Dustin Woodard v. Ashley Woodard (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Jun 26 2019, 9:19 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the purpose CLERK
Indiana Supreme Court
of establishing the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Preeti Gupta
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin Woodard, June 26, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-DR-3119
v. Appeal from the Morgan Circuit
Court
Ashley Woodard, The Honorable Matthew Hanson,
Judge
Appellee-Petitioner.
Trial Court Cause No.
55C01-1003-DR-330
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-3119 | June 26, 2019 Page 1 of 13
STATEMENT OF THE CASE
Appellant-Respondent, Dustin Woodard (Father), appeals the trial court’s
denial of his motion to modify custody and for the appointment of a Guardian
ad Litem (GAL).
We affirm.
ISSUES
Father presents two issues on appeal, which we restate as the following:
(1) Whether the trial court abused its discretion by denying Father’s motion
to modify custody; and
(2) Whether the trial court abused its discretion by denying Father’s request
for the appointment of a GAL.
FACTS AND PROCEDURAL HISTORY
On November 23, 2010, Father and Appellee-Petitioner, Ashley Woodard
(Mother), divorced. Two sons were born of the marriage: D.W. and J.W.
(collectively, Children) born in 2005 and 2006, respectively. The divorce decree
ordered joint legal custody of the Children, with Mother having primary
physical custody. Father was ordered to pay weekly child support of $55.
On April 18, 2018, Father filed an Emergency Motion to Modify Custody and
Motion for Appointment of a GAL. Father alleged that Mother was exposing
the Children to recurring instances of domestic violence in the home; Mother’s
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live-in boyfriend, Eddie Nalley (Nalley) drank alcohol every day in front of the
Children; Mother was not giving D.W. his ADHD medication correctly; and
that the appointment of a GAL would be in the best interest of the Children.
On November 1, 2018, the trial court conducted an evidentiary hearing.
Father, Mother, and Nalley testified. At the time of the hearing, Mother was
married to Nalley. Father alleged that he had received several Facebook
messages from the Children stating that Mother and Nalley drank alcohol
“every night” and got into altercations. (Transcript Vol. II, p. 5). Father
claimed that in early April 2018, the Children were awakened from their sleep
by Mother and Nalley fighting. Father claimed that Mother received a black
eye from that altercation. Father also alleged that whenever the Children
visited, he detected that the Children were not very well fed and lacked clean
laundry at Mother’s home. Father also alleged that Mother and Nalley would
at times tell D.W., who had “acne,” that he was “ugly” and “stupid.” (Tr. Vol.
II, p. 10).
Regarding the black eye incident, Mother testified that she “got hit in the face”
while playing football with Nalley while the Children were at school. (Tr. Vol.
II, p. 14). Nalley testified that he felt “awful” when the football hit Mother
squarely “in the nose, and blacked both of her eyes.” (Tr. Vol. II, p. 16).
Nalley testified that he cooks dinner every night, that he goes to the store
almost every day, and that there was plenty of food in Mother’s house. Nalley
testified the Children helped with their laundry, and that he and Mother
assisted whenever necessary. At the close of the hearing, the trial court
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indicated that it would like to conduct an in-camera interview with the
Children. On November 9, 2018, the trial court interviewed the Children to
determine their wishes regarding custody. Thereafter, on December 3, 2018,
the trial court entered its order denying Father’s modification request and the
request for the appointment of a GAL.
Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Modification of Custody
A. Standard of Review
Child custody modifications are reviewed for an abuse of discretion, and we
grant latitude and deference to our trial judges in family law matters. Miller v.
Carpenter, 965 N.E.2d 104, 108 (Ind. Ct. App. 2012). On appeal, we neither
reweigh the evidence nor reassess witness credibility. Id. Rather, we consider
only the evidence most favorable to the judgment and the inferences flowing
therefrom. Id.
Here, the trial court entered findings of fact pursuant to Indiana Trial Rule
52(A). We may not set aside the findings or judgment unless they are clearly
erroneous. Ind. Trial R. 52(A); Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d
1206, 1210 (Ind. 2000). In our review, we first consider whether the evidence
supports the factual findings. Menard, 726 N.E.2d at 1210. Second, we
consider whether the findings support the judgment. Id. “Findings are clearly
erroneous only when the record contains no facts to support them either
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directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A
judgment is clearly erroneous if it relies on an incorrect legal standard. Menard,
726 N.E.2d at 1210. We give due regard to the trial court's ability to assess the
credibility of witnesses. T.R. 52(A). While we defer substantially to findings of
fact, we do not do so to conclusions of law. Menard, 726 N.E.2d at 1210. We
do not reweigh the evidence; rather, we consider the evidence most favorable to
the judgment with all reasonable inferences drawn in favor of the judgment.
Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).
We note that Mother has failed to file an appellee’s brief. In such a situation,
we will not undertake the burden of developing arguments for Mother. Cox v.
Cantrell, 866 N.E.2d 798, 810 (Ind. Ct. App. 2007), trans. denied. We apply a
less stringent standard of review, and we may reverse the trial court’s decision if
the appellant can establish prima facie error. Id. Prima facie means “at first sight,
on first appearance, or on the face of it.” Id.
B. Modification
Father claims that the trial court abused its discretion by denying his motion to
modify custody of the Children. Pursuant to Indiana Code section 31-17-2-21,
a trial court may not modify a child custody order unless modification is in the
child’s best interests and there is a substantial change in one of the several
factors. Indiana Code Section 31-17-2-8 provides that the factors relevant to a
custody order are as follows:
(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 . . .
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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).
On appeal, Father alleges that a substantial change has taken place regarding
statutory factors four and seven as set forth in Indiana Code section 31-17-2-8.
On factor four, the interaction and interrelationships of the child with the
child’s parent or parents, the child’s siblings, and any other person who may
significantly affect the child’s best interests, the trial court entered the following
pertinent finding:
(D) the [c]ourt finds that Mother and Father are both remarried.
The [c]ourt finds that there is some friction between the
[C]hildren and Mother’s husband, [] Nalley. There is no
evidence of friction between the children and Father’s wife.
(Appellant’s App. Vol. II, p. 13). Father does not challenge this finding.
Instead, he argues that the trial court should have found that a substantial
change had occurred when Mother dressed D.W. in a Nazi costume for
Halloween. He adds that Mother’s actions were offensive, considering he has
people in his “family who are Jewish, Hispanic[,] and Black.” (Appellant’s Br.
p. 8). Because Father has not challenged the propriety of the above finding
upon which the trial court could have relied to reject his request to modify
custody, we interpret his contentions as requests to consider evidence contrary
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to the judgment and reweigh the evidence and findings, which we cannot do.
See Yoon, 711 N.E.2d at 1268.
On factor seven, evidence of a pattern of domestic or family violence by either
parent, the trial court entered the following finding
(G) [] Father alleges domestic or family violence in Mother’s
home, pointing out that he saw Mother with a black eye. Mother
and her husband testified that the black eye was the result of
Mother’s failed attempt to catch a football. The [c]ourt finds
that, although there is arguing in Mother’s home, which includes
arguing between the adults and between the adults and children,
this does not rise to the level of being characterized as domestic
or family violence.
(Appellant’s App. Vol. II, p. 13) (internal citations omitted). In his brief, Father
contends that
The behaviors that have been occurring in Mother’s home are
not isolated instances. Again, there were several instances of
family violence that were presented at the November 1st hearing,
and probably at the in-camera hearing[]. Because there was a
pattern of family violence by the Mother, the trial court should
have modified custody.
(Appellant’s Br. p. 8). At the evidentiary hearing, Mother refuted claims of
violence in her home, and she stated that the black eye was the result of her
failed attempt to catch a football. Also, we note that the trial court conducted
an in-camera interview with the Children, and the results of that interview are
not part of the record.
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Father’s argument on this factor consists of him directing our attention to
evidence that supports his position and attempting to discredit the evidence
relied upon by the trial court. This amounts to a repeated request that we
reweigh the evidence and assess witness credibility, which we will not do. See
Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (cautioning that with respect to
custody modifications, 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”). In the instant case, Mother denied the presence of physical
violence in her home, and she offered her own testimony describing how her
blackened eye resulted. The trial court saw Mother and Father as witnesses,
observed their demeanor, scrutinized their testimony as it came from the
witness stand, and conducted an in-camera interview with the Children. See
Tompa v. Tompa, 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). As such, we
conclude that the above finding relating to the domestic violence was not
erroneous.
II. Appointment of a GAL
Father argues that the trial court abused its discretion by denying his motion for
the appointment of a GAL. Dwelling on his claim that domestic violence was
present in Mother’s home, Father asserts, “[i]t is doubtful that the trial court []
could have done an adequate job of investigating these allegations with an [in-
camera] interview. A GAL would have done a much more thorough
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investigation of the allegations and the GAL would have issued a neutral and
comprehensive report.” (Appellant’s Br. p. 8).
Indiana Code Section 31-17-6-1 provides that a trial court may appoint a GAL,
a court appointed special advocate, or both, for a child at any time. Father
notes correctly that the statute places the decision within the trial court’s
discretion. See Gilbert v. Gilbert, 7 N.E.2d 316, 323 (Ind. Ct. App. 2014); In re
B.C.S., 793 N.E.2d 1054, 1060 (Ind. Ct. App. 2003). The purpose of such an
appointment is to protect the best interests of the child. I.C. § 31-17-6-3.
Here, the trial court made the following conclusion in its order: “After careful
consideration of the evidence presented by the parties . . . The [c]ourt, therefore,
DENIES Father’s Emergency Motion to Modify Custody and Motion for
Appointment of [GAL].” (Appellant’s App. Vol. II, p. 13). Considering
Mother’s and Father’s testimony—i.e., they were both committed to protecting
the Children’s best interests—the trial court concluded that the appointment of
a GAL was not necessary. Under the circumstances of the present case, we do
not believe the trial court abused its discretion in failing to appoint a GAL.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its
discretion by denying Father’s motion to modify custody. Also, we hold that
the trial court did not abuse its discretion by denying Father’s request for the
appointment of a GAL.
Affirmed.
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Bailey, J. concurs
Pyle, J. concurs in result with separate opinion
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IN THE
COURT OF APPEALS OF INDIANA
Dustin Woodard, Court of Appeals Case No.
18A-DR-3119
Appellant-Respondent,
v.
Ashley Woodard,
Appellee-Petitioner.
Pyle, Judge, concurring in result
I concur in the result reached by my colleagues, but I write separately to
commemorate the seventy-fifth anniversary of D-Day. At 6:00 a.m. of June 6,
1944, some 4,400 ships and landing craft, carrying 154,000 American, British,
Canadian, and Polish troops, landed with 1,500 tanks, supported by some
11,000 aircraft to oust the Nazi scourge in Europe. THE OXFORD COMPANION
TO UNITED STATES HISTORY 174 (Paul S. Boyer ed., Oxford University Press
2001). Among many atrocities, the Nazi regime was responsible for a
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“genocidal program to exterminate European Jews”; a program which oversaw
the murder of some 6 million Jews. Id. at 43; The Holocaust Resource Center
FAQs, Yad Vashem: The World Holocaust Remembrance Center (6/14/2019).
By the end of World War II, American battle deaths “totaled 292,131, with an
additional 115,185 deaths from other causes.” Id. at 846. “Total military and
civilian deaths in the conflict have been estimated at fifty million.” Id. at 847. I
salute those who served and sacrificed.
In this case, the trial court had the opportunity to weigh the evidence and
evaluate the credibility of the witnesses. However, it must be noted that Father
introduced evidence that Mother had dressed their son in a Nazi soldier’s
uniform for Halloween. When the trial court asked her if she had any objection
to the admission of the photographs, she stated, “No. I don’t see nothing [sic]
wrong with it.” Tr. 7. In light of the tremendous sacrifice of our men and
women in uniform defeating the Nazi regime (our enemy), the following
proverb should breathe new relevance into our collective decision-making: Just
because you can do something does not mean you should.
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