Dennis L. Mink v. Elizabeth M. Kistner (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 19 2019, 10:26 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT APPELLEE PRO SE
Mark Small Elizabeth M. Kistner
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dennis L. Mink, June 19, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-JP-2773
v. Appeal from the Marion Circuit
Court
Elizabeth M. Kistner, The Honorable Tamara L. Rogers,
Appellee-Respondent. Magistrate
Trial Court Cause No.
49C01-1405-JP-14790
Najam, Judge.
Statement of the Case
[1] Dennis Mink (“Father”) appeals the trial court’s order awarding physical
custody of M.L.A.M (“Child”) to Elizabeth Kistner (“Mother”). Father
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presents a single issue for our review, namely, whether the trial court abused its
discretion when it awarded custody of Child to Mother. We affirm.
Facts and Procedural History
[2] Mother and Father were in a romantic relationship and lived together beginning
in 2008. Mother gave birth to Child, out of wedlock, on August 28, 2010. In
2014, Father filed a petition to establish paternity of Child, custody, and child
support. In 2015, Mother and Child moved to Mother’s mother’s house, but
Mother got back together with Father for a short time before ending the
relationship permanently in 2017. Mother and Child returned to live with
Mother’s mother. Following the parties’ failed efforts at mediation, the trial
court held a final hearing on July 18, 2018. On October 18, the trial court
entered an order awarding Mother primary physical custody subject to
parenting time for Father, granting legal custody of Child to Mother, and
ordering Father to pay child support. This appeal ensued.
Discussion and Decision
[3] Initially, we note that Mother’s appellee’s brief does not comply with our
Appellate Rules. Mother’s brief is merely a recitation of her version of the facts
relevant to the trial court’s custody determination. It is well settled that we will
not consider a party’s assertions on appeal when she has failed to present cogent
argument supported by authority and references to the record as required by the
rules. See Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). If we
were to address such arguments, we would be forced to abdicate our role as an
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impartial tribunal and would instead become an advocate for one of the parties.
Id. This, clearly, we cannot do. Id. Accordingly, we proceed as if Mother did
not file an appellee’s brief.
[4] When an appellee does not file a brief, we do not need to develop an argument
for her, and we apply a less stringent standard of review. In re Guardianship of
R.M.M., 901 N.E.2d 586, 588 (Ind. Ct. App. 2009). We may reverse the trial
court if the appellant is able to establish prima facie error, which is error at first
sight, on first appearance, or on the face of it. Id. The appellee’s failure to
submit a brief, however, does not relieve us of our obligation to correctly apply
the law to the facts in the record in order to determine whether reversal is
required. Khaja v. Khan, 902 N.E.2d 857, 868 (Ind. Ct. App. 2009). Where an
appellant is unable to meet that burden, we will affirm. Blair v. Emmert, 495
N.E.2d 769, 771 (Ind. Ct. App. 1986).
[5] The trial court entered an Amended Final Order, which sua sponte included
extensive and detailed findings of fact and conclusions thereon. In this
situation, “the specific findings control our review and the judgment only as to
the issues those specific findings cover. Where there are no specific findings, a
general judgment standard applies and we may affirm on any legal theory
supported by the evidence adduced at trial.” Trust No. 6011, Lake Cty. Trust Co.
v. Heil’s Haven Cond. Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind. Ct. App. 2012).
Our standard of review of initial child custody determinations is well-settled:
In deference to the trial court’s proximity to the issues . . . [w]e
do not reweigh the evidence or determine the credibility of
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witnesses. Instead, we consider the evidence most favorable to
the judgment, with all reasonable inferences drawn in favor of
the judgment. Finally, because the trial court was making an
initial custody determination, it was required to consider all
evidence from the time of Child’s birth in determining the
custody arrangement that would be in the best interest of Child.
Hughes v. Rogusta, 830 N.E.2d 898, 902 (Ind. Ct. App. 2005).
[6] Indiana Code Section 31-14-13-2 (2018) provides that, in a paternity action,
[t]he court shall determine custody in accordance with the best
interests of the child. In determining the child’s best interests,
there is not a presumption favoring either parent. The court shall
consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child’s 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 parents;
(B) the child’s siblings; and
(C) any other person who may significantly affect the
child’s best interest.
(5) The child’s adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
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(7) Evidence of a pattern of domestic or family violence by either
parent. . . .
[7] Here, the trial court carefully considered each statutory factor. The court found
that Child was eight-years-old and had told the custody evaluator that she
wanted “Mother and Father and her to reside [together] in Father’s residence.”
Appellant’s App. Vol. 2 at 35. The court noted that “Mother and Father do not
reside together[,] so the child’s preference cannot occur at this time.” Id. The
court also found as follows:
• the parties are extremely hostile and volatile towards each
other[,] which is not in [C]hild’s best interest
• [both parties] and [C]hild have positive interactions and
interrelationships
• [neither parent was] in a relationship at the time of [the]
final hearing
• [Child] is well-adjusted to [both Mother’s and Father’s]
home and community
• Based on the totality of the evidence, it is in the best
interests of [C]hild to grant Mother primary physical
custody of [C]hild, specifically, Mother has had primary
physical custody of [C]hild by the court order since 2016,
Mother has had primary physical custody of [C]hild
whenever she and Father broke up, [C]hild is well-adjusted
and performing well at her current school, [C]hild has
friends, and she is a happy child.
Appellant’s App. Vol. 2 at 32-36.
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[8] Father contends that the trial court abused its discretion when it awarded
physical custody of Child to Mother. Father maintains that: it was clear error
for the trial court to not consider Child’s wishes; the court should have adopted
the opinion of the custody evaluator, who recommended that Father have
physical custody of Child; the court’s finding that Mother has a new job
“seem[s] unsupported by the evidence”; and the court “gave little consideration
to Mother’s patterns of behavior in social relationships.” Appellant’s Br. at 14-
15.
[9] First, the trial court stated, correctly, that because Child was not at least
fourteen years of age she was too young “to strongly consider her wishes
regarding custody or parenting time.” Appellant’s App. Vol. 2 at 32. Still, the
court acknowledged Child’s wish regarding custody, that she and her parents
live together in Father’s residence, which the court was obliged to reject. Id. at
35. Second, the trial court had discretion to reject the custody evaluator’s
opinion. See Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct. App. 2000). And,
finally, the remainder of Father’s contentions on appeal amount to a request
that we reweigh the evidence, which we cannot do. Father has not shown that
the trial court abused its discretion when it awarded physical custody of Child
to Mother.
[10] Affirmed.
Baker, J., and Robb, J., concur.
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