In Re: The Marriage of: Christine Toney v. Edward Thomas (mem. dec.)

MEMORANDUM DECISION
Mar 09 2016, 8:45 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Kimberly A. Jackson Julie A. Camden
Indianapolis, Indiana Camden & Meridew, P.C.
Fishers, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Marriage of: March 9, 2016
Court of Appeals Cause No.
Christine Toney, 06A05-1503-DR-121
Appellant-Petitioner, Appeal from the Boone Superior
Court
v.
The Honorable Matthew C. Kincaid,
Judge
Edward Thomas, Cause No. 06D01-0910-DR-724
Appellee-Respondent.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, C.T. (Mother), appeals the trial court’s Order modifying
physical custody of her minor child, G.T., (Child), in favor of Appellee-
Respondent, E.T. (Father).
[2] We affirm.
ISSUES
[3] Mother raises four issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion in denying Mother’s motion for
continuance;
(2) Whether the trial court abused its discretion in admitting certain evidence;
(3) Whether the trial court abused its discretion in admitting hearsay evidence;
and
(4) Whether the trial court abused its discretion by modifying Mother’s physical
custody of the Child.
FACTS AND PROCEDURAL HISTORY
[4] Mother and Father were married on September 29, 2006. On September 24,
2007, the couple welcomed the Child. Subsequently, the parties divorced in
January 2010, and on January 19, 2010, pursuant to a property and child
settlement agreement (Agreement), the parties agreed that Father and Mother
would share joint legal custody of the Child, with Mother having primary
physical custody. Father would exercise parenting time from 6:00 p.m.
Wednesday until 6:00 p.m. Thursday, and every other Saturday from 6:00 p.m.
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until 6:00 p.m. Sunday. Holiday parenting time was governed by the Indiana
Parenting Time Guidelines (Guidelines). Additionally, parties were required to
comply with the provisions of Indiana Code section 31-1.7-2.2-1 requiring
notice prior to any intended move.
[5] Both parties remarried - in September 2010, Mother married M.T., and in April
2014, Father married E.T. In July 2011, M.T. was arrested and charged with
domestic battery, a Class A misdemeanor, for hitting Mother. The probable
cause affidavit indicated that the domestic violence was not an isolated incident
and that M.T. had battered Mother on at least five prior occasions. On January
4, 2012, M.T.’s case was dismissed but was reopened on January 27, 2012,
under a different cause number. On October 3, 2012, the trial court conducted
M.T.’s bench trial, finding M.T. guilty as charged. M.T. was sentenced to 180
days in Boone County Jail, with 176 days suspended to probation. On April
11, 2014, Mother and M.T. divorced.
[6] On July 31, 2014, Father filed a Verified Petition to Modify Custody and Child
Support. On February 12, 2015, the trial court held the modification hearing.
Father introduced evidence that after the divorce was finalized, Mother moved
five times causing the Child to be enrolled in six different schools in a span of
five years. Father also stated that Mother had failed to consult him in the
school changes. Additionally, each time Mother moved, Father relocated to be
closer to the Child. Father noted that he incurred great expense with Mother’s
relocations. With regard to parenting time, Father stated that Mother had
significantly increased his parenting time in 2013 and 2014; however, following
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a disagreement in May 2014 regarding the Child’s summertime activities,
Father voluntarily reduced his parenting time to that set forth in the Agreement.
During the course of the hearing, Father requested primary physical and sole
legal custody of the Child or, in the alternative, to re-affirmed joint physical and
legal custody with the exception that the Child be enrolled in the Avon School
District where he resided. In turn, Mother requested re-affirmance of the
current custody arrangement with the Child remaining in the Zionsville School
District.
[7] Father stated that he and wife, E.T., were expecting a child and that the Child
was excited about having a younger sister. Father indicated that unpleasant
interactions between Mother and E.T. occurred in front of the Child, thus,
causing distress to the Child and E.T. Additionally, Father claimed that
Mother often sent profanity-filled texts and emails to E.T. Additionally, Father
claimed that he was troubled by the Child wetting the bed, and expressing fear
at night while visiting with them. The Child was not exhibiting such behavior
at Mother’s home. Father claimed that he had approached Mother multiple
times about enrolling the Child in counseling, but Mother was not in favor of it.
Despite Mother’s delays, Father placed the Child in counseling sessions.
Father stated that the counselor treated the Child for anxiety as a result of
numerous changes occurring in Father’s life, including his marriage to E.T. and
the birth of his second child due in May 2015.
[8] Father also claimed that Mother abused alcohol. Specifically, Father stated
that on one occasion, he had to make an unplanned trip to the airport to pick
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up the Child since Mother was too intoxicated to drive. In addition, Father
sought to impeach Mother’s credibility by introducing testimony of M.W.,
Mother’s college friend, to testify that Mother had confided in her about the
domestic violence that Mother suffered during her marriage to M.T. According
to M.W., Mother had indicated that domestic violence included M.T. hitting
her, throwing her up against walls like a ragdoll, and sodomizing her with a sex
toy. M.W. testified that on at least two occasions, Mother had fled to her house
after being battered by M.T. M.W. also claimed that M.T. called the Child,
who is biracial, derogatory racial names.
[9] In response to Father’s allegations, Mother denied that there were multiple
incidents of abuse by M.T. Mother admitted that she had sent foul messages to
E.T.; however, she had apologized to E.T. for her behavior. With regard to the
Child’s counseling, Mother indicated that she had not participated in any of the
sessions, but had discussed the sessions with the Child. With regard to being
intoxicated on her flight back to Indianapolis, Mother stated that she only
drank a glass of wine on her flight, and the reason she called Father to pick up
the Child from the airport was because she was headed home to argue with
M.T. about getting a divorce. Mother asked the court to maintain the current
custody arrangement with the Child remaining in the Zionsville School District.
[10] At the close of the evidence, the trial court took the matter under advisement.
On February 18, 2015, the trial court issued its findings of fact and conclusions
thereon granting Father sole legal and physical custody of the Child with
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Mother to have parenting time according to the Indiana Parenting Time
Guidelines.
[11] Mother now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Motion to Continue
[12] Mother first argues that the trial court abused its discretion in denying her
motion to continue. Specifically, Mother contends that the trial court’s denial
of her continuance request was based on Father’s non-compliance with the
discovery of Exhibits on which he relied at the modification hearing. As such,
Mother claims that she was subjected to unfair surprises at trial.
[13] In resolving this issue, we initially note that the decision to grant or deny a
motion for a continuance is within the sound discretion of the trial court.
Litherland v. McDonnell, 796 N.E.2d 1237, 1240 (Ind. Ct. App. 2003), trans.
denied. We will reverse the trial court only for an abuse of that discretion. Id.
“An abuse of discretion may be found on the denial of a motion for a
continuance when the moving party has shown good cause for granting the
motion.” Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d
615, 619 (Ind. Ct. App. 2006), trans. denied; see Trial Rule 53.5. A trial court
abuses its discretion when it reaches a conclusion which is clearly against the
logic and effect of the facts or the reasonable and probable deductions which
may be drawn therefrom. Hess v. Hess, 679 N.E.2d 153, 154 (Ind. Ct. App.
1997). If good cause is shown for granting the motion, denial of a continuance
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will be deemed to be an abuse of discretion. Id. No abuse of discretion will be
found when the moving party has not shown that he was prejudiced by the
denial. Litherland, 796 N.E.2d at 1240.
[14] “There are no mechanical tests for deciding when a denial of a continuance is
so arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request was denied.” J.P. v. G. M., 14 N.E.3d 786,
790 (Ind. Ct. App. 2014).
[15] The record shows that on January 2, 2015, Mother submitted her first set of
interrogatories and requests for production. On January 21, 2015, Father
served his first interrogatories and requests for production on Mother. On
February 3, 2015, Father made some responses to Mother’s requests, but failed
to submit any exhibits that he would present at trial. On the same day, Father
filed a motion to reduce the time Mother had to respond to his discovery
requests. On February 6, 2015, the trial court denied Father’s motion. Because
Father had failed to submit any exhibits, on February 10, 2015, Mother filed a
motion to continue the modification hearing set for February 12, 2015.
Mother’s request was denied and the matter proceeded to trial. At the
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modification hearing, Father introduced eight Exhibits, A through H 1 (A-H).
Mother maintains that she “endured one unfair surprise after another when
Father introduced eight trial exhibits which he never bothered to show Mother
prior to trial . . . .” (Appellant’s Br. p. 17). Mother argues that Father’s
submission of Exhibits A-H was in bad faith, and “in retaliation for learning
that he would not receive Mother’s discovery responses before the
[modification] hearing . . . .” (Appellant’s Br. p. 18).
[16] Mother relies on Stamper v. Hyundai Motor Co., 699 N.E.2d 678, 683, (Ind. Ct.
App. 1998), trans. denied, holding that “[w]here there has been a failure to
comply with discovery procedures, the trial judge is usually in the best position
to determine the dictates of fundamental fairness and whether any resulting
harm can be eliminated or satisfactorily alleviated. Where remedial measures
are warranted, a continuance is usually the proper remedy, but exclusion of
evidence may be appropriate.” While the exclusion of Father’s exhibits at trial
may have been an appropriate remedy for Father’s discovery violation, we find
Mother’s assertions that she was unprepared to rebut the evidence submitted by
Father unpersuasive.
1
We note that Mother does not specifically challenge the admission of Exhibits E through H which were the
Child support worksheets.
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[17] An issue at the modification hearing was the argument that Mother had moved
constantly therefore not providing the Child with a stable home environment.
Father introduced Exhibit A—Mother’s and M.T.’s divorce decree—stating
that “if [Mother] doesn’t refinance the house by May [1, 2015], then the house
is sold.” (Tr. p. 16). Father stated that he had seen a for sale sign outside
Mother’s home, and Mother had expressed to him that she could not afford to
refinance her home and was moving to Westfield, Indiana. Father indicated
that move would be Mother’s sixth move in a span of five years. Mother argues
that “had she known that Father would focus on the property division of [her]
divorce from her second husband in this child custody matter involving her
child from her first marriage, Mother would have collected evidence in
response.” (Appellant’s Br. p. 19). Before admitting Exhibit A, the trial court
stated, “I am having a hard time conceiving prejudice here. It’s her cases [sic]
decree. She is aware of what’s in it [] I’m going to admit it over a timeliness
objection.” (Tr. p. 15).
[18] In her appellate brief, Mother now argues that “[f]or instance, she could have
provided documents showing her ability to refinance her home or her uncle’s
purchase of 1/3 of the equity of her home and payment of 1/3 of the
mortgage.” (Appellant’s Br. p. 19). On direct examination at trial, Mother
acknowledged that in 2014, she had articulated to Father that she could not
afford to refinance her house and she intended to move. Mother indicated that
she had put an offer on a house in Westfield, but the offer fell through.
Nonetheless, Mother stated that she had no plans on moving out of her home
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since she had “a new job and so now I can afford my home.” (Tr. p. 83).
Mother also testified that her uncle had purchased 1/3 equity of her home and
was making mortgage payments. Here, Mother made adequate responses by
disproving Father’s assertion that she was relocating. Accordingly, we find no
prejudice in the trial court’s admission of Exhibit A.
[19] With regards to Exhibit B, Father stated in his petition that Mother had
exposed the Child to domestic violence. In summary, Exhibit B included
M.T.’s arrest record - probable cause affidavit, charging Information, a
subpoena ordering Mother to appear for M.T.’s trial, an order finding Mother
in contempt for failing to appear for M.T.’s trial, a letter by Mother addressed
to the trial court explaining her reasons for failing to appear for M.T.’s trial, and
M.T.’s sentencing order. Exhibits C and D were Chronological Case
Summaries (CCS) relating to M.T.’s domestic violence case against Mother.
The trial court overruled Mother’s objections on the basis of relevance.
[20] Mother does not dispute the domestic violence incident; however, she argues
that she had no knowledge as to the contents of Exhibits B, C, and D, nor did
she have an opportunity to “verify if the documents were accurate.”
(Appellant’s Br. p. 19). As such, Mother claims that she was unable to
adequately defend herself at the hearing. Notwithstanding her claim, Father’s
petition requesting modification of custody put her on notice that the domestic
violence she endured in her second marriage would arise at the modification
hearing. Moreover, Mother was the victim of the domestic violence and was
subpoenaed as a witness.
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[21] In addition, Mother claims that the probable cause affidavit in Exhibit B
contained prejudicial statements. Specifically, Mother complains that the
statement indicating that M.T. “had placed a gun in his mouth and threatened
to shoot himself to get his way” was untrue. (Appellant’s Br. p. 20). As such,
Mother argues that she “could have subpoena[d] witnesses in advance” to
contradict that statement. (Appellant’s Br. p. 20). The record shows that on the
day M.T. abused Mother, Mother’s mother, (Grandmother), was present.
Grandmother was Mother’s witness at the modification hearing, yet Mother did
not question her about the prejudicial statements.
[22] Overall, we conclude that none of the reasons offered by Mother were such that
a continuance was appropriate two days prior to trial. More significant is that
Mother fails to specify how additional time would have enabled her to gather
information that could not have been assembled during her general trial
preparation. Because Mother has the burden of showing that the trial court
abused its discretion by denying her request for a continuance, we will not
presume prejudice where she has provided no particularized information from
which we could conclude that she was indeed prejudiced.
II. Impeachment
[23] Next, Mother contends that Father called her to the stand for the sole purpose
of impeaching her. Procedurally, Ind. Trial Rule 43(B) provides in relevant part
that a party “may call an adverse party . . . and interrogate him by leading
questions and contradict and impeach him in all respects as if he had been
called by the adverse party.” This precept is complemented by Ind. Evidence
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Rule 607, which states that “[t]he credibility of a witness may be attacked by
any party, including the party calling the witness.” However, a party is not
permitted to call a witness for the sole purpose of introducing otherwise
inadmissible evidence under the guise of impeachment. Herron v. State, 10
N.E.3d 552, 556 (Ind. Ct. App. 2014) (citing Appleton v. State, 740 N.E.2d 122,
124 (Ind. 2001)).
[24] As stated previously, Father made several claims against Mother in his petition
to modify custody. Father called Mother to the stand to question her about her
housing situation, the domestic violence she endured, the Child’s schooling,
and parenting time. Prior to Mother’s objection regarding the reading into the
record of certain text messages and emails that Mother and Father had
exchanged, Father asked Mother if she remembered texting Father that she was
moving out of her home in 2014, and Mother answered in the affirmative.
Father then questioned Mother if she had deprived Father of contact with the
Child while she was in her custody. Mother stated that she could not recall
ever doing so. Father sought to impeach Mother by introducing text messages
to impeach Mother’s testimony. At that point, Mother’s counsel objected by
stating that the text messages were not part of discovery. In response, Father’s
counsel stated “I am just asking to impeach your client. She is [in] . . .
possession of the same texts and emails that my client is.” (Tr. p. 102). The
trial court then overruled Mother’s objection. Mother relies on this exchange to
support the argument that she was called merely to be impeached. We
disagree.
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[25] Mother indicated that she could not recall denying Father parenting time, and
Father sought to refresh her memory by showing her the text messages. Mother
then acknowledged that she had on more than one occasion denied Father
contact with the Child. Accordingly, Mother’s assertion that Father called her
to the stand for the sole purpose of impeaching her is inaccurate and not
supported by the record. We therefore conclude that the trial court did not
abuse its discretion by allowing Father to impeach Mother with the text
messages.
III. Hearsay
[26] Also, Mother asserts that the trial court abused its discretion by admitting
certain hearsay statements. Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted. Ind. Evidence Rule 801(c). Generally, hearsay is
not admissible. Evid. R. 802. “Whether a statement is hearsay . . . will most
often hinge on the purpose for which it is offered.” Blount v. State, 22 N.E.3d
559, 565 (Ind. 2014). In this regard, “[o]ut-of court statements that are offered
for a purpose other than to prove the truth of the matter stated are not hearsay.”
Patton v. State, 725 N.E.2d 462, 464 (Ind. Ct. App. 2000).
[27] Even when hearsay evidence is improperly admitted, reversal may not be
predicated upon this erroneous admission of evidence unless the admission is
inconsistent with substantial justice. See Weinberger v. Boyer, 956 N.E.2d 1095,
1104 (Ind. Ct. App. 2011), trans. denied. Therefore, the improper admission of
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evidence is harmless error when the judgment is supported by substantial
independent evidence to satisfy the reviewing court that there is no substantial
likelihood that the questioned evidence contributed to the judgement. D.W.S. v.
L.D.S., 654 N.E.2d 1170, 1173 (Ind. Ct. App. 1995). When a case is tried to the
bench, we presume that the court ignored inadmissible evidence in reaching its
judgment. Estate of Fowler v. Perry, 681 N.E.2d 739, 744 n.2 (Ind. Ct. App.
1997), trans. denied.
[28] Mother directs us to three instances of alleged hearsay: M.W.’s testimony
where she repeated Mother’s statements that M.T. called the Child disparaging
names; the counselor’s testimony stating that the Child had expressed to him
that she was anxious; and Father’s wife’s testimony as to the Child’s statements
during an exchange. Mother maintains that the trial court abused its discretion
in overruling her objections as these statements amounted to inadmissible
hearsay.
[29] During Father’s direct examination of M.W., Father questioned M.W. about
M.T.’s abuse of Mother. At a certain point in the questioning, Father asked
M.W. if she believed the Child “was around the abuse?” (Tr. p. 136). The
contested exchange continues as:
[Father]: Um, what sorts of--can you describe the abuse further
what--what [Mother] said to you?
[M.W.]: Um, it was a lot of verbal abuse. Um, calling her
names, uh, using derogatory terms towards [the Child], uh –
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[Father]: Can you describe what those--what--what did [M.T.]
call [the Child]?
[M.W.] Racially, he called her racially derogatory terms.
[Mother]: Objection calls for hearsay.
(Tr. pp. 136-37). We fail to discern how the above exchange amounts to
hearsay. Although Father invited M.W. to specifically elaborate on the abuse,
M.W. only responded by giving descriptions about the abuse, she did not
respond by giving a statement that could even remotely be characterized as
hearsay.
[30] However, after the questioning continued, Father’s counsel clearly and
explicitly asked M.W. to elaborate as to “what names did [Mother] tell [her], if
any, that [the Child] was called by [M.T.]” (Tr. p. 138). Even though M.W.
responded with explicit statements, Mother’s counsel failed to lodge an
objection. Accordingly, in so far Mother now contests the admissibility of this
statement, her argument is waived. See M.S. v. C.S., 938 N.E.2d 278, 285 (Ind.
Ct. App. 2010) (a party waives appellate review of an issue or argument unless
the party raised that issue or argument before the trial court).
[31] Next, Mother disputes the trial court’s ruling during the counselor’s testimony.
During the testimony, Father asked the counselor “what have you been seeing
[the Child] for?” The counselor responded “Um, for, um, adjusting to her
parent’s being divorced and she’s expressed that being anxious and sometimes--
” (Tr. pp. 145-46). Mother objected on hearsay grounds. The trial court
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overruled, noting “[h]e hasn’t offered any out of court statements. Overruled.
Go Ahead. You are seeing her because she is anxious is what you said, right.”
(Tr. p. 146).
[32] Even if we agree that the counselor made a possible hearsay statement by
recounting the Child’s answers to him, we are mindful that this case was tried
to the trial judge and not to a jury. As we noted, when a case is tried to the
bench, we presume that the court ignored inadmissible evidence in reaching its
judgment. Estate of Fowler, 681 N.E.2d at 743 n.2. This is exactly what the trial
court did in the instant cause. Instead of going through a lengthy questioning to
reach the same result that the Child was treated for anxiety, after sustaining the
objection the trial court rephrased the counselor’s answer without the presumed
hearsay statement.
[33] Lastly, Mother argues that the trial court abused its discretion in admitting
E.T.’s testimony recalling an incident from December of 2014. Specifically,
E.T. and Father dropped off the Child at a local Starbucks so the Child could
visit with Mother. E.T. stated that she and Father walked the Child over to
Mother’s car, and in the presence of the Child, Mother told Father, “tell your
fat cow of a wife to stay in the car[,] she is not welcome by my car. . . . [the
Child] heard that and [the Child] got into the car and [] I walked back to my
car.” (Tr. p. 157). E.T. further testified that the Child “would bring it up the
next time she saw me and ask if [] I was okay. . . .” (Tr. p. 157). At that point,
Mother’s counsel made a hearsay objection. Before Father’s counsel could
respond, the trial court overruled that objection on the ground that E.T.’s
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testimony was “not offered for the truth of the matter asserted.” (Tr. p. 158).
Mother now posits that the “evidence was highly prejudicial to Mother because
it was the only evidence showing [that the Child] actually heard disagreements
between Mother, Father and [E.T.] during exchanges.” (Appellant’s Br. p. 24).
We disagree. The question triggering the objectionable statement focused on
how many times E.T. had met Mother and what her experience was. In her
response, E.T. described the pick-up and how Mother behaved. We agree with
the trial court that the statement was not being offered to prove that the Child
heard the argument between Mother, Father and E.T., but rather to establish
the nature of E.T.’s interactions with Mother. Accordingly, we find no error
and affirm the trial court.
IV. Modification of Custody
A. Standard of Review
[34] In this case, the trial court entered findings of fact and conclusions thereon in its
Order granting Father primary physical and legal custody of the Child.
Pursuant to Indiana Trial Rule 52(A), our court will “not set aside the findings
or judgment unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of witnesses.” D.C. v.
J.A.C., 977 N.E.2d 951, 953 (Ind. 2012). Where, as here, the trial court entered
such findings and conclusions sua sponte, the specific findings control only as to
the issues they cover, and while a general judgment standard applies to any
issue upon which the trial court has not found, we may affirm a general
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judgment on any theory supported by the evidence adduced at trial. Sexton v.
Sedlak, 946 N.E.2d 1177, 1183 (Ind. Ct. App. 2011), trans. denied.
[35] In addition, there is a well-established preference in Indiana “for granting
latitude and deference to our trial judges in family law matters.” Swadner v.
Swadner, 897 N.E.2d 966, 971 (Ind. Ct. App. 2008) (quoting In re Marriage of
Richardson, 622 N.E.2d 178, 178 (Ind. 1993)). “[A]ppellate 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.’” D.C., 977 N.E.2d at 956-57 (quoting Kirk v. Kirk,
770 N.E.2d 304, 307 (Ind. 2002)). Our State’s courts have long emphasized a
concern that there be finality in matters concerning child custody. Baxendale v.
Raich, 878 N.E.2d 1252, 1258 (Ind. 2008). “Modification of custody is an area
committed to the sound discretion of the trial court, and we are constrained to
neither reweigh evidence nor judge the credibility of witnesses.” Jarrell v. Jarrell,
5 N.E.3d 1186, 1190 (Ind. Ct. App. 2014), trans. denied.
B. Findings of Fact
[36] Prior to turning to the main issue - whether the trial court abused its discretion
by awarding Father primary physical and legal custody of the Child - we
address Mother’s contention that several of the trial court’s sua sponte findings
are not supported by the evidence and therefore are clearly erroneous and
should be set aside.
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1. Findings relating to M.T. and the Domestic Violence
[37] Mother contests the following findings relating to M.T.:
12. Notwithstanding the divorce, Father has been to Mother’s
residence and observed [M.T.] present after the divorce. Mother told
the Court that [M.T.] is better and that he does in fact visit the home.
That [M.T.] “is better” is supported by nothing other than Mother’s
self-serving testimony which the Court discounts. That [M.T.]
continues to visit the home even after a criminal case, a conviction and
a divorce is a true fact.
****
15. Mother testified that M.T. committed a single incident of domestic
violence upon her. The Court does not believe her.
16. Additionally, it appears to the Court more likely than not that
Mother’s now ex-husband has made racial slurs about [the Child] and
her father. Father and Mother appear to the court to be of mixed
racial background.
17. Mother did not call M.T. as a witness.
****
25. A friend of Mother’s from college, a person she had kept in close
contact during periods of her relationship with [M.T.] was called to
testify and she testified that Mother confessed to her several instances
of abuse inflicted upon her by [M.T.]. The court found this witness to
be credible. She appeared to be truthful and the court discerns no bias
or interest which would tend to cause her to be untruthful. Her
testimony of what Mother told her that [M.T.] did to her and the
things he said—party opponent admission—were sad and disturbing.
****
46. The impact of domestic violence in this question is difficult.
Mother was the victim. She is not the party who inflicted the domestic
violence. She should not be punished for having an abusive husband
and that is not what the Court is doing.
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47. But Mother keeps him around even now after the divorce and had
be forced under the criminal court’s powers of contempt to testify.
Even now she minimizes the significance of this criminal behavior.
This relationship which she had the right to start, to stay in and pursue
even now is harmful to [the Child]. The court cannot make her leave
her abuser and the Court declines to judge her personal character. It is
troublesome that [M]other would stay with a man who would express
and presumptively think negative things about her daughter’s racial
background.
48. The judgment the Court will make is that the circumstances of
abuse and abusiveness have not been in [the Child’s] best interest . . . .
****
56. Returning to the unpleasant subject of [M.T.] Mother loves her
daughter very much, but contact with [M.T.] is not in [the Child’s]
best interest. It would, the Court finds and concludes, harm [the
Child] emotionally to be in [M.T.’s] presence where he is at risk to
make bigoted statements about her or her father where he is at risk to
abuse her [M]other. If [the Child] witnesses domestic violence or
expressions of cruelty towards her [M]other or hears her Mother’s
erstwhile romantic partner express derogatory racial comments[,] that
will harm [the Child]. Mother in the exercise of her parenting time,
liberal as it is to be, shall not permit [M.T.] to be present during
parenting time.
(Appellant’s App. p. 6, 7, 8, 11, 13). Mother argues that the above findings
“misstate the evidence of domestic violence and are contrary to the trial court’s
declaration” not to punish her for being a victim of domestic violence.
(Appellant’s Br. p. 29).
[38] Turning to the record, although M.W. had lost contact with Mother prior to the
custody modification hearing, M.W. recalled Mother’s narrations of “four to
six” domestic violence incidents while Mother was married to M.T. (Tr. p.
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135). M.W. refuted any contention of there being an isolated event of domestic
violence. Specifically, M.W. testified that in “two to three incidents” Mother
fled her home. (Tr. p. 136). M.W. stated that on one of those occasions,
Mother stayed in a hotel, and in the other two, Mother stayed at M.W.’s
residence. M.W. testified that all three times that Mother had fled her home,
Mother was accompanied by the Child. M.W. also recounted that on one
instance, Mother had informed her that M.T. had raped Mother. Specifically,
M.W. testified that Mother had reported to her that M.T. threw her against the
wall “like a ragdoll” and when Mother fell to floor, she pretended to be
unconscious. (Tr. p. 138). M.W. further stated that, thinking Mother was
unconscious, M.T. used a sex toy to sodomize Mother. M.W. testified that
shortly after the rape incident, Mother lied to M.W. that she was staying with a
friend, but M.W. found out that Mother and M.T. were still living together. In
addition, M.W. testified that she had observed several bruises on Mother. Also,
the trial court heard M.W.’s testimony that M.T. called the Child derogatory
racial names. Furthermore, the trial court believed Father’s testimony that
Mother continued to have M.T. around even after being convicted of domestic
violence.
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[39] Here, the trial court found Father’s and M.W.’s testimony regarding the
domestic violence credible and truthful. 2 We are mindful that the trial court has
the sole discretion to determine the credibility of the witnesses. See Tompa v.
Tompa, 867 N.E.2d 158, 163 (Ind. Ct. App. 2007). Mother’s arguments in this
case consist of her directing our attention to evidence that supports her position
and attempting to discredit the evidence and witnesses 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, 770 N.E.2d at 307
(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, the trial court chose to
accept M.W.’s and Father’s testimony as true. As such, we conclude that the
above findings relating to the domestic violence were not erroneous.
2
Mother notes in her reply brief that Father fails to address each and every finding she challenges. She
correctly notes that failure to respond to an issue raised by an appellant is akin to failure to file a brief, and to
win reversal on such issue, an appellant need only establish prima facie error. Frentz v. State, 875 N.E.2d 453,
463 n. 9 (Ind. Ct. App. 2007), trans. denied. Notwithstanding her claim, we find Father’s responses, however
brief, sufficient to address Mother’s contentions.
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2. Findings Relating to Mother’s Alcohol Abuse
[40] The trial court found that Mother had an alcohol problem. Specifically, it
found:
20. The reason Father had to make an unscheduled trip to the airport
was that Mother had consumed too much alcohol to safely drive and
there was not another driver to transport [the Child].
21. At the hearing, Mother and Grandmother minimized the drinking
during this instance. The Court does not believe them. It was
Mother’s responsibility not to be in a condition which would endanger
[the Child’s] safety as a passenger on the roads. She failed.
****
24. The Court finds more likely than not, Mother has had a problem
with alcohol over the past few years and has contributed to a
destabilized environment at home.
(Appellant’s App. p. 7). Mother argues that the record contains no evidence
that she ever abused alcohol. During the custody modification hearing, Father
testified that in 2014, he smelled alcohol on Mother’s breath during drop-off.
On another occasion, when Father was picking up the Child from Mother’s
house, Grandmother informed him that Mother was “passed out” in bed. (Tr.
p. 59). Lastly, Father testified that in January of 2014, Mother, Grandmother,
and the Child were coming back from vacation. Father indicated that he had to
make an unscheduled trip to the airport to pick up the Child. Father testified
that Mother and Grandmother had been drinking on the flight. Father added
that he expressed his misgivings to Mother about drinking on the flight and
driving home. Father stated that Mother disregarded his concerns by cussing at
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him. Also, Father indicated that Mother had disclosed to him that she was
attending alcoholic anonymous meetings to deal with her alcohol problems.
[41] As noted in the foregoing, appellate courts neither reweigh the evidence nor
reassesses witness credibility, and it views evidence most favorably to the
judgment. See D.C., 977 N.E.2d at 956-57. Here, there was ample evidence
that Mother, at the very least, used alcohol. Accordingly, we conclude that the
above findings are supported by the record, and Mother’s argument to the
contrary is an impermissible invitation for us to reweigh the evidence.
3. Other Findings
[42] Mother also challenges the following findings:
26. [] In general, Mother appears in her demeanor to the [C]ourt to be
temperamental. She appears to the [C]ourt to be prone to vitriol and
stridency.
27. Father appears to the Court to be the more balanced of the two.
28. That is not to say that Mother does not love [the Child]. She does.
Father admits freely that [the Child] loves her Mother. Father’s
concern to the Court and it appears well-taken is that he does not want
[the Child] to model her [M]other’s volatility and manner of dealing
with an abuser—e.g., stay with him and attempt to help him avoid a
conviction when he battered her. 3
3
Mother fails to present any argument why this finding is erroneous. Accordingly, she waives it.
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****
30. Stepmother appears from all the information presented to the
[C]ourt to relate kindly to [the Child]. Stepmother also demonstrates
good judgement when she decided to no longer travel with Father to
pick up or drop off [the Child]. 4
31. Father has been a very involved parent. He appears to the [C]ourt
to be deeply concerned about [the Child’s] welfare.
32. Mother has moved several times since the divorce. She has never
complied with the relocation statute. Father has moved as well each
time to be closer to [the Child] to minimize travel time to exert his
parenting time. He also has not complied with the relocation statute.
His failure is mitigated somewhat by the reactive nature of his moves
and that he has attempted to locate himself closer to [the Child].
Going forward, each party must strictly comply with the relocation
statute.
33. Mother’s moves have resulted in a lot of jumbling of [the Child’s]
preschool. These moves have occurred without any consultation with
Father or input on pre-schooling. But for two years, she attended
Eagle Elementary in Zionsville. Whether she would be able [to]
continue to do so after May of this year is in doubt given the situation
with Mother’s current residence discussed infra.
(Appellant’s App. p. 8, 9, 10, 11).
4
This finding relates to E.T. and how she dialed back her involvement during the exchanges. In her
appellate brief, Mother states, “the statement by the trial court that Father shows wisdom and good
parenting” of the Child is unsupported by the evidence. (Appellant’s Br. p. 39). We note that there is no
such statement in Finding #30, nor can Finding #30 be interpreted as Mother suggests.
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[43] Starting with Finding #26, Mother argues that the trial court’s observation that
Mother is prone to vitriol and stridency is not consistent with Mother’s conduct
in the court room. Mother further argues that the only evidence that was
presented to display her as being spiteful was through Father’s and E.T.’s
testimony. At the modification hearing, Mother admitted that her relationship
with E.T. for the most part was acrimonious. Mother admitted that she disliked
E.T. even before meeting her. On the day Mother met E.T., Mother
approached E.T., introducing herself as Father’s “bitchy ex-wife” and
apologizing for “judging her prior to ever meeting her.” (Tr. p. 163). Also,
Mother admitted that she sent unpleasant text messages to E.T. Lastly,
evidence was presented that Mother acted violently during a drop-off.
Specifically, in December of 2014, Father and E.T. were dropping off the Child
to Mother at a Starbucks. E.T. testified that she walked the Child over to
Mother’s car, but Mother was not pleased at seeing E.T., and in front of the
Child, Mother informed Father to “tell your fat cow of a wife to stay in the car
she is not welcome by my car.” (Tr. p. 157). Based on the evidence presented
at trial, we do not consider Finding #26 to be erroneous.
[44] Finding #27 stated that Father appeared “to be the more balanced of the two.”
(Appellant’s App. p. 8). Mother makes an incoherent argument in relation to
this finding. First, she interprets this finding to mean that the trial court found
that Father was more financially stable than her. Next, Mother argues that
E.T. disliked her and that she convinced Father to file a custody modification.
None of her arguments make sense. Notwithstanding Mother’s arguments, we
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note that there is a correlation between Finding #26 and Finding #27. Finding
#26 talks of Mother’s erratic behavior during exchanges. No evidence was
offered to show that Father was hostile during exchanges, or that he was
unfriendly toward Mother. Finding #27 states that between Mother and
Father, Father appears to be the more balanced of the two. Similarly, we find
no error with this finding.
[45] As for Finding #31, Mother argues that the record contains little information
about Father’s involvement in the Child’s life. Mother further argues that while
Father certainly expressed concern for the Child’s welfare in the courtroom, it
did not coincide with his “inability to meet his child support obligation for [the
Child], his marriage to a woman who immediately became overinvolved in
Mother’s and Father’s parenting issues, and the impending arrival of another
child at the time when his salary was modest and he has $115,000 in student
debt.” (Appellant’s Br. p. 40). Again, Mother fails to make a sound argument.
The record reveals that Father was involved in the Child’s life, and this is
established by him keeping up with his parenting time and enrolling the Child
for counseling. Also, Father moved each time Mother moved in order to
remain close to the Child. Based on the record, we find no error with this
finding.
[46] With Finding #32, the trial court found that both Father and Mother had not
complied with the relocation statute; however, it regarded Father’s failure to
comply with the relocation statute mitigated by the fact that Father only moved
when Mother moved so as to be closer to the Child. Mother’s argument starts
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and ends with, “both parties are equally culpable for their non-compliance with
the statute.” (Appellant’s Br. p. 40). She offers no further discussion how this
finding is erroneous, and she therefore waives her argument.
[47] Finding #33 provided that Mother’s moves resulted in the Child changing
schools, and that Mother failed to consult Father in the school changes.
Mother argues that she was not required to seek Father’s permission in the
school changes. We disagree. We note that the trial court awarded Father and
Mother joint legal custody in 2010. According to Indiana Code section 31-9-2-
67, “joint legal custody” means that the persons awarded joint custody will
share authority and responsibility for the major decisions concerning the child’s
upbringing, including the child’s education, health care, and religious training.
Therefore, Mother’s claim that she was not required to consult Father in the
Child’s schooling is incorrect. Equally, we find no error with this finding.
C. Custody Modification
[48] Turning to Mother’s main contention, we note that we review custody
modifications for an abuse of discretion, with a “preference for granting latitude
and deference to our trial [courts].” Kirk, 770 N.E.2d at 307. We will find an
abuse of discretion if the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Haley v. Haley, 771 N.E.2d 743,
747 (Ind. Ct. App. 2002). We do not reweigh evidence or assess the credibility
of witnesses, and we consider only the evidence most favorable to the trial
court’s decision. Id. The party seeking modification bears the burden of
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proving that the existing custody order should be altered. Id. To warrant
reversal on appeal, the evidence “must positively require the conclusion
contended for by [the] appellant.” Bettencourt v. Ford, 822 N.E.2d 989, 997 (Ind.
Ct. App. 2005).
[49] In order to modify a custody order, the trial court must find that modification
would be in the child’s best interest and that there has been a substantial change
in circumstances since the initial custody order. Ind. Code § 31-17-2-21(a). In
this case, the trial court concluded that it was in the Child’s best interest to
modify custody. In determining a child’s best interest, the trial court must
“consider all relevant factors,” including:
(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.
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(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 . . .
I. C. § 31-17-2-8.
[50] In determining that the custody order of 2010 should be modified, the trial
court focused on the Child having a stable environment. In this case, when
Mother’s and Father’s marriage dissolved, they agreed that they would share
joint legal custody, with Mother having primary custody of the Child. At the
modification hearing, Mother testified that she wanted to continue the current
arrangement. Father’s argument was that it was in the best interest of the Child
that he be awarded sole legal and primary custody.
[51] In a joint custody arrangement, the parents share the authority and
responsibility for the major decisions concerning the child’s upbringing,
including the child’s education, health care, and religious training. Ind. Code §
31-9-2-67. Under such an arrangement, it is critically important that the parents
demonstrate the ability to work together for a common purpose, i.e., the child’s
best interests. At the modification hearing, Father presented evidence that
Mother acted alone on matters affecting the Child. Specifically, Mother
believed that she was not under any obligation to consult Father in their
daughter’s change of schools. The trial court noted that Mother’s actions of
proceeding unilaterally was disrespectful of Father’s role as a legal custodian of
the Child. Unlike Mother, Father had displayed the ability to effectively
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communicate with Mother. Specifically, the trial court found that Father
placed the Child’s interests first. When Father noticed behavioral changes in
the Child when she visited with them, he consulted Mother about enrolling the
Child for counseling. Father proceeded alone only after Mother failed to act on
his concern.
[52] Father testified that Mother’s many moves made the Child switch schools
regularly, and that the Child had no linkage to any home. Father presented
evidence that he owned a home in Avon and will not move from that home.
Based on Mother’s track record, the trial court found that Father would more
likely provide a stable home for the Child. Father also presented evidence that
he was devoted to the Child’s education and wanted the Child to have some
consistency. Although Father wanted the Child to be enrolled in the Avon
School District, where he lived, at the hearing, Father requested the trial court
to have the Child remain in the Zionsville School District for the remainder of
the 2014-2015 school year, thus giving the Child some form of consistency and
regularity.
[53] On the issue of domestic violence, the trial court indicated that it did not wish
to punish Mother for having an abusive husband; however, the trial court noted
that Mother, even after divorcing M.T. in 2014, continued to have him visit her
home. Furthermore, the trial court found it rather disturbing that Mother tried
to diminish the significance of M.T.’s criminal behavior. At trial, Mother
claimed that the domestic violence was an isolated incident, yet evidence was
presented to show that M.T. had battered Mother several times. In addition,
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Mother claimed that the Child did not witness the domestic violence, but M.W.
testified that on at least two occasions, Mother had fled her home while
accompanied by the Child. Evidence was also presented that M.T. had called
the Child derogatory racial names.
[54] In addition, the record shows that there was increased vitriol and stridency
since the last custody order. Mother testified that after the custody order in
2010, the parties had effectively co-parented the Child. However, after Father
remarried in 2014, her relationship with Father deteriorated rapidly. Mother
showed animosity toward Father and E.T. by sending foul text messages.
Mother was also hostile toward Father and E.T. at a parenting-time exchange,
during which she abused E.T. in front of the Child. The record further shows
that when Father filed a petition to modify custody, Mother dialed back contact
with Father.
[55] Mother claims that there was no evidence to indicate that the Child’s needs
were not met under her care, and that Father’s accusations regarding her
frequent “moves, and her alleged alcohol abuse are, at best, exaggerations and,
at worst, falsehoods which show his inappropriate need to criticize Mother
about her parenting.” (Appellant’s Br. p. 47). Mother’s argument, however, is
an invitation to reweigh the evidence and judge the credibility of the witnesses,
which we cannot do. See Haley, 771 N.E.2d at 747. The trial court saw Mother
and Father as witnesses, observed their demeanor, and scrutinized their
testimony as it came from the witness stand. As in Kirk, we are “in a poor
position to look at a cold transcript of the record, and conclude that the trial
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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, 770 N.E.2d at
307. Based upon all of the evidence, we cannot say that the trial court abused
its discretion by finding that a modification was in the Child’s best interests.
Accordingly, we conclude that the trial court did not abuse its discretion by
granting Father’s motion to modify custody.
CONCLUSION
[56] Based on the foregoing, we conclude that the trial court did not abuse its
discretion (1) in denying Mother’s motion for continuance, (2) in admitting
Father’s exhibits, (3) in admitting certain evidence, and (4) in awarding Father
sole legal and primary custody of the Child.
[57] Affirmed.
[58] Altice, J. concurs
[59] Brown, J. concurs in result with separate opinion
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IN THE
COURT OF APPEALS OF INDIANA
In Re: The Marriage of: Court of Appeals Cause No.
06A05-1503-DR-121
Christine Toney,
Appellant-Petitioner,
v.
Edward Thomas,
Appellee-Respondent.
Brown, Judge, concurs in result with separate opinion.
[60] I agree with the majority that the trial court did not abuse its discretion in
granting Father’s motion to modify custody. I write separately regarding
certain testimony of M.W. and E.T.
[61] With respect to M.W.’s testimony, M.W. testified that M.T. called the Child
racially derogatory terms, Father’s counsel asked M.W. what names Mother
had told her the Child was called by M.T., and M.W. answered “[h]e called her
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a mutt and used the N word also.” Transcript at 138. The majority finds that
Mother’s counsel failed to lodge an objection and thus that Mother has waived
her argument regarding this testimony by M.W. Waiver notwithstanding, a
statement is not hearsay if it is a statement by a party-opponent. Ind. Evidence
Rule 801(d)(2) (providing “a statement is not hearsay if . . . [t]he statement is
offered against an opposing party and . . . was made by the party in an
individual . . . capacity . . .”). The statements here attributable to Mother
constitute statements of a party opponent. See Hughes v. State, 508 N.E.2d 1289,
1298 (Ind. Ct. App. 1987) (noting that the alleged hearsay was offered by
Patricia Taylor, who testified that Hughes told her that Hughes’s doctor had
threatened to file child abuse charges against Hughes, and holding that Taylor’s
statement, attributed to Hughes, was not inadmissible as hearsay), reh’g denied,
trans. denied; see also Irmscher Suppliers, Inc. v. Schuler, 909 N.E.2d 1040, 1046
(Ind. Ct. App. 2009) (finding that statements in letters reporting a company
employee’s conclusion that windows were defective were admissible against the
company under Ind. Evidence Rule 801(d)(2)).
[62] With respect to the testimony of E.T. regarding the incident at Starbucks, E.T.
testified that Mother referred to her as a “fat cow” and said she was not
welcome in her car and then specifically testified that the Child “heard that”
and that “any time we had a situation like that, [the Child] would bring it up
the next time she saw me and ask if [] I was okay and be very concerned about,
um, the situation.” Transcript at 157. In response to Mother’s argument that
this evidence is highly prejudicial as it shows the Child heard disagreements
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between Mother, Father, and E.T., the majority finds that “the statement was
not being offered to prove that the Child heard the argument between Mother,
Father and E.T., but rather to establish the nature of E.T.’s interactions with
Mother.” Slip. op. at 17. My reading of E.T.’s testimony about the Child’s
statements to her is that it was offered to show that the Child heard and was
affected by Mother’s comment about E.T. Moreover, the testimony was
elicited by Father at a custody modification hearing, and the court would
consider the impact on the Child of placement with either parent. E.T.’s
testimony about the Child’s statements were offered to show the effect on the
Child and not to show the relationship or interaction between E.T. and Mother.
Nevertheless, even if E.T.’s testimony regarding the Child’s out-of-court
statements were prejudicial to an extent and were admitted in error, any such
error was harmless because substantial independent evidence admitted at the
hearing supports the court’s determination on Father’s motion to modify
custody.
[63] I thus concur in the result that the trial court did not abuse its discretion in
granting Father’s motion to modify custody.
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