Opinion
23A-DC-2961
11-01-2024
Fred E. Queen, Appellant-Respondent v. Mellisa K. Queen, Appellee-Petitioner
ATTORNEY FOR APPELLANT Brandon C. Elkins-Barkley Cross Glazier Reed Burroughs, P.C. Carmel, Indiana ATTORNEY FOR APPELLEE Rachelle N. Ponist Harshman, Ponist, Smith &Rayl Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable Lori K. Morgan, Judge Trial Court Cause No. 02D08-1912-DC-001493
ATTORNEY FOR APPELLANT Brandon C. Elkins-Barkley Cross Glazier Reed Burroughs, P.C. Carmel, Indiana
ATTORNEY FOR APPELLEE Rachelle N. Ponist Harshman, Ponist, Smith &Rayl Indianapolis, Indiana
MEMORANDUM DECISION
FELIX, JUDGE
Statement of the Case
[¶1] Fred Queen ("Father") and Mellisa Queen ("Mother") are the parents of three children (the "Children") and have been divorced since September 2020. In their mediated marital settlement agreement, the parties agreed to have joint legal and physical custody of the Children, with Father having more parenting time than Mother. Subsequently, Mother filed a petition to modify custody and parenting time, based in large part on the parties' inability to agree on major decisions for the Children. The trial court granted Mother's petition, awarding her sole legal custody and more evenly distributing parenting time between the parties. The trial court also awarded Mother attorneys' fees related to her petition. Father now appeals and presents two issues for our review:
1. Whether the trial court clearly erred by modifying custody and parenting time; and
2. Whether the trial court abused its discretion by awarding Mother attorneys' fees.
[¶2] We affirm.
Facts and Procedural History
[¶3] The Children were born in 2009, 2010, and 2013. Before the divorce in 2020, the parties' oldest child was diagnosed with autism, and their middle child was diagnosed with ADHD. On September 8, 2020, the parties entered into a Mediated Marital Settlement Agreement (the "Agreement"), which the dissolution court approved and incorporated into the divorce decree. In the Agreement, the parties agreed to joint legal and physical custody of the Children and set forth a parenting time schedule that split the parenting time slightly unequally: Father had the Children for 209 overnights (or 57% of the time), and Mother had the Children for 156 overnights (or 43% of the time).
[¶4] On March 15, 2021, Mother filed a Motion for Modification of Child Custody, Parenting Time and Child Support. This motion led to a slew of other filings by both parties, including requests for attorneys' fees. The trial court held several evidentiary hearings on all pending matters, and on December 5, 2023, it issued its order granting Mother's modification and attorneys' fees requests. Among other things, the trial court granted Mother sole legal custody of the Children, modified parenting time to be equally divided between the parties, and awarded Mother $48,000 in attorneys' fees.
[¶5] In support of its custody and parenting time modifications, the trial court found that "since the parties' marriage has been dissolved, they have not been able to agree on religion, medical and educational decisions including medication and treatment decisions for" the Children, but especially for the older two children. Appellant's App. Vol. II at 34. The trial court found that the parties' "inability to communicate is not good for the children," id. at 58, and that "their inability to agree has resulted in delays in some of the services that could be provided to the child(ren) including services for [the oldest child]'s autism," id. at 34.
[¶6] For example, the trial court found that the parties disagreed about the middle child's medication regimen and the oldest child's dentist, medication regimen, Medicaid waiver, participation in music therapy, participation in an autism skills class, level of participation in Applied Behavioral Analysis therapy, and participation and attendance at school as compared to participation in out-ofschool therapy. The parties also disagreed about whether to raise the Children in the Baptist or Catholic faiths and which schools the Children should attend.
[¶7] Based on these findings, among others, the trial court found that
the parties are neither willing nor able to communicate and cooperate in advancing their children's welfare.... Parenting of the children has become a battleground and, unfortunately, the children are in the middle of the battle. Given the level of discord caused by the parties' inability to communicate and cooperate with regard to matters pertaining to the children, the Court finds that the entry of an order continuing the award of joint legal custody is not in the children's best interests.Appellant's App. Vol. II at 62. The trial court also determined that a substantial change in circumstances had occurred since the dissolution decree that warranted a change in custody, namely the parties' inability to co-parent. From the testimony of the custody evaluator and Father, the trial court determined that the Children had expressed a desire to spend more time with Mother and to spend equal time with both parents; based in part on this determination, the trial court further found that an equal division of parenting time was in the Children's best interests.
[¶8] Regarding attorneys' fees, the trial court found in relevant part as follows:
154. At the time of the trial in this case, [Mother] earned, or was capable of earning, gross weekly income in the approximate sum of $336.00. [Father] earned, or was capable of earning, gross weekly income in the approximate sum of $1,250.00 which was approximately three (3) times [Mother]'s gross weekly income. In considering the parties' economic circumstances and their ability to engage in gainful employment and earn adequate income, the Court finds that [Father] is in a far superior position to [Mother]. [Mother] did testify that she receives some financial assistance with the payment of her attorney fees from her significant other and/or third parties.
155. [Father] contends that [Mother] could have presented her case more efficiently, and that as a result of her alleged failure to do so, a number of trial days were required which he alleges may not have otherwise been required.
* * *
157.... [T]he Court finds that neither party substantially prevailed in these proceedings. The Court has not found that either party knowingly or intentionally violated an order granting or denying parenting time rights. The Court does not find that [Father] substantially prevailed and that the actions filed were frivolous or vexatious.
158. Upon review and consideration of the relevant statutory provisions that address the entry of attorney fee awards, the Court finds . . . that the entry of an order requiring [Father] to pay a portion of [Mother]'s attorney fees in light of the economic disparity between the parties and other relevant factors is appropriate.Appellant's App. Vol. II at 76-77. Based on these findings, among others, the trial court granted Mother's request for attorneys' fees and ordered Father to pay "the sum of $48,000.00 for attorney fees, costs and expenses incurred in this action." Id. at 81.
Father does not support several statements of fact with citations to the record, Appellant's Br. at 11-13, 15, as is required by Indiana Appellate Rule 46(A)(8)(a). Three of these unsupported statements are followed by parentheticals indicating the need for record citations: "(Need citation)," Appellant's Br. at 11; "(Need citation)," id. at 12; and "(Need citation to facts)," id. at 13. Father's brief appears to be unfinished, as demonstrated by the following two excerpts: (1) "Include reference to I.C. 31-17-2-21(c) . . .," id. at 11; and (2) "Include rule for how evidence of attorney fees are to be provided to the trial court - as an affidavit or testimony - I presume this would have to be provided during the taking of evidence," id. at 17. We also remind counsel that the Statement of Facts must be "devoid of argument." Dridi v. Cole Kline LLC, 172 N.E.3d 361, 365 (Ind.Ct.App. 2021) (citing Ramsey v. Review Bd. of Ind. Dep't of Workforce Dev., 789 N.E.2d 486, 488 (Ind.Ct.App. 2003)). Despite these issues, Father's noncompliance with Appellate Rule 46 does not substantially impede our review of his claims, so we choose to address their merits. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).
Discussion and Decision
1. The Trial Court Did Not Clearly Err by Modifying Custody and Parenting Time
[¶10] Father argues that the trial court erred by modifying legal custody and parenting time. The trial court here entered findings and conclusions pursuant to Indiana Trial Rule 52, so we will "not set aside the findings or judgment unless clearly erroneous," and we will give "due regard . . . to the opportunity of the trial court to judge the credibility of the witnesses," Ind. Trial Rule 52(A). "Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them." Steele-Giri v. Steele, 51 N.E.3d 119, 125 (Ind. 2016) (quoting In re Paternity of Winkler, 725 N.E.2d 124, 126 (Ind.Ct.App. 2000)).
[¶11] Our review is also guided by the following considerations unique to family law cases:
[T]here is a well-established preference in Indiana "for granting latitude and deference to our trial judges in family law matters." In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993). 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." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). "On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal." Id. "Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment." Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted).Steele-Giri, 51 N.E.3d at 124. Furthermore, we accept as true any findings not challenged on appeal. See R.M. v. Ind. Dep't of Child Servs., 203 N.E.3d 559, 564 (Ind.Ct.App. 2023) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)).
a. The Trial Court Did Not Clearly Err by Modifying Legal Custody of the Children
[¶12] First, Father contends that there was insufficient evidence to support the trial court's modification of legal custody from joint legal custody to Mother having sole legal custody. Indiana Code section 31-17-2-21 provides that a trial court "may not modify a child custody order unless: (1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under [Indiana Code section 3117-2-8]." Indiana Code section 31-17-2-8 provides that the trial court is to consider the best interests of the children, all relevant factors, and nine specifically enumerated factors which include, as is relevant for this case, the parents' wishes.
[¶13] Where, as here, the trial court must determine whether joint legal custody is appropriate, it must also consider the parents' "willingness and ability to communicate and cooperate in advancing the child's welfare." Pilkington v. Pilkington, 227 N.E.3d 885 (Ind.Ct.App. 2024) (citing Milcherska v. Hoerstman, 56 N.E.3d 634, 641 (Ind.Ct.App. 2016)), trans. not sought. In other words, "the trial court decides 'whether the parents have the ability to work together for the best interests of their children.'" Id. (quoting Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind.Ct.App. 2004)). "[I]f the parties have made child-rearing a battleground, then joint custody is not appropriate." Id. (quoting Periquet-Febres v. Febres, 659 N.E.2d 602, 605 (Ind.Ct.App. 1995), trans. denied).
[¶14] Father specifically claims that "contrary to the trial court's conclusion, the parties have not turned child rearing into a battleground." Appellant's Br. at 12. We first note that Father has not expressly challenged any of the trial court's findings supporting its conclusion that "co-parenting has become a battleground for control," Appellant's App. Vol. II at 66; in fact, Father does not expressly challenge any of the trial court's findings, so we take them all as true, see R.M., 203 N.E.3d at 564 (citing Madlem, 592 N.E.2d at 687). Even if we consider Father's arguments to implicitly challenge certain of the trial court's findings, we observe that Father supports his claims by highlighting evidence he believes contradicts those findings. Thus, Father's arguments are merely requests for us to reweigh the evidence and reassess witness credibility, which we cannot do, see Steele-Giri, 51 N.E.3d at 124 (quoting Best, 941 N.E.2d at 502).
[¶15] Nonetheless, the evidence supporting the trial court's conclusion clearly shows that the parties are unwilling or unable to work with each other for the best interests of the Children. Mother and Father cannot agree on major medical decisions for the Children, such as medications and therapies, and they cannot agree on major religious and educational decisions for the Children, such as what faith to raise the Children in and what schools they should attend. Based on the foregoing, we cannot say the trial court clearly erred by concluding that modifying legal custody was in the Children's best interests and that there had been a substantial change in one of the Indiana Code section 31-17-2-8 factors.
b. The Trial Court Did Not Clearly Err by Modifying Parenting Time
[¶16] Second, Father argues that the trial court erred by modifying parenting time. "The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child." I.C. § 3117-4-2. Contrary to Father's argument on appeal, the trial court was not required to find there was a substantial change in circumstances in order to modify parenting time; the trial court only needed to determine that a modification of parenting time was in the Children's best interests, see id.; Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013) (quoting Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind.Ct.App. 1998), trans. denied).
[¶17] Here, the trial court found that Father had previously been granted parenting time in excess of an equal split, the Children had expressed a desire to spend more time with Mother, and the Children wanted to spend an equal amount of time with both parents. Consequently, the trial court concluded that granting the parties equal parenting time-thereby slightly reducing Father's parenting time-was in the Children's best interests. As before, Father does not challenge any of the trial court's findings underpinning this conclusion, so we take all such findings as true, see R.M., 203 N.E.3d at 564 (citing Madlem, 592 N.E.2d at 687). Based on the foregoing, we cannot say the trial court clearly erred by concluding that modifying parenting time was in the Children's best interests.
2. The Trial Court Did Not Abuse Its Discretion by Awarding Mother Attorneys' Fees
[¶18] Finally, Father contends that the trial court abused its discretion by ordering him to pay $48,000 of Mother's attorneys' fees. As we have previously explained:
In post-dissolution proceedings, the trial court may order a party to pay a reasonable amount toward an opposing party's attorney's fees and, in general, the decision to grant or deny fees is left to the sound discretion of the trial court. Bartlemay v. Witt, 892 N.E.2d 219, 231 (Ind.Ct.App. 2008). The trial court may
consider such factors as the resources and respective incomes of the parties .... Id. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the trial court or where the trial court has misapprehended the law. Id. at 231-32.Harris v. Harris, 56 N.E.3d 1152, 1155-56 (Ind.Ct.App. 2016).
[¶19] Father argues that (a) the trial court applied the incorrect statutes and (b) the evidence does not support the trial court's finding of economic disparity between him and Mother. We address each argument in turn.
a. The Trial Court Did Not Err by Applying Indiana Code Sections 3115-10-1 and 31-17-4-3
[¶20] Father first contends that the trial court "applied the wrong statutes" in awarding Mother attorneys' fees. Appellant's Br. at 19. The trial court specifically cited Indiana Code sections 31-15-10-1 and 31-17-4-3. Appellant's App. Vol. II at 75-76. The former allows for attorneys' fees in dissolution proceedings, I.C. § 31-15-10-1(a), and the latter allows for attorneys' fees in parenting time modification proceedings, id. § 31-17-4-3(a). Father cites no authority for the proposition that Indiana Code section 31-15-10-1 is inapplicable to this case because that statute applies to only dissolution proceedings and this is a post-dissolution proceeding. We decline Father's invitation to limit the application of Indiana Code section 31-15-10-1 in this manner and conclude it was not error for the trial court to use that statute in this case.
[¶21] Father next contends that Indiana Code section 31-17-4-3 is inapplicable here because it "applies generally to the rights of noncustodial parents enforcing parenting time and seeking modification through such means." Appellant's Br. at 19. However, the plain language of Indiana Code section 31-17-4-3 makes clear that it applies to "any action filed to enforce or modify an order granting or denying parenting time rights," I.C. § 31-17-4-3(a) (emphasis added), not just those brought by a noncustodial parent.
Father claims the trial court should have used Indiana Code section 31-17-7-1 to determine attorneys' fees. However, that statute applies to proceedings regarding child custody, parenting time rights, and appointment of guardians ad litem in cases where parents were not married. The appropriate attorneys' fees statute for dissolution proceedings is Indiana Code Section 31-15-10-1, which is otherwise identical to Section 31-17-7-1.
[¶22] Assuming arguendo that the trial court erred by applying either or both of these statutes, any such error was harmless. See App. R. 66(A). The trial court's inquiries under Indiana Code sections 31-15-10-1 and 31-17-4-3 are substantially similar to the considerations we have outlined for attorneys' fees awards in post-dissolution proceedings. See Harris, 56 N.E.3d at 1156 (citing Bartlemay, 892 N.E.2d at 231). We are confident that the trial court would have reached the same result even if it had not applied those statutes.
[¶23] Therefore, we conclude that the trial court did not err by relying on Indiana Code sections 31-15-10-1 and 31-17-4-3, and we further conclude that even if it was error for the trial court to rely on either or both of those statutes, that error was harmless.
b. The Trial Court's Finding of Economic Disparity Between the Parties Is Not Unsupported by the Evidence
[¶24] Father next argues the evidence does not support the trial court's finding that he is better off financially than Mother. In support, Father claims the trial court did not adequately consider that Mother "aggressively pursue[d] this matter," Appellant's Br. at 19, which resulted in "significant attorney's fees on both sides for a fairly limited issue," namely, the number of hours of ABA therapy the oldest child should attend per week, id. at 18. This is a mischaracterization of the nature and substance of the parties' dispute, which turned into a large dispute about many of the most important decisions parents make for their children-medical, religious, and educational decisions. Moreover, the trial court noted that Father believed Mother "could have presented her case more efficiently, and that as a result of her alleged failure to do so, a number of trial days were required which he alleges may not have otherwise been required." Appellant's App. Vol. II at 76. Father also asserts that the trial court did not adequately consider that Mother's fiance pays for at least some of Mother's household expenses and helped her pay some of her attorneys' fees related to this case. However, the trial court specifically noted that Mother testified "that she receives some financial assistance with the payment of her attorney fees from her significant other and/or third parties." Id. The trial court also found that Father was earning approximately three times more than Mother and was thus in a superior economic position.
[¶25] In other words, the trial court clearly considered the arguments Father now makes on appeal when it decided to award Mother attorneys' fees. Even if it had not, we still could not say the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Therefore, we cannot say the trial court abused its discretion by awarding Mother attorneys' fees pursuant to Indiana Code section 31-17-4-3.
Conclusion
[¶26] In sum, the trial court did not clearly err by modifying legal custody and parenting time, and the trial court did not abuse its discretion by ordering Father to pay $48,000 of Mother's attorneys' fees. We therefore affirm the trial court on all issues raised.
[¶27] Affirmed.
Kenworthy, J., and DeBoer, J., concur.