Jack Putnick v. Laura (Iles) Putnick (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 22 2020, 8:31 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Kevin J. Moser Leanna K. Weissmann
Kevin Moser Law PLLC Lawrenceburg, Indiana
Fort Mitchell, Kentucky
IN THE
COURT OF APPEALS OF INDIANA
Jack Putnick, May 22, 2020
Appellant-Petitioner, Court of Appeals Case No.
18A-DC-2674
v. Appeal from the Switzerland
Circuit Court
Laura (Iles) Putnick, The Honorable W. Gregory Coy,
Appellee-Respondent Judge
Trial Court Cause No.
78C01-1709-DC-242
Crone, Judge.
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Case Summary
[1] The trial court entered an order dissolving the marriage between Jack Putnick
(Husband) and Laura (Iles) Putnick (Wife). Husband appeals the court’s
decision to grant primary physical custody of the parties’ minor son, J.P., to
Wife, and its order that he pay $750 of Wife’s attorney’s fees, arguing that those
decisions were clearly erroneous and/or an abuse of discretion. We disagree
and therefore affirm.
Facts and Procedural History
[2] Husband and Wife married in April 2004. One child, J.P., was born of the
marriage in November 2012. The parties separated in July 2017 when Wife left
the marital home and moved with J.P. to northern Kentucky. Husband filed a
petition for dissolution of marriage in September 2017 that came before the trial
court for final hearing on August 8, 2018. Thereafter, the trial court entered its
dissolution decree with specific findings of fact that provided in relevant part as
follows: 1
8. Husband lives at the marital residence; the residence is located
on property that had been in Husband’s family for some time.
9. Husband and Wife lived at the marital residence for twelve
years.
1
Where appropriate, we replace any reference to the parties’ and the minor child’s names with the
aforementioned designations.
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10. Husband testified that Wife left [with J.P.] on July 3, 2017,
and that it was several days before he found out where she was.
11. He also testified that Wife has moved at least twice
subsequently thereafter without notifying him of when and where
she intended to move.
….
13. Wife moved … to her current [northern Kentucky] residence
on Banklick Street.
14. Husband works at Autozone [making gross income of
approximately $56,000 per year] and sets his own schedule; he
has other store managers that can cover for him in the event he
gains custody and would need to be away from the store.
15. If Husband gains custody, J.P. will attend school at Rising
Sun Elementary.
16. Husband’s mother would also be available to care for J.P. in
the event he needed coverage; his sister would as well.
17. Husband does not intend to move from [the marital]
residence in the near future and posits that J.P. would likely
graduate from Rising Sun.
18. As for J.P.’s best interests, Husband points to his stability,
security, and to the fact that the home he is in now is where J.P.
has lived since birth other than for the time of separation, and
will continue to do so.
19. Wife testified that where she lives now is her “forever home”
and that it is a stable home environment for J.P.; she resides
there with a Mr. Tomlinson who pays some of the costs of living.
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20. Wife is disabled and receives $1245 per month due to a
debilitating back injury.
….
22. Wife has had custody of her grandson [A] since he was born;
he and J.P. think of one another as brothers.
23. The boys each have their own rooms and three acres to play
on.
….
26. Wife also testified that J.P. will be attending Florence
Elementary and that it is within minutes of where she lives.
….
28. As to the custody of the child, the court is required to
consider the factors set forth in I.C. § 31-17-2-8.
29. As to the age and sex of the child, the court finds that the
child is five (5) years old and has resided primarily with his
mother since the date of separation; and that she has been the
primary caregiver for the child since birth; whereas Husband has
been the primary wage earner for the family during that time.
30. As to the wishes of the parents, each seeks joint legal custody
with primary physical custody.
31. The wishes of the child are not considered due to his tender
age.
32. The child’s interaction with his parents is unknown but
based on the testimony, the court finds that each parent has an
outstanding relationship with the child.
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33. The child’s adjustment to the home is unknown; he is just
starting kindergarten.
34. All parties are in good mental health; the only physical issue
is Wife’s disability but the court finds that to be a [nonfactor] in
deciding custody.
35. There has been no physical violence between the parents.
Appealed Order at 2-3. Based on the foregoing, the trial court concluded that it
was in J.P.’s best interests that the parties be granted joint legal custody with
Wife having primary physical custody. Husband was granted parenting time in
accordance with the Indiana Parenting Time Guidelines and was ordered to
pay $129 per week in child support. Husband was further ordered to pay Wife’s
attorney $750 in fees within sixty days of the court’s decree.
[3] Husband filed a motion to correct error, which was deemed denied on October
25, 2018. He filed a notice of appeal on November 9, 2018. However, the trial
court clerk thereafter failed to timely file a notice of completion of clerk’s
record. Because Husband never sought an order compelling such completion
pursuant to Indiana Appellate Rule 10(F), this Court dismissed the appeal with
prejudice on August 26, 2019. Husband filed an amended appellate motion to
correct error on October 1, 2019, requesting that the appeal be reinstated. Our
motions panel granted Husband’s motion and reinstated the appeal. Wife filed
a motion to dismiss the reinstated appeal, which was subsequently denied by
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the motions panel, and the parties proceeded to file their respective briefs
herein. 2 We will provide additional facts as necessary.
Discussion and Decision
Section 1 – The trial court neither abused its discretion nor
clearly erred in granting Wife primary physical custody of J.P.
[4] Husband challenges the trial court’s physical custody determination. Our
standard of review of initial child custody determinations is well settled.
Determinations regarding child custody fall within the trial court’s sound
discretion. Swadner v. Swadner, 897 N.E.2d 966, 973 (Ind. Ct. App. 2008). In
an initial custody determination, both parents are presumed equally entitled to
custody. Hamilton v. Hamilton, 103 N.E.3d 690, 694 (Ind. Ct. App. 2018), trans.
2
Wife urges us to reconsider the ruling of our motions panel and dismiss this appeal for Husband’s failure to
timely file a motion to compel completion of the trial court clerk’s record pursuant to our appellate rules.
Specifically, Indiana Appellate Rule 10(F) requires that, in the event the trial court clerk “fails to issue, file,
and serve a timely Notice of Completion of Clerk’s Record,” an appellant shall seek an order from this Court
compelling the clerk to complete the record and file such notice. Failure to do so subjects the appellant’s
appeal to dismissal. Ind. Appellate Rule 10(F). As noted above, Husband’s appeal was originally dismissed
due to his failure to timely file a motion to compel pursuant to Rule 10(F).
In his amended motion to correct error, Husband provided detail regarding his communications with the trial
court clerk, her purported backlog, and his belief that the record would be completed timely. He explained
that his failure to seek a motion to compel when the record was not, in fact, completed, was simply due to
inadvertence as opposed to a willful disregard of the appellate rules. Wife suggests that Husband’s claim of
inadvertence is insufficient to justify reinstatement of his appeal. However, Wife made this argument to the
motions panel, and the panel rejected it. See Order on Wife’s Motion to Dismiss, Cause No. 18A-DC–2674
(Ind. Ct. App. Mar. 2, 2020). We acknowledge that the writing panel has the inherent authority to
reconsider any decision of the motions panel while an appeal remains pending. Milbank Ins. Co. v. Indiana Ins.
Co., 56 N.E.3d 1222, 1226 (Ind. Ct. App. 2016). But, we generally do so only where a more complete record
reveals clear authority establishing that the motions panel ruling was in error. Id. That is not the case here.
We do not minimize Husband’s neglect in failing to follow up with the trial court, and we agree with Wife
that cases involving children ideally should be resolved swiftly and without delay. Still, given our long-
standing preference for deciding cases on the merits, see id., and given that the motions panel reinstated the
appeal and the parties have now fully briefed this case, we proceed to consider the merits of the parties’
arguments.
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denied. The trial court shall determine custody and enter a custody order in
accordance with the best interests of the child by considering 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.
(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.
Ind. Code § 31-17-2-8. In deference to the trial court’s proximity to the issues,
we do not reweigh the evidence or determine the credibility of witnesses.
Hughes v. Rogusta, 830 N.E.2d 898, 902 (Ind. Ct. App. 2005). Instead, we
consider the evidence most favorable to the judgment, with all reasonable
inferences drawn in favor of the judgment. Id. We will affirm the trial court’s
custody determination absent an abuse of discretion. Swadner, 897 N.E.2d at
973.
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[5] The trial court here entered specific findings of fact to support its custody
determination. Therefore, upon review, first we determine whether the
evidence supports the court’s findings, and second, we determine whether the
findings support the judgment. Lechien v. Wren, 950 N.E.2d 838, 841 (Ind. Ct.
App. 2011). We will set aside the trial court’s specific findings only if they are
clearly erroneous, that is, when there are no facts or inferences drawn therefrom
to support them. Id. A judgment is clearly erroneous when a review of the
record leaves us with a firm conviction that a mistake has been made. Id.
[6] Husband concedes that the trial court considered the required statutory factors
in making its custody determination. Indeed, the trial court found that the
evidence indicated that the parties each had an outstanding relationship with
J.P. and that they were relatively equal with regard to each of the statutory
factors. However, in determining that five-year-old J.P.’s interests would best
be served in the primary physical custody of Wife, the court considered
evidence that Wife had been J.P.’s primary caregiver since birth, and that Wife
has custody of her grandson of similar age, with whom J.P. shares a sibling-like
relationship.
[7] Husband first complains that, in giving weight to this evidence, the court
improperly presumed that Wife, as a mother, is better suited to have primary
physical custody and that Husband is being punished for filling the traditional
role of being the breadwinner during the marriage. We disagree with
Husband’s contention that the trial court engaged in improper presumptions or
punishment, and we remind him that, in considering child custody, trial courts
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are “often called upon to make Solomon-like decisions in complex and sensitive
matters.” Pawlik v. Pawlik, 823 N.E.2d 328, 329-30 (Ind. Ct. App. 2005)
(citation omitted), trans. denied. Where, as in this case, each parent seeks sole
primary physical custody of a child, the trial court must weigh the evidence and
make a choice in the best interests of the child. The court did so here and
determined that the evidence weighed in Wife’s favor. The value of the trial
court’s close proximity to the parties and the issues in child custody cases
cannot be overstated, see id., and we are mindful that the trial court was in a
better position than we are to make a decision on the merits. Id. Husband
effectively invites us to reweigh the evidence as to J.P.’s best interests, which we
will not do. See id. (emphasizing that this Court will not reweigh evidence
when reviewing trial court’s custody determination).
[8] Husband further asserts that, in addition to unjustifiably favoring Wife in its
best interests analysis, the trial court abused its discretion and clearly erred in
failing to consider Wife’s “misconduct, interference with [Husband’s]
relationship with [J.P.], and lack of communication” in making its custody
determination. Appellant’s Br. at 11. However, Wife’s testimony
unequivocally contradicted Husband’s version of events and characterization of
her behavior (she testified Husband was fully aware that she was leaving him,
that they communicate regularly, and that she does not interfere with the father-
son relationship), and it was the trial court’s prerogative to weigh the evidence
and assess credibility. Indeed, although insisting that Wife’s testimony was
evasive and dishonest, Husband concedes that only the trial court, in observing
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live testimony, can capture the “nuance[s] of an exchange.” Id. at 12 n.2.
Again, Husband effectively invites us to reweigh the evidence, and we will not.
[9] Regarding the trial court’s findings of fact, Husband specifically challenges only
finding number 33, that “the child’s adjustment to the home is unknown; he is
just starting kindergarten.” Appealed Order at 3. Husband claims that this
finding is clearly erroneous because “it is not possible to find that a child is not
adjusted to [Husband’s] residence where he lived … for the first four or five
years of life ….” Appellant’s Br. at 16. While perhaps not as detailed as it
could have been, we understand this finding to simply be an acknowledgement
by the trial court that, due to J.P.’s young age and adaptability, his adjustment
to his former primary residence when compared to his new primary residence
was not a factor that weighed in favor of either party. This finding is not clearly
erroneous. Moreover, as Husband does not specifically challenge the
remaining findings of fact, we accept them as true. McMaster v. McMaster, 681
N.E.2d 744, 747 (Ind. Ct. App. 1997).
[10] In sum, the evidence and reasonable inferences support the trial court’s findings
and its ultimate conclusion that it is in J.P.’s best interests that Wife be granted
primary physical custody, and our review of the record does not leaves us with
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a firm conviction that a mistake has been made. The trial court’s custody order
is neither clearly erroneous nor an abuse of discretion. 3
Section 2 – The trial court did not abuse its discretion in
awarding Wife $750 in attorney’s fees.
[11] Husband also challenges the trial court’s order that he pay $750 of Wife’s
attorney’s fees. A court may order a party to pay “a reasonable amount ... to
the other party” for attorney’s fees associated with a dissolution action. Ind.
Code § 31-15-10-1(a). The court has broad discretion in deciding whether to
award attorney’s fees, and we will reverse its decision only upon a showing of
an abuse of discretion. Whited v. Whited, 859 N.E.2d 657, 665 (Ind. 2007).
That is to say, we will reverse such an award only if it “is clearly against the
logic and effect of the facts and circumstances before the court.” Mason v.
Mason, 775 N.E.2d 706, 711 (Ind. Ct. App. 2002), trans. denied (2003).
[12] Here, Wife requested $1000 in fees and the trial court awarded $750. Husband
suggests that the trial court did so “without justification or reasoning.”
Appellant’s Br. at 18. First, “the trial court need not give its reasons for its
decision to award attorney’s fees.” Bessolo v. Rosario, 966 N.E.2d 725, 733 (Ind.
3
Husband briefly suggests that, aside from the physical custody issue, an order of joint legal custody is not in
J.P.’s best interests due to Wife’s alleged failures to effectively communicate with Husband. We note that the
parties specifically requested joint legal custody, and it is well settled that a trial court shall consider it a
matter of primary importance that the persons awarded joint custody have agreed to an award of joint legal
custody. Julie C. v. Andrew C., 924 N.E.2d 1249, 1259 (Ind. Ct. App. 2010). Besides, we will reverse an
award of joint legal custody only when the evidence indicates “a clear abuse of trial court discretion in that
the joint custody award constitutes an imposition of an intolerable situation upon two persons who have
made child rearing a battleground.” Swadner, 897 N.E.2d at 974 (citation omitted). The evidence reflects no
such imposition here.
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Ct. App. 2012), trans. denied. “In determining whether to award attorney’s fees
in a dissolution proceeding, trial courts should consider the parties’ resources,
their economic condition, their ability to engage in gainful employment and
earn income, and other factors bearing on the reasonableness of the award.”
Eads v. Eads, 114 N.E.3d 868, 879 (Ind. Ct. App. 2018). The trial court here
specifically considered the parties’ respective abilities to engage in gainful
employment and earn income and found that Husband earns more than
$50,000 per year in income, while Wife is unable to work and collects only
$1245 per month in disability. This evidence of the parties’ economic condition
and their respective abilities to engage in gainful employment more than
justifies the trial court’s decision to award Wife a portion of her attorney’s fees.
[13] Husband maintains that the trial court abused its discretion in again failing to
consider Wife’s alleged misconduct (“abscond[ing]” with J.P., “concealing” his
whereabouts, and now “ransoming” him) in awarding fees. Appellant’s Br. at
19-20. Husband is correct that any misconduct on the part of a party that
directly results in the other party incurring additional fees may be taken into
consideration. See Bessolo, 966 N.E.2d at 733. However, as discussed above, the
trial court clearly did not agree with Husband’s characterization of Wife’s
behavior, and we will not reweigh the evidence or reassess witness credibility
on this issue. We find no abuse of discretion. The judgment of the trial court is
affirmed in all respects.
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[14] Affirmed.
Bailey, J., and Altice, J., concur.
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