Donald C. Searing v. Karen Vivas (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Mar 08 2016, 6:34 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Caitlin M. Miller
Hunt, Hassler, Kondras & Miller LLP
Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald C. Searing, March 8, 2016
Appellant-Petitioner, Court of Appeals Case No.
84A05-1506-DR-530
v. Appeal from the Vigo Superior
Court
Karen Vivas, The Honorable John Roach
Appellee-Respondent. Trial Court Cause No.
84D01-1407-DR-5999
Bradford, Judge.
Case Summary
[1] Appellant-Petitioner Donald Searing (“Father”) appeals the trial court’s custody
order awarding primary physical custody of minor child, C.S., to Appellee-
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Respondent Karen Vivas (“Mother”). On appeal, Father argues (1) the trial
court’s findings of fact are not supported by the evidence and (2) the trial court’s
conclusions of law are unsupported by the findings of fact. Specifically, Father
argues that it is in C.S.’s best interest for Father to have primary physical
custody and the trial court’s conclusion otherwise is clearly erroneous. Mother
did not file an appellee’s brief. Finding that the trial court’s conclusions are not
supported by the evidence when reviewed under a prima facie standard, we
reverse.
Facts and Procedural History
[2] Father and Mother met online. Father is from Terre Haute, Indiana and
Mother is from Manila, Philippines. In March 2010, Father travelled to the
Philippines to marry Mother and lived in the Philippines with Mother for six
months before moving back to the United States to work and petition for
Mother to immigrate to the States. While Father was in the Philippines,
Mother became pregnant. The child, C.S., was born in the Philippines on
November 3, 2010 and is a citizen of both the United States and the
Philippines. Mother and C.S. came to the United States in June 2012 to live
with Father in Terre Haute, Indiana. Mother is a legal permanent resident and
is permitted to work in the United States. In the time prior to and after moving
to Indiana, Mother took care of C.S. full-time and Father worked to support the
family.
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[3] On April 9, 2014, Mother and C.S. left for a six-week vacation to visit family in
the Philippines. The couple had been fighting prior to the vacation and, two
days into the vacation, Father told Mother he wanted a divorce. Father told
Mother that he would continue to support her until she found a job and
obtained her own apartment but Mother refused. Mother and C.S. were
scheduled to return in May but did not return to the United States until August
25, 2014 when Mother’s friends offered Mother and C.S. a place to live in
Texas. At some point, Mother and C.S. moved to Michigan, where Mother
worked for Meijer, until finally settling in California in December 2014. In the
year following the parties’ separation, Mother travelled with C.S. to the
Philippines, Hong Kong, Texas, Michigan, California, Las Vegas, and
Singapore. Mother never received consent from Father to travel with C.S. and
often did not inform him of when or where she traveled with C.S.
[4] Following their separation, the parties had extensive communication through
text and Facebook messages, many of which were entered into evidence. Many
of the messages from Mother indicate vindictive behavior against Father and
reveal Mother’s intent to keep C.S. from speaking to or seeing Father. Mother
also exposed C.S. to details about the parties’ divorce and frequently disparaged
Father to C.S. Mother admitted to thwarting Father’s ability to communicate
with C.S. and preventing Father from having “meaningful parenting time.” Tr.
Vol. 4, p. 137.
[5] In November of 2014, Father saw C.S. for the first time since he and Mother
left for the Philippines in April. Father became aware that Mother and C.S.
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were in Michigan after a Michigan CVS called Father regarding a prescription
for C.S. Prior to receiving that call, Father did not know that Mother and C.S.
had returned to the United States. That weekend, Father drove to Michigan
and spent approximately two hours with C.S. at a mall under Mother’s
supervision. Father had been unable to speak to C.S. for approximately five
months prior to this visit. Mother testified that she would not have told Father
of her and C.S.’s location if the CVS had not called Father. Father would not
see C.S. again until the trial court ordered parenting time in April of 2015.
[6] In December of 2014, Father purchased Christmas gifts for C.S. and made them
available for pick-up at a California Walmart near Mother’s residence because
Mother would not provide an address where the gifts could be shipped. Mother
later told Father to cancel the presents because she could not make the drive to
the Walmart in time. After the order had been cancelled, Mother took C.S. to
pick up the presents and told C.S. that Father did not get him any presents.
[7] Father filed his petition for dissolution of marriage on July 30, 2014. Summons
was issued by international mail to Mother’s address in Manila but was
returned indicating that Mother had not been served. Father served Mother by
publication in November of 2014. The trial court held an initial hearing on
December 11, 2014 at which Mother was not present. At the hearing, the trial
court dissolved the parties’ marriage, split the parties’ debts, indicated that
custody could not be determined due to Mother’s absence, and ordered that
Father is entitled to parenting time pursuant to the Indiana parenting time
guidelines until custody could be determined.
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[8] On January 12, 2015, Mother requested relief from the judgement and a
hearing was set. On January 30, 2015, Father requested an initial custody and
support determination. On February 20, 2015, the trial court held a scheduling
hearing at which Mother was present by telephone. The trial court set a final
hearing for May 4, 2015 and ordered that, because “[Father] has only seen
[C.S.] for a few hours in the last ten (10) months,” Father be permitted to Skype
with C.S. every Saturday and that the parties arrange dates during which Father
can fly to California to visit C.S. Tr. Vol. 2, p. 7. Mother did not agree to any
dates for Father’s visitation.
[9] On March 31, 2015, Father filed a motion for emergency hearing and a verified
motion for restraining order as to C.S.’s passport. On April 8, 2015, an
emergency hearing was held to set dates for Father’s visitation. The trial court
ordered that Mother would make C.S. available for pick up on April 19, 2015,
that Father would pick up C.S. in California on that date and return to Indiana
with C.S., and that C.S. would stay with Father until the final hearing on May
4th. The trial court warned Mother that she would be held in contempt if she
failed to abide by the order, at which point Mother made the following
statement: “Yeah but I am also concerned on how, my staying in Indiana that
why I, I really need ah, I refuse to, I absolutely refusing for him to go to have to
go to Indiana. Cause I am trying to obtain a petition of my son, suing the
visitation of his father over here in California.” Tr. Vol. 3, p. 8. The trial court
responded by saying “I am going to let you talk to your attorney before you
make any more statements about blatantly disregarding an order of this court.
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So I suggest you talk to your attorney privately and I am going to disregard the
statement that you just made that basically said, you are going to ignore this
court’s order.” Id. at 9. Mother ultimately complied with the trial court’s
order.
[10] The trial court held a hearing on May 4, 2015 to determine custody and settle
all other pending issues. Father submitted several exhibits into evidence
including pay stubs, money transfer records, and over 600 text and Facebook
messages exchanged between the parties. Father submitted a transaction
history of his account with a money transfer service which shows that he sent
Mother $2200 in April and May of 2014 while Mother and C.S. were in the
Philippines. The relevant portions of the parties text communications are as
follows:
April 12, 2014
Mother: Your [sic passim] the only one I could ask [for] help
[with hospital bills]1….
Father: Ill help with them no problem.
…
Father: Just tell me how much. Is he ok?
Mother: Hes awake and not puking so I might get him out
[tomorrow] if he [don’t] have any puking all night. Its up to you
and [I’ll] just find whatever it is to cover everything. Please talk
to [C.S.] when u can hes been calling your name.
Father: No just tell me how much is needed. When he is out we
will skype I wanna see him….Just give me an amount and ill
send it I will pay for it. He is my son.
…
1
It appears that C.S. became ill either prior to leaving for the Philippines or shortly after arriving and was
hospitalized. However, the record is unclear regarding the details of C.S.’s affliction.
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Mother: Just take [C.S.]. I cant go on much longer. You took my
life away. If you want to leave me just take [C.S.] bec[ause] I
cant go on.
…
Mother: Just take [C.S.]….You can have everything now. You
can have [C.S.].
…
Mother: I need to be on my feet again.
Father: Stay [in the Philippines] till your ticket is up we will work
out something to [w]here you can come back if you want to be
here.
Mother: And still divorcing me? [I’ll] deal with this on my own.
[Thank you] though.
…
Father: …I wouldn’t leave you with nothing or no where to go.
April 13, 2014
Mother: [C.S.] is crying already wanting to leave but I cant get all
the money yet…Im waiting for you to send the money s[o] [C.S.]
can go home…Il let you see [C.S.] tonight [please] help our son
out I beg you.
…
Father: Where should I send it and what currency?
…
Father: 800 enough?
April 21, 2014
Father: Will I be able to see my son?
…
Mother: [I don’t know] yet. [I don’t know] what to do with my
life.
Father: I told you to come back.
Mother: Im scared.
Father: Why? I will help you. All of us will. I told you [we’re]
still a family. Just a little farther apart.
Mother: Im too confused
Father: [Please] le[t]s both be there for [C.S.]
Mother: [I don’t know] how without me hurting too much. I
don’t want to fight anymore.
Father: I will help you get on your feet.
…
Mother: Just come home in the apartment we can sleep apart.
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Father: You have everything you need in the apartment.
…
Mother: …I wont be able to afford all the bills on my own.
Father: And Ill help make sure you can get there and take care of
[C.S.].
…
Mother: If your going to watch [C.S.] it has to be in the
[apartment].
…
Father: I will watch him where I can [please] stop trying to
demand everything.
Mother: Sorry I cant let him be near her.
Father: I will help you pay [the bills]. I will watch [C.S.] but you
cant say exactly where.
Mother: If u cant watch him at home I cant do this.
Father: I will keep him safe and no one will try to replace you I
wont allow it.
Mother: Gotta make sure hes not around her.
May 2, 2014
Mother: You can get upset all u want from me wanting to hurt
myself but with how you surprised me after I was supposed to be
on vacation what do you want me to do?...
Father: Get [C.S] new shoes[.] I remember the conditions you
can come back.
Mother: Makis will get him a pair [tomorrow]. [I don’t know] yet
about coming back. I have one year you know where to find us u
can come when u ca[n]. [C.S.] needs to get to a derma soon half
his butt has like huge blister already and around that has full of
hives. [I’ll] take a picture and show you when I change his butt
hes cranky bec[ause] he itch a lot.
Father: I can do 100 is that enough?
Mother: Im going to ask anthony [tomorrow] thanks though.
Plus [C.S.] has a lot of sun burn his shoulders and back that adds
up….I couldn’t get a hold of Anth right now so you might need
to be the one to take care of [C.S.] to get to a derma and u want
to get [C.S.] a new pair of shoes? When did u send us money for
food atleast? Makis even got his diapers. Everything went to the
hospital but oh well its not your fault.
…
Mother: Hey can we talk? Im up having a belly ache on and off
Father: Yes we can talk I sent money there already
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Mother: Im not mad at you and im sorry about my emotions.
Hope u understand that at some point its going to be at its peak.
Im tired of fighting.
May 3, 2014
Mother: [C.S.] has like blisters on his butt. Then rashes all over
his body…We have to go back on Monday for a derma but a
pediatrician gave him creams to apply.
…
Mother: We are heading to hongkong on the 9th
Father: Will I be able to call [C.S.] later when I get off so I can
talk longer to him today or not?
Mother: Depends what time we can be home but if we are home
yeah. But cant assure you he would talk but I will try to convince
him for you. And if we come back you promise that you would
only come to our place to see [C.S.] and not take him anywhere
without me too? Sorry but this is something very important to me
if your not going to work us out at all. But I know you said
maybe your not sure. We aren’t the one who left you I need to
make sure of this before we even come back. Or we could just
stay here you know where to find us. I have 1 year before they
say I abandoned my greencard. If you have a change of heart and
decided you want our family you know where we are. I cant
promise we will wait for you forever but who knows.
Father: That’s fine I guess about the seeing him here part.
Mother: Are you completely giving up on us? So you want us to
stay here?
May 28, 2014
Mother: At one point you were always there for me and [C.S.]
and at this point our son cries for help im just so useless right
now im running to u now the person I trusted our lives and I
know you wont turn your back on [C.S.] on us at this point….
Father: How much?
Mother: Whatever you can afford to help him is fine.
Father: is 100 ok?
Mother: Im short 11,400 to do the mri but if that’s what only you
could afford I don’t have much of a choice thank you though.
Father: 150 is the most I can do.
Mother: Im fine in whatever you can do thank you so much for
helping. I will pay you back on this one I should get paid on the
31st.
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Father: I don’t want [sic] paid back
June 7, 2014
Father: I’ll be on Skype in 30 min
Mother: [C.S. is] crying a lot now.
Mother: Your making him cry now.
Mother: He’s calling you now.
Mother: Its better for you to just leave us alone completely. Your
turning [C.S.’s] life upside down. He’s too freaking little for this.
Right now at his age he will never understand what you have
done and how you ruined his life. I tried to see how it’ll affect
him now. It isn’t good. So [please] just completely go away until
he can understand. You have done nothing for him since we left
to visit anyway. You only got him out of the hospital. That’s the
only thing you’ve done. This is the payback for what you have
done to us. Sorry but your going to deal with it.
June 10, 2014
Mother: Im sorry but about [C.S.] you seem to not understand
how he [i]s everytime he is reminded of you. He would cry
nonstop and throw everything he can touch. Its like there is a lot
of emotional stress on him everytime he hears about you. I cant
force him to talk to you. And no don’t accuse me that im telling
my son he has no father bec[ause] honestly im running out of
excuses to tell him as to why you are not around. [C.S.] is coping
up and very much okay until he got reminded of you. You saw
him how he act. That is not my fault. He showed you how much
he is hurting. Let [C.S.] heal on his own before you try anything.
He needs to heal. No Donny, [C.S.] and I are starting a new life
we are starting to be happy again. I can say now we can live
without you….
June 12, 2014
Father:…I asked you to [please] not [message] me unless about
[C.S.] or extremely imp[ortant]. I need that phone back though
[please] I don’t want to keep paying for it unless you can pay it
off and get your own plan.
Mother: …If you want communication with [C.S.] your not
taking this phone back. You’ll get over it. You want to know?
We should be back in the states few days from now….So if you
have nothing good to say don’t reply to my [messages]. You are
just proving you don’t deserved any kind of place in our lives.
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Father: I have asked that you only [message] me about [C.S.] or
something imp[ortant]…And no I want the phone back I do not
have to pay for your phone to be able to talk to my son.
…
Mother: You can want all you want but your not going to get
them. That’s not even enough for the damage you have done. Oh
yeah you want to return the damaged screened iphone? Your son
threw it bec[ause] you made him f[******] wait. So you pay for
all the shit you’ve done. Make me madder. Try me then. Nothing
is going to be your f[******] way.
Mother: Don’t [message] me back anymore….Once again I’m
going to tell you get out of our lives….[C.S.] is so much better
now. I never want my son to grow up seeing a bad example on
you. So go away.
Mother: Im blocking your number on here from now on.
August 7, 2014
Mother: As long as im in the Philippines your freaking laws have
no jurisdiction on me and [C.S.]….
November 12, 2014
Father: You think not letting me talk to him and have any.
relationship with him is helping? No it makes it worse when I
finally do get to talk to him.
Mother: I [don’t] care what you say anymore just leave us alone.
November 17, 2014
Mother: We need to talk about [C.S.]. Its Karen.
…
Mother: I want you to be in his life [I don’t know] how are we
going to do it but he needs you.
Mother: He needs you more than anything.
Mother: Im in the process of getting back on my feet I have a job
but I need a bit of help with [C.S.] too.
…
Father: I’m going to need [C.S.’s] social. I should have a job.
with insurance soon I need it to put him on it. I might need the
address to[,] I’ll let you know when I find out.
Mother: I’m not letting you claim him on taxes[,] im filing my
own and im claiming him on it. For now im not giving his
social. I should get my insurance too soon. So I can just put him
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on it eventually. I should get my transfer at work soon. Im
moving to [California].
November 19, 2014
Mother: You can visit him anytime though….
Father: How can I visit without your address?
Mother: I’ll give you my CA address I think we should move
after thanksgiving. I’ll live 40 minutes away from LAX. Better
opportunities in CA….
Mother: Plus delta is a part time so Jon said just quit it….
Father: Let me have him for thanksgiving
…
Mother: My son is not a freaking toy you’ll want him when its
convenient on you. You can all go to freaking hell.
November 23, 2014
Father: Do me a favor and ask your lawyer about a term called
parental kidnapping.
Mother: Oh yes we actually look into that and they explained to
me that you cant even charge me of that so screw you bec[ause] I
know what I do the day I get back my feet to America.
…
Father: Can I just have him tues weds Thursday I’ll bring him
back.
Mother: We might fly on weds that the problem.
…
Father: Ok [please] I’m only asking for a few days bec[ause] it’s
been so long since I got to hug him.
Father: I will never keep him from going anywhere with you
bec[ause] I know you have his best interest in mind. I just miss
my little boy.
Mother: I’ll let you know [tomorrow] [I’ll] check if I could get a
later flight than [Wednesday].
Mother: Please allow him to be in Manila I have to work two
jobs to pay for daycare my paycheck from delta just goes to
daycare. In manila he can be a real kid and you know it. He can
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heal faster. I cant give up my jobs here in America bec[ause] this
is all for our son….
Father: Will he just be there alone and you here?
Father: Bec[ause] that doesn’t make much sense to me bec[ause]
he can stay with me and you can see him whenever you want.
That’s not a problem at least then he’s still close to you.
Father: I’m not trying to take him away from you don’t get the
wrong idea I’m just trying to help
Mother: No that wont work [C.S.] is better off in manila for now.
He’s been asking me for that. He’s been telling me get on the
plane….I might go back to Manila with [C.S.] in February and
see from there….you know how much he can be better in
Manila. I just want to get all settled then get him back here but
we need to renew his US passport in June….
November 24, 2014
Father: [Please] let me know about me having C.S. for
thanksgiving.
Father: Hey you told me you were going to tell me before you
went to work and said you had to work early, and I haven’t
heard from you about it.
November 26, 2014
Mother: Sorry been busy at work I cant let [C.S.] go. Our
schedule is tight and I [don’t] want to get [C.S.] confused at all.
What you want will never be easy on me.
Mother: Give it more time [please] I [don’t] want [C.S.] to suffer
emotionally too much I know you love him lets do the best for
him….His school in Manila emailed me and they were wanting
to put [C.S.] in a special program….[C.S.] and I has to go home
in February for Mon’s wedding and maybe I’ll stay there 6
months and let [C.S.] continue his school. I wont ask you to
support him anymore….I know you wouldn’t hinder anything
that would benefit our son I know you’ll be proud of him. Believe
me im doing my best to be a responsible mom and dad to our
son. One day you guys will see each ot[h]er again. Even if you
left us even if you ruined our family….Let him renew his
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passport so he can keep going back n forth from manila and the
US so theres a chance that he could see you one day when he is
ready when he is all healed….
November 29, 2014
Mother: …You think after what you did I could trust you like
that? We might have been married before but you completely
broke me and [C.S.]’s trust….Im tired of you bugging me for the
things you want to happen right away. I am keeping my son from
all the negativity of life. If that includes yourself than my son
doesn’t need you. Don’t even start me on this. You know me
better [I’ll] fight you all until the very end….
Father: All I wanted was the address. [Because] every time you
have said after work you don’t do it.
Father: I just want to know where to go to see [C.S.]….
Father: I’m not trying to fight I just need to make the plans today
and I can’t if I have no address.
Mother: I honestly don’t know the exact address I just know we
are in Lansing [Michigan]….
Mother: If your coming [please] I don’t need the woman your
living with to be here or be around [C.S.]. Im avoiding [C.S.] to
be around people who has somehow caused this family to break
apart. Let him move on completely. Remember he is carrying
mostly filipino values now and I prefer that.
Father: [Please] let me know right away
Father: You don’t know the number on the house and the street
your on?
Mother: No I barely look around we don’t go out its too cold and
when I get home its late at night
Father: No mail to look at?
Mother: Why cant you wait at all?
Father: Bec[asue] I have to make the plans to get there
Father: I don’t have much time to do it I wouldn’t be bugging
you if I didn’t need to.
Mother: Im in bed tryin to go back to freakin sleep I got off at 4
am in the morning then [C.S.] woke up when I get home and I
work again today.
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Father: I’m sorry.
Mother: Im close to blocking your number its getting annoying
your being so demanding when you don’t even feed this little
boy. [Please] let me sleep some.
Father: I’m not trying to be annoying but you are asking me to
do it on the drop of a dime to drive all that way. I did have things
going on and I’m cancelling and dropping them all to see him.
Mother: Then don’t do it. I am not asking you at all. Im letting
you know whats going on and letting you have a chance to see
him before we head to SoCal and start a new life. This will not
benefit me at all. It wont matter to me if you come or not.
Mother: So don’t even tell me what your dropping for him. [C.S.]
is definitely going on with his life without even seeing you. [C.S.
is] lost. So think before you even utter a damn word!
Mother: You have to promise you’ll come without that woman
tomorrow. Or I wont let you in….
Father: [I’ll] come alone. Are you going to give me the address?
Mother: [I don’t know] if you should come I have things to do
with [C.S.] tom[orrow] like get him a haircut, new pair of shows
and some jeans. [I don’t know] if you would wanna go still and
see him.
Father: Yeah I wanna go I canceled a training class for my new
job to see him.
December 12, 2014
Mother: Can you skype [C.S.] now.
Mother: Hes cryin wanting your face.
Father: Yeah if you want me to hang on let me get on a
computer.
Mother: He’s ready on it.
Father: Ok.
…
Mother: [C.S.] is wanting to back on skype with you.
December 14, 2014
Father: Ok I will so I’ll have your address. Like I have been
asking you for.
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Mother: Yeah you’ll get it it doesn’t matter anymore. But the
legal battle is about to start.
…
Mother: Having him with me is you losing big time. You cant
take back any time you lost anymore and one day [C.S.] will find
out what you did.
…
Mother: Sorry but [C.S.] doesn’t need a father that tossed him to
the curb. A father who only cares for himself.
December 15, 2014
Mother: …[C.S.] keep telling Jon last night…my daddy has a
new family I only have you my mommy and the people he is
close to us now. At 4 jon is surprised how much knowledge
[C.S.] has about the divorce….
Mother: You have lost [C.S.]’s respect on you….[C.S.] doesn’t
need a father like you.
December 25, 2014
Mother: Remembe[r] my son is a dual citizen you cant revoke his
[U.S.] passport alone either even if you revoke it means he can
head back home to the philippines and [I’ll] give up his [U.S.]
citizenship and choose to be 100% Filipino….that way [he] can
have the opportunity anywhere else in the world without you
being in the way.
December 30, 2014
Mother: There’s nowhere you guys can email me anymore. Im
totally done with all of you and now that [C.S.] is going to get
our own place im not giving out any info anymore. Kill me first
before you can take [C.S.] around that woman [referring to
Father’s wife]. Im completely done talking to you….
Petitioner’s Ex. 1, 4-7.
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[11] At the time of the final hearing, Father was living in Terre Haute with his new
wife and their then-two-month-old son. Father makes $14.36 per hour and
works approximately forty hours per week. While living in Michigan, Mother
was making $9.57 as a warehouse engineer. At the time of the final hearing,
Mother was making $10.00 an hour working approximately thirty hours per
week in California. Mother testified that she was received a degree in industrial
engineering in the Philippines and worked for Shell Oil Company in Manilla.
Mother stated that she is unable to work in the United States as an engineer
until she completes certain classes and has her transcripts certified. At the time
of the final hearing, Mother had not obtained any such certification.
[12] On May 27, 2015, the trial court issued the following order:
1. The parties met online and decided to pursue a relationship.
Petitioner visited respondent at her home in the Philippines for
approximately 6 months in 2010. The parties were married and
petitioner returned to the States. Several months later, the
parties’ son, [C.S.], was born on November 10, 2010. Petitioner
returned to the Philippines for 1 week to visit his son on his first
birthday. That was their first meeting.
2. Respondent was an engineer in the Philippines having received
a degree in Industrial Engineering. She worked for Shell Oil
Company in Manilla. Respondent chose to move to the United
States with the couples’ son to start their family life here. She
received permission and moved to the United States in July, 2012
with the couples’ son.
3. From July 2012 to the parties’ separation in and around April,
2014, petitioner worked full time, six (6) days per week, twelve
hours (12) per day. Respondent stayed home to care for [C.S.].
Respondent is not able to work in the States as an engineer until
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she gets her transcripts certified and reviewed. She does not have
a driver’s license and has not learned how to drive. Petitioner
did all the driving during the marriage. This had the effect of
isolating respondent in the home.
4. On April 9, 2014, respondent left with her son on vacation to
visit family in the Philippines. The couple had been fighting
before the vacation. A few days into the vacation, petitioner
informed respondent he wanted a divorce.
5. Respondent was supposed to return from vacation in May of
2014. She did not return to the United States until August, 2014.
There was communication, sometimes acrimonious, between the
parties from April, 2014 through the end of the year when
respondent settled in California. In November, 2014, petitioner
was able to see his son in Michigan for the first time in about 7
months.
6. By order entered December 11, 2014, the marriage of the
parties was dissolved.2
7. Mother has custody of the minor child and lives in California.
Father, along with his new wife and child, lives in Terre Haute.
8. Divorce under the best of circumstances, especially when
children are involved, is difficult at best. Add to the mix that
respondent is from another country, from a different culture, and
that petitioner chose to reveal his intent to divorce by telephone
during his wife’s vacation out of the country, and you have the
perfect recipe for the disaster which befell this couple during the
last twelve (12) months. While the court does not condone any
attempt to thwart parenting time or to denigrate another parent
in the eyes of a child, what has occurred in this case is at least
explainable. Petitioner acknowledges as much in his regret over
the timing of his decisions.
2
From the evidenced presented during the hearing, it became clear petitioner was not completely
forthcoming in his testimony to the court during the final hearing on the petition for dissolution.
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9. A voluminous amount of text messaging and other internet
communications were introduced during the hearing. A number
of messages were filled with vitriol, pain, anger and threats. It is
noteworthy, however, that a number of communications were
not. Indeed, they contained communication you would not
expect between two parties navigating their way through the
initial stages of a divorce, custody and support issues. Each side
can with equal force pick out messages in support of their own
testimony and in opposition to the other’s.
10. Respondent did not deny any of the communications entered
into evidence. She explained the regretful ones were fueled by
anger, hurt, uncertainty and a desire to protect her son. She also
testified that she is fully willing to comply with all court orders
regarding custody and parenting time. The court finds these
statements credible. Time will tell if faith in respondent’s word is
justified.
Having reviewed the testimony and evidence, having observed
the witnesses while testifying, and considering all of this in light
of the factors set forth in I.C. § 31-17-2-8,
It is hereby ordered:
1. It is in the best interest of the child that mother, Karen
(Searing) Vivas, have primary physical custody of the parties’
son, [C.S.]. The same is ordered hereby. The parties shall have
joint legal custody.
2. Mother shall surrender to Father, for safekeeping, both
passports for the minor child. Said passports may be used for
travel, and petitioner shall fully cooperate in transferring the
same upon reasonable notice. The passports are ordered
returned to petitioner at the end of any such travel.
3. Father is awarded Parenting Time under the Indiana Parenting
Time Guidelines where distance is a factor, with the exception
that the Court is ordering the guidelines for children of five (5)
years of age and older to take effect immediately given the child’s
ability to travel well and the little contact between father and son
over the last year. Specifically, Father shall [sic] seven (7) weeks
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starting this summer. He shall, within ten (10) days of this order,
notify respondent of his selection of dates. If no such selection is
made, respondent shall make the section (the regular April 1st
deadline shall hereinafter apply). Father shall also have seven (7)
days of the school winter vacation period, plus the entire spring
break, including both weekends if applicable. The parties shall
equally split the cost of transporting the child to and from
California for Parenting Time.
4. In addition, Mother is ordered to continue making the child
available for Skype with Father every Saturday afternoon, or as
otherwise agreed to by the parties, but no less than one time per
week.
5. Father is ordered to pay Child Support in the amount of One
Hundred Eight Dollars ($108.00) per week. Father is to keep
health insurance on the child, and mother is ordered to cooperate
fully in finalizing that coverage. Uninsured health insurance
expenses are divided per the Child Support Obligation
Worksheet attached hereto and incorporated by reference.
Counsel for the parties and the State of Indiana shall cooperate in
effecting an appropriate Income Withholding Order.
6. Mother shall claim the child as an exemption on her 2014 tax
returns, and every even year thereafter. Father shall claim the
child as an exemption on his 2015 tax returns and every odd year
thereafter so long as he is current, per statute, with his Child
Support obligation.
7. The parties are ordered to read all of the Indiana Parenting
Time Guidelines and to work diligently to effect both the letter
and spirit of the same when it comes to decision affecting their
son. The child’s well-being and adjustment will be greatly
enhanced by this effort. Neither party shall make derogatory
remarks about the other in front of the child, and Mother is
admonished to use better judgment about information she shares
with the child about the issues herein. These matter are left to
the adults to resolve and work through. It is not the burden, or
responsibility, of the child.
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Appellant’s App. pp. 20-23 (footnote in original).
Discussion and Decision
[13] Father contends that the trial court’s award of primary physical custody to
Mother is clearly erroneous and that it is in C.S.’s best interest that Father have
primary physical custody. Father argues that the trial court’s findings of fact
are not supported by the evidence and that the trial court’s judgment is
unsupported by its findings.
Standard of Review
[14] “Child custody determinations fall squarely within the discretion of the divorce
court and will not be disturbed except for an abuse of discretion.” Aylward v.
Aylward, 592 N.E.2d 1247, 1250 (Ind. Ct. App. 1992). Where, as here, the trial
court issues findings and conclusions pursuant to Indiana Trial Rule 52(A), our
standard of review is two-tiered.
First, we determine whether the evidence supports the findings,
and second whether the findings support the judgment. The trial
court’s findings and conclusions will be set aside only if they are
clearly erroneous. In reviewing the trial court’s entry of special
findings, we neither reweigh the evidence nor reassess the
credibility of the witnesses. Rather we must accept the ultimate
facts as stated by the trial court if there is evidence to sustain
them.
Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002) (citations omitted).
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[15] We note that Mother has not filed an appellee’s brief. In such circumstances,
we do not undertake the burden of developing arguments for the appellee.
Maser v. Hicks, 809 N.E.2d 429, 432 (Ind. Ct. App. 2004). When an appellee
does not file a brief, we apply a less stringent standard of review and may
reverse the trial court when the appellant establishes prima facie error. Id.
“Prima facie” is defined as “at first sight, on first appearance, or on the face of
it.” Id. (quoting Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App.
2003).
I. Trial Court’s Findings of Fact
[16] Father specifically challenges eight of the ten findings of fact outlined in the
trial court’s order.3 We address the findings which we find dispositive.
8. Divorce under the best of circumstances, especially when
children are involved, is difficult at best. Add to the mix that
respondent is from another country, from a different culture, and
that petitioner chose to reveal his intent to divorce by telephone
during his wife’s vacation out of the country, and you have the
perfect recipe for the disaster which befell this couple during the
last twelve (12) months. While the court does not condone any
attempt to thwart parenting time or to denigrate another parent
in the eyes of a child, what has occurred in this case is at least
explainable. Petitioner acknowledges as much in his regret over
the timing of his decisions.
9. A voluminous amount of text messaging and other internet
communications were introduced during the hearing. A number
3
Father does not challenge Findings 1 and 6.
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of messages were filled with vitriol, pain, anger and threats. It is
noteworthy, however, that a number of communications were
not. Indeed, they contained communication you would not
expect between two parties navigating their way through the
initial stages of a divorce, custody and support issues. Each side
can with equal force pick out messages in support of their own
testimony and in opposition to the other’s.
10. Respondent did not deny any of the communications entered
into evidence. She explained the regretful ones were fueled by
anger, hurt, uncertainty and a desire to protect her son. She also
testified that she is fully willing to comply with all court orders
regarding custody and parenting time. The court finds these
statements credible. Time will tell if faith in respondent’s word is
justified.
Appellant’s App. p. 21. Father argues that Mother’s nationality is irrelevant
and that the trial court is essentially rationalizing and condoning Mother’s
deleterious behavior by awarding Mother custody despite her alleged efforts to
alienate C.S. from father. Father claims that the trial court “ignored that all of
the communications that can reasonably be described as having contained
vitriol, anger and threats were from Mother to Father.” Appellant’s Br. p. 27.
We agree.
[17] We fail to see how being from a different culture in any way justifies or explains
Mother’s attempts to thwart parenting time or denigrate Father to C.S.
Similarly, although Father may regret the timing of his decision to reveal his
desire to divorce Mother while she was in the Philippines, Mother’s resulting
poor emotional state does not lessen the severity of her yearlong alienation of
C.S. from Father. The trial court found that both Mother and Father sent
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accusatory messages, made regrettable choices, and could “with equal force”
pick out evidence supporting their own testimony. However, a thorough review
of the messages exchanged between the parties overwhelmingly, if not entirely,
supports Father’s arguments regarding (1) Mother’s alienation of the child from
Father by disparaging Father and preventing communication with C.S., (2)
Father’s monetary support of Mother and C.S., (3) Mother’s repeated
dishonesty to Father and to the trial court, (4) indications that Mother has been
emotionally unstable, and (5) evidence that C.S.’s time with Mother in the past
year has had a detrimental effect on C.S. both mentally and physically.
Accordingly, we find that the trial court’s findings are unsupported by the
evidence.
II. Trial Court’s Conclusions of Law
[18] Indiana Code section 31-17-2-8 requires that a court must enter a custody order
consistent with the best interests of the child and consider the following factors:
(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:
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(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.
Additionally, this court has often noted that stability and permanency is of
significant importance for children. H.G. v. Ind. Dep’t of Child Servs., 959 N.E.2d
272, 293 (Ind. Ct. App. 2011) (“A child’s need for stability is of great
importance.”); Haley v. Haley, 771 N.E.2d 743, 747 (Ind. Ct. App. 2002) (“as a
general proposition, stability and permanence are considered best for the
child.”).
[19] Father argues first that “the [trial] court did not do a best interest analysis
regarding the custody of [C.S.].” Appellant’s Br. p. 30. However, the trial
court’s order specifically states that it did consider the statutory factors.
“Having reviewed the testimony and evidence, having observed the witnesses
while testifying, and considering all of this in light of the factors set forth in I.C.
§ 31-17-2-8, it is hereby ordered….” Appellant’s App. pp. 20-21. The trial
court did not make specific findings on each factor; however, the trial court is
not required to do so unless requested to do so by one of the parties. Hegerfeld v.
Hegerfeld, 555 N.E.2d 853, 856 (Ind. Ct. App. 1990).
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[20] Father also contends that it is in C.S.’s best interest that Father have primary
physical custody and that the trial court’s determination to the contrary is
clearly erroneous. We agree.
1. Age and Sex of the Child
[21] Although neither C.S.’s age nor gender are of particular importance in the best
interest analysis, we note that Mother’s frequent travelling with C.S. may be
detrimental considering his young age. Mother testified that in the eight
months prior to the hearing, she and C.S. had traveled to the Philippines, Hong
Kong, Texas, Michigan, California, Las Vegas, and Singapore and that they
lived for an extended period in at least four different places––Texas, Michigan,
California, and the Philippines––during that time. C.S. was three and four
years old during this period. Permanence and stability are of particular
importance at such a young age and it appears Mother has provided little
stability for C.S. in the year she has had custody. See generally J.K.C. v. Fountain
Cty. Dep’t of Pub. Welfare, 470 N.E.2d 88, 93 (Ind. Ct. App. 1984) (noting that
permanence and stability are particularly important for children approaching
school age).
2. The Wishes of the Child’s Parents
[22] Both Father and Mother requested primary physical custody of C.S. However,
Mother at several points in the year prior to the final hearing stated that she was
unable to take care of C.S. and thought C.S. would be better off somewhere
else. In April of 2014, Mother asked Father to take C.S., however, she changed
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her mind after Father sent her money for airfare to return to the United States.
In November of 2014, Mother told Father that she thought it would be best for
C.S. to live with her family in the Philippines while Mother stayed in California
despite the fact that Father offered to take C.S.
3. The Wishes of the Child
[23] There is no indication in the record of the child’s preference regarding primary
placement.
4. The Interaction and Interrelationship of the Child with
Others
[24] The record suggests that C.S. has a positive relationship with both parents.
C.S.’s relationship with Father may have been strained during 2014 due to
Mother blocking communication between Father and C.S, preventing Father
from seeing C.S., and disparaging Father to C.S.
[25] Much of Father’s family lives near Father in Terre Haute, has been actively
involved in C.S.’s life, and has a good relationship with C.S. Father’s sister,
Amanda Sanders, travelled with Father to pick up C.S. from California and
testified that it’s been “amazing” for the family to have C.S. back. Tr. Vol. 4, p.
84. Sanders and Father’s sister-in-law, Vickie Searing, testified that C.S. was
very happy while back with Father in the weeks prior to the final hearing.
Since divorcing Mother, Father has remarried and has had a child with his new
wife.
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[26] As of the final hearing, Mother was living in California with friends. Mother’s
boyfriend, Jon, helps take care of C.S., helps support Mother and C.S and,
according to Mother, has a good relationship with C.S.
5. The Child’s Adjustment to the Child’s Home, School, and
Community
[27] According to Mother, C.S. was getting ready to start pre-kindergarten classes at
the time of the May 2015 hearing. Based on his young age and frequently
changing living situation, there is little indication of how he has adjusted to his
current home and community.
6. The Mental and Physical Health of all Individuals Involved
[28] C.S. has dealt with physical and mental health issues. According to Mother,
C.S. developed emotional issues in the year preceding the May 2015 hearing,
while in Mother’s care. Mother testified that C.S. was scheduled to begin
attending a therapeutic school in California in the summer of 2015 because he
is “emotional and violent.” Tr. Vol. 4, pp. 119-120. Mother also stated that
C.S. would suffer emotional outbursts in response to Mother becoming upset
about domestic and legal issues with Father.
[29] Mother frequently told C.S. information about Mother and Father’s domestic
and legal issues which upset C.S. In a text message, Mother states that her
boyfriend “[was] surprised how much knowledge [C.S.] has about the divorce.”
Tr. Vol. 4, p. 58. During a skype session between Father and C.S., Mother told
C.S. that “he had to talk to [Father] or [Father] was going to put her in jail.” Tr.
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Vol. 4, p. 56. Mother testified that she did not think it was inappropriate to tell
C.S. such things. On one occasion, C.S. asked Mother why she was crying,
and Mother responded that it was because she “was scared he was going to live
with his dad.” Tr. Vol. 4, p. 128. Mother often commented that Father
abandoned her and C.S. and that C.S. did not need Father in his life and was
better off without him. Mother stated she “would try and hide [C.S.]” and that
she told [C.S.] that Father was trying to take him from her. Tr. Vol. 4, p. 64.
Mother stated that she prevented Father from speaking to C.S. because C.S.
would “flare up and be violent” after Skyping or speaking to Father because he
wished to see Father or speak to him more. Tr. Vol. 4, p. 112.
[30] C.S. also had physical issues while in Mother’s custody. In April of 2014, while
in the Philippines, C.S. developed a severe rash and blisters over a large area of
his buttocks. Upon being returned to Father a year later in April 2015, Father
took C.S. to the doctor where he was diagnosed and treated for scabies. C.S.
has significant scarring from the untreated scabies and Mother testified that he’s
embarrassed by the scars. It appears that Mother had taken C.S. to the doctor
to be treated but did not follow up with treatment.
[31] Father offered to help pay for C.S.’s medications and had previously requested
that Mother allow him to put C.S. on his medical insurance but Mother denied
Father’s request because Mother did not want Father to be able to claim C.S.
on his taxes. On November 23, 2014, Father and Mother exchanged the
following texts:
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Father: I’m going to need [C.S.’s] social. I should have a job
with insurance soon I need it to put him on it. I might need the
address to[,] I’ll let you know when I find out.
Mother: I’m not letting you claim him on taxes[,] im filing my
own and im claiming him on it. For now im not giving his
social. I should get my insurance too soon. So I can just put him
on it eventually. I should get my transfer at work soon….
Petitioner’s Ex. 1. Father did obtain a new job the following week which
provided medical benefits to dependents. Mother was terminated from the job
she held at Meijer shortly after the time of these texts.
[32] The record also suggests that Mother has had her own emotional issues.
Messages from Mother reveal that she has had frequent and severe emotional
outbursts and mood swings, has made threats to Father, and frequently
fabricates stories. Several times, Mother told Father and Father’s sister that she
wanted to commit suicide. Mother also told Father of an instance when she
attempted suicide and was in a coma, which she later admitted was a lie.
Mother told Father that she had a friend talk to the trial court judge which she
admitted was a lie and which she said in order “to scare [Father].” Tr. Vol. 4,
p. 136. Mother repeatedly told Father, and represented to the court, that she
was a Delta Airlines employee and could obtain free flight passes for herself,
C.S., or Father. Mother admitted that this was a lie. Mother attempted to have
the divorce set aside because she claimed she was not served and did not know
about the proceedings. However, the trial court determined that this was a lie
based on a text message sent by Mother indicating that she had a friend check
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the docket and that she knew, prior to the initial hearing, that Father filed for
divorce pro se.
7. Evidence of a Pattern of Domestic or Family Violence by
Either Parent
[33] There were unsubstantiated allegations of domestic violence made by both
parties against one another. Father denied the allegations and Mother was not
questioned regarding Father’s allegations against her. Father’s two witnesses,
Sanders and Searing, denied any knowledge of domestic abuse.
8. Evidence that the Child has Been Cared for by a De Facto
Custodian
[34] There is no evidence that C.S. has been cared for by a de facto custodian.
9. Additional Considerations
[35] As we stated above, permanency is of significant importance in considering the
best interests of a child. Haley, 771 N.E.2d at 747. As of the hearing, Mother
was living with friends rent-free and paying only for utilities. In the year prior
to the hearing, Mother had lived in four different cities, apparently staying with
friends and family in each city. Father has remarried and lives in Terre Haute
with his wife and son. Father also has a large extended family in Terre Haute
that are available to watch C.S. if need be. In terms of stability, it seems clear
that Father is much better equipped than Mother to provide C.S. with a stable
and permanent home environment.
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[36] The trial court in this case was making an initial custody determination. At an
initial determination of child custody, the trial court is concerned only with the
best interests of the child and there is no presumption in favor of either parent.
Ind. Code § 31-17-2-8; Spoor v. Spoor, 641 N.E.2d 1282 (Ind. Ct. App. 1994).
The best interest analysis overwhelmingly suggests that placement with Father
is in the best interest of the child. Mother has demonstrated that she is
emotionally unstable, has provided C.S. with little consistency in his living
situation, has threatened to leave the country with C.S. permanently to avoid
the court’s jurisdiction, shares inappropriate personal and legal information
with the child, and does not acknowledge the potential deleterious effects her
actions may have on C.S, choosing instead to blame Father for C.S.’s
emotional issues. Furthermore, Mother failed to provide adequate medical
treatment for C.S.’s scabies for a year resulting in significant scarring.
[37] We acknowledge that the trial court found that Mother was credible when she
stated that she would comply with future court orders regarding parenting time.
Judging the credibility of witnesses is the trial court’s purview and we do not
disturb such determinations on appeal. Dallas v. Cessna, 968 N.E.2d 291, 296
(Ind. Ct. App. 2012). However, a promise to comply in the future does not
provide Mother with a free pass for her yearlong attempts to impede Father
from seeing his son and otherwise disparaging Father to C.S. It appears that
the trial court essentially ignored or justified much of Mother’s vindictive
behavior. Although generally regrettable, this behavior is particularly troubling
due to the detrimental effect it seems to have had on C.S.
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[38] Additionally, despite the trial court crediting Mother’s promise to comply with
its orders, it appears that the trial court had reservations about this decision.
The trial court seemed to acknowledge that Mother may be a flight risk due to
the fact that Mother previously kept C.S. for an extended period in the
Philippines and made multiple threats to take C.S. back to the Philippines to
avoid the court’s jurisdiction. Accordingly, the trial court ordered that Father
maintain possession of C.S.’s passports. The trial court also stated that “[t]ime
will tell if faith in [Mother’s] word is justified.” Appellant’s App. p. 21.
[39] Although we give the trial court significant discretion in family law matters,
there is simply a complete lack of evidence which suggests that Mother is better
equipped to parent the child and that it is in the best interest of the child for
Mother to have primary physical custody. While there is significant evidence
that Mother’s actions have detrimentally affected C.S. and questions regarding
her ability to provide a stable home life for C.S., there is no substantial evidence
that would create any similar concerns regarding Father’s ability to care for
C.S. Accordingly, we find that the trial court’s conclusions are clearly
erroneous.
Conclusion
[40] We find that the trial court’s findings of fact are unsupported by the evidence
and that the trial court’s conclusions of law are clearly erroneous. Accordingly,
we reverse the trial court’s order granting physical custody of C.S. to Mother,
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order that Father be given physical custody of C.S., and remand for
recalculation of child support obligation in accordance with this decision.
[41] Reversed and remanded with instructions.
Pyle, J., concurs.
Baker, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Donald C. Searing, Court of Appeals Case No.
84A05-1506-DR-530
Appellant-Petitioner,
v.
Karen Vivas,
Appellee-Respondent.
Baker, Judge, dissenting.
[42] I respectfully dissent. It is well established that in family law matters, we must
give wide latitude and deference to trial court judges; there is good reason for
this deference:
we 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, or
that he should have found its preponderance or the inferences
therefrom to be different from what he did.
Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). In reviewing a child custody
determination, which requires proof by clear and convincing evidence,
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an appellate court may not impose its own view as to whether the
evidence is clear and convincing but must determine, by considering
only the probative evidence and reasonable inferences supporting the
judgment and without weighing evidence or assessing witness
credibility, whether a reasonable trier of fact could conclude that the
judgment was established by clear and convincing evidence.
In re Guardianship of B.H., 770 N.E.2d 283, 288 (Ind. 2002).
[43] In this case, the trial court heard testimony from multiple witnesses and
considered voluminous documentary exhibits. While the trial court expressed
concern about the manner in which Mother has behaved over the past two
years, it found that her behavior was “explainable,” credited her expressions of
regret over her negative communications with Father, and found her promises
to abide by future court orders “credible.” Appellant’s App. p. 21. The trial
court also noted that, in reviewing the text messages exchanged between the
parties, “[e]ach side can with equal force pick out messages in support of their
own testimony and in opposition to the other’s.” Id. Finally, the trial court
observed that “[f]rom the evidence presented during the hearing, it became
clear [Father] was not completely forthcoming in his testimony to the court
during the final hearing on the petition for dissolution.” Id. at 21 n.1.
[44] The trial court had the opportunity to interact with the parties in person and we
may not second-guess its credibility determinations. While I may have reached
a different conclusion had I been the trial judge, that is not the lens through
which we must view the decision as an appellate tribunal. I believe that our
standard of review compels us to affirm in this case because sufficient evidence
Court of Appeals of Indiana | Memorandum Decision 84A05-1506-DR-530 | March 8, 2016 Page 36 of 37
and inferences support the trial court’s order, and respectfully dissent from the
majority decision as a result.
Court of Appeals of Indiana | Memorandum Decision 84A05-1506-DR-530 | March 8, 2016 Page 37 of 37