing an adequate home environment for J.C.B.
59. Father did not express any concerns with Mother exercising
non-supervised parenting time with J.C.B. It is the
recommendation of the GAL that Mother’s parenting time be
unsupervised.
***
64. As shown above, among the factors to consider in a
request to modify custody are the child’s adjustment to his
home, school and community. The evidence presented
demonstrates that J.C.B has adjusted well to her home with
Father, her new school, and her return to the community since
she was placed with Father by DFPS. This substantial change
in factors weighs in favor of a permanent modification of
custody to Father.
65. Another factor to consider is the child’s desire to remain in
Indiana. While the Court would have given this factor greater
weight if J.C.B. had been at least fourteen (14) years old, this
change in factors is, nonetheless, substantial and weighs in
favor of a permanent modification of custody to Father.
66. By agreeing to assume care of his daughter per the DFPS
safety plan and by pursing modification of custody as he agreed
to, Father has demonstrated a permanent change in his desire for
physical custody of J.C.B.
67. Mother argues that Father has not demonstrated a pattern of
domestic or family violence as contemplated by I.C. 31-17-2-8,
but has merely shown a single act of abuse. The Court is mindful
that a non-custodial parent must show more than isolated acts of
misconduct by the custodial parent in order to warrant a
modification of child custody.
68. The Court also agrees with Mother that Indiana law
recognizes a parental privilege to use moderate or reasonable
physical force in the discipline of a child. However, the evidence
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presented leads to the conclusion that Mother has used a belt in
the past to discipline J.C.B., albeit as a last resort. The
evidence also leads to the conclusion that in the latest instance,
the discipline resulted in multiple bruising to the child’s body
and that this discipline was unreasonable as a means of
parental discipline. The Court concludes that a pattern of
domestic or family violence has been established.
69. Having considered the evidence, the Court concludes that
while Mother implements corporal punishment with J.C.B. as
she is entitled to do as a parent, she has resorted to the use of a
belt for spankings. Further, the evidence demonstrates that the
punishment carried out here was excessive and exceeds any
reasonable parental discipline of a child.
70. To return J.C.B. to Mother’s custody would place the
child’s wellbeing at substantial risk. It would not be in the best
interest of the child to return J.C.B. to the custody of Mother.
71. There is a substantial change in one (1) or more of the factors
listed in Indiana Code § 31-17-2-8 such that the current order for
physical custody of the child is unreasonable.
72. It is in the in the best interest of J.C.B. that Father be
granted sole physical custody with parties continuing to share
joint legal custody of the minor child.
73. Father has requested that his support order be terminated
and that Mother be required to pay child support.
74. The current child support order was temporarily vacated on
May 23, 2017. There is no evidence of an arrearage in this case.
75. Father earns a weekly gross income of Five Hundred
Twenty-Six Dollars ($526.00) which is based upon an hourly
wage of Thirteen Dollars and Fifteen Cents ($13.15) over a forty
(40) hour work week.
76. Mother earns a weekly gross income of One Thousand
Dollars ($1,000.00) per week.
77. Both parties have health insurance available to them and
J.C.B. Father would incur Eight Dollars ($8.00) per week on the
child’s portion of his weekly insurance premium. Mother would
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incur a weekly premium for J.C.B. around Thirty-Five Dollars
($35.00) per week.
78. Father shall maintain health insurance coverage on J.C.B.
and receive credit for the weekly premium.
79. Father incurs Fifty Dollars ($50.00) per week in work-related
child care expenses.
80. Mother shall exercise liberal parenting time as the parties
shall agree but in no event shall Mother be entitled to less
parenting time than that provided in the Indiana Parenting Time
Guidelines When Distance is a Major Factor.
81. Mother’s parenting time shall not be supervised.
82. Mother shall have additional parenting time, including
overnight parenting time, whenever she travels to Marion
County, Indiana or its contiguous counties. The parties shall
provide notice to each other, as far in advance as possible, of
such parenting opportunities.
83. Mother shall be entitled to reasonable weekly opportunities
for additional contact with the minor child through telephone
calls, texting, and video conferencing such as through Facetime
or Skype.
84. The existing child support order shall be modified. Mother
shall pay child support in the amount of One Hundred Sixty-
Two Dollars ($162.00) per week consistent with the attached
Child Support Obligation Worksheet, which is incorporated
herein by reference.
***
88. The Court recommends, but does not order, that Mother
undertake parenting classes with emphasis on proper child
discipline.
Appellant’s App. pp. 13–23 (citations omitted) (emphasis added). Mother now
appeals.
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Standard of Review
[11] The decision to modify custody is one that rests in the sound discretion of the
trial court. In re Marriage of Sutton, 16 N.E.3d 481, 484 (Ind. Ct. App. 2014). On
appeal, we review the trial court’s decision to modify custody for an abuse of
this discretion, giving wide latitude and deference to the trial court. Kirk v. Kirk,
770 N.E.2d 304, 307 (Ind. 2002).
[12] Here, the trial court entered findings of fact and conclusions sua sponte. In such
cases, the trial court’s specific findings control only with respect to the issues
they cover, and a general judgment standard applies to issues outside the court’s
findings. Sutton, 16 N.E.3d at 484–85. The trial court’s findings or judgment
will be set aside only if they are clearly erroneous. Id. A finding of fact is clearly
erroneous when there are no facts or inferences drawn therefrom to support it.
Id. On appeal, we “are not to reweigh the evidence nor reassess witness
credibility, and the evidence should be viewed most favorably to the judgment.”
Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).
I. Custody Modification
[13] Mother first argues that the trial court abused its discretion by granting Father’s
petition to modify custody. Pursuant to Indiana Code section 31-17-2-21, a trial
court may not modify an existing custody order unless: (1) the modification is
in the best interests of the child, and (2) there has been a substantial change in
one or more of the statutory factors set forth in Indiana Code section 31-17-2-8.
The factors a trial court is to consider under Section 31-17-2-8 are:
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(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the
child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s
best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either
parent.
(8) Evidence that the child has been cared for by a de facto
custodian. . . .
[14] All that is required to support custody modification under Section 31-17-2-21 is
a finding by the trial court that (1) 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. In re Paternity of P.R., 940
N.E.2d 346, 351 (Ind. Ct. App. 2010).
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A. Pattern of Domestic or Family Violence
[15] Mother first argues that the trial court erred in determining that there was
evidence of a pattern of domestic or family violence. Mother notes that we have
held before that a non-custodial parent “must show something more than
isolated acts of misconduct by the custodial parent to warrant a modification of
child custody.” Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App. 1996).
Here, however, there was evidence of more than an isolated act of misconduct.
There was evidence that Mother repeatedly beat J.C.B. with a belt or a switch;
the incident that led to the DFPS investigation was only the most recent of
Mother’s beatings. Indeed, Mother herself admitted that she had previously
whipped J.C.B. with a belt three times while they lived in Texas.
[16] We find Mother’s citation to Willis v. State, 888 N.E.2d 177 (Ind. 2008), to be
unavailing. In that case, a mother was convicted of Class D felony battery for
whipping her eleven-year-old son with a belt or extension cord. Id. at 179. Our
supreme court noted the existence of a parental privilege “to apply such
reasonable force or to impose such reasonable confinement upon his child as he
reasonably believes to be necessary for its proper control, training, or
education” as a complete defense to a charge of battery. Id. at 182. The Willis
court held that this parental privilege applied in the case before it, noting that
the boy’s injuries caused by the mother’s whipping “were neither serious nor
permanent,” and that the mother in that case could not be guilty of battery. Id.
at 184.
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[17] Here, however, we are not concerned with criminal liability or even tort
liability. We are concerned with whether there was a pattern of family or
domestic violence sufficient to justify a change in custody. Although the
parental privilege from Willis might be a defense for Mother if she were to be
criminally charged in Indiana, we do not think this privilege prevented the trial
court from considering Mother’s violence toward her child when determining
whether to modify custody in favor of Father.
[18] Mother also claims that the trial court did not find a pattern of family or
domestic violence because the trial court found that there was evidence that
only the most recent whipping was excessive and resulted in injuries. However,
the trial court also found that Mother had repeatedly whipped J.C.B. while in
Texas and that the most recent whipping resulted in injuries to the child. This is
sufficient to establish that there had been a pattern of violence toward J.C.B.
Accordingly, the trial court did not err in concluding that there had been a
substantial change in one of the statutory factors, evidence of a pattern of family
or domestic violence, sufficient to justify a change of custody to Father.
B. Child’s Adjustment to Home, School, and Community
[19] Mother next argues that the trial court erred by finding that J.C.B.’s adjustment
to her new home with Father, her new school, and her return to the
Indianapolis community since her placement with Father by the Texas DFPS
was a substantial change in factors that weighed in favor of modification of
custody to Father. Mother argues that “a Trial Court may not consider a
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change in permanent physical custody upon evidence of changes in a child’s
condition occurring during the period in which the physical custody of that
child has been transferred to the noncustodial parent pursuant to an emergency
petition.” Appellant’s Br. at 11–12 (citing Joe v. Lebow, 670 N.E.2d 9, 22 (Ind.
Ct. App. 1996)).
[20] In Joe, this court held that evidence of a child’s improving condition, while
under the temporary emergency custody of the noncustodial parent, was
admissible. 670 N.E.2d at 23. A child’s improving condition may properly be
considered in determining the child’s best interests. Id. However, evidence of a
child’s improving condition cannot fall within the trial court’s consideration of
a substantial change in one of the statutory factors. Id. In other words, without
independent evidence of a substantial change in one of the statutory factors,
evidence of a child’s improving condition with the noncustodial parent will not
by itself support a custody modification. Wiggins v. Davis, 737 N.E.2d 437, 442
(Ind. Ct. App. 2000) (citing Joe, 670 N.E.2d at 23).
[21] Accordingly, the trial court should not have considered J.C.B.’s adjustment to
her new home and community as evidence of a substantial change in the
statutory factors. But the trial court could properly consider J.C.B.’s adjustment
in determining the child’s best interests. We find no reversible error, however,
because here, the trial court did not base its custody decision solely based on
this factor. Instead, as noted above, the trial court also based its determination
on the evidence of violence toward J.C.B. by Mother.
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C. The Wishes of the Child
[22] Mother also argues that the trial court erred by taking into consideration
J.C.B.’s desire to remain with Father. Mother again cites to our decision in Joe
for the proposition that “a change in the child’s wishes, standing alone, cannot
support a change in custody.” 670 N.E.2d at 25. Here, however, the trial court
did not base its decision to modify custody on the child’s wishes alone.
Moreover, the statute specifically authorizes the trial court to consider “all
relevant factors” including “[t]he wishes of the child, with more consideration
given to the child’s wishes if the child is at least fourteen (14) years of age.” I.C.
§ 32-27-2-8(3). That the child’s wishes are to be given more consideration if the
child is at least fourteen years old does not mean that the wishes of a child who
is not yet fourteen cannot be considered.
[23] In summary, the trial court did not abuse its considerable discretion in
modifying physical custody of J.C.B. in favor of Father based on evidence of
Mother’s violence directed toward the child.
II. Motion to Amend Testimony
[24] Lastly, Mother argues that the trial court abused its discretion by denying her
post-hearing motion to amend her testimony concerning her weekly income.
Generally speaking, evidence must be offered during the course of a trial, and it
is within the discretion of the trial court to permit a party to present additional
evidence or testimony once the party has rested, once both parties have rested,
or after the close of all of the evidence. In re D.Q., 745 N.E.2d 904, 908 (Ind. Ct.
App. 2001).
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[25] Mother testified at the evidentiary hearing that her weekly gross income was
$1,000. After the hearing, Mother realized that she had misspoken, and that her
income was, in fact, closer to $1,000 per paycheck, which she receives every two
weeks. Mother moved to amend her testimony in this regard, providing the trial
court with copies of her paychecks to corroborate her claim regarding her
factually erroneous testimony. See Appellant’s App. pp. 48–54. She also
provided the trial court with a calculation showing that her actual gross weekly
income was $705. See id. at 46–47.
[26] Father does not deny the veracity of Mother’s claims regarding her actual
income. He argues, however, that Mother and her counsel repeatedly misstated
her income during the hearing and that the trial court was therefore within its
discretion to deny Mother’s motion. He also contends that Mother is not
without remedy, as she may still petition the trial court to modify her child
support obligation under Indiana Code section 31-16-8-1. This statute provides:
Except as provided in section 2 [2] of this chapter, modification
may be made only:
(1) upon a showing of changed circumstances so substantial and
continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child
support that differs by more than twenty percent (20%) from
2
Section 2 of Indiana Code chapter 31-16-8, which is inapplicable here, pertains to health and hospitalization
costs.
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the amount that would be ordered by applying the child
support guidelines; and
(B) the order requested to be modified or revoked was issued
at least twelve (12) months before the petition requesting
modification was filed.
I.C. § 31-16-8-1.
[27] Under this statute, Mother would have to wait until August 21, 2018 (twelve
months after the current support order was entered) before she could file for
modification. In the meantime, her child support obligation would be
substantially higher than if calculated using her actual, documented weekly
salary.3
[28] Under these particular facts and circumstances, we conclude that the trial court
abused its discretion by denying Mother’s motion to reopen the evidence and
submit documentary evidence of her weekly income. We therefore reverse the
trial court’s order regarding child support and remand with instructions that the
trial court determine Mother’s child support obligation based on her actual
gross weekly income.
3
Using the Indiana Supreme Court Child Support Calculator, and the figures used in the trial court’s child
support worksheet, corrected to show Mother’s weekly income of $705, results in a weekly child support
obligation for Mother of $89, almost half of the $162.00 obligation that Mother was ordered to pay based on
her mistaken testimony. See Indiana Supreme Court Child Support Calculator, http://mycourts.in.gov/csc/
Practitioners/.
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Conclusion
[29] The trial court did not abuse its discretion by granting Father’s motion to
modify physical custody. There was evidence that Mother engaged in a pattern
of violence toward J.C.B., with the most recent incident resulting in not-
insubstantial injuries to the child and the involvement of Texas child protection
authorities. The trial court’s consideration of the child’s adjustment to her new
home with Father was not reversible error, and the trial court did not err by
considering the wishes of J.C.B. to live with Father. We conclude, however,
that the trial court should have granted Mother’s motion to reopen the evidence
to submit documentary evidence of her actual gross weekly income because
Mother’s child support obligation would be substantially less if it is based on
her actual weekly gross income. Accordingly, the judgment of the trial court is
affirmed with regard to child custody, reversed with regard to child support,
and remanded for proceedings consistent with this opinion.
[30] Affirmed in part, reversed in part, and remanded.
Najam, J., and Barnes, J., concur.
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