Opinion
23A-DC-2381
07-16-2024
Deborah L. Bryan, Appellant v. Tyler J. Bryan, Appellee
ATTORNEY FOR APPELLANT George A. Lohmeier Allen Wellman Harvey Keyes Cooley, LLP Greenfield, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Marie L. Kern, Judge Trial Court Cause No. 49D14-2103-DC-2441
ATTORNEY FOR APPELLANT
George A. Lohmeier Allen Wellman Harvey Keyes Cooley, LLP Greenfield, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE
Case Summary
[¶1] Deborah Bryan ("Mother") appeals the trial court order modifying primary physical and sole legal custody of S.B. ("Child") to Tyler Bryan ("Father"). We affirm.
Issues
[¶2] Mother raises several issues which we consolidate and restate as follows:
I. Whether the trial court committed fundamental error by denying her a meaningful opportunity to be heard as required by due process of law.
II. Whether Mother has waived some of her arguments on appeal by her failure to comply with the Indiana Rules of Appellate Procedure.
Facts and Procedural History
[¶3] Mother and Father were married on June 19, 2016, and Child was born to them on April 17, 2019. On March 30, 2021, Father filed a petition for dissolution of marriage. The trial court subsequently set several virtual status and case management conferences at which Father appeared with counsel, and Mother appeared only by counsel. On June 24, 2021, Father filed a "Verified Motion for Parenting Time" with Child, as the parties could not reach an agreement on that issue. App. v. II at 67. Mother objected to Father's motion on the ground Father had not yet obtained court-ordered drug testing. At a status and case management conference held on October 6, 2021, at which only the parties' attorneys appeared, the court ordered Father to submit to drug testing within two weeks and granted Father supervised parenting time with Child.
[¶4] The parties subsequently engaged in mediation. On November 3, 2021, a mediator filed a mediation report with the court and both parties filed their waivers of a final dissolution hearing. On November 4, the trial court approved the parties' "Mediated Final Marital Settlement Agreement" and issued the final decree of dissolution. Id. at 76. Pursuant to that approved settlement agreement, Mother had sole legal and physical custody of Child, and Father had supervised parenting time. The settlement agreement further provided that, "[a]fter the completion of [Father's] criminal cases, either party may petition the court to modify [Father's] parenting time." Id. at 78.
[¶5] On October 20, 2022, Father filed a "Verified Petition for Modification of Custody, Parenting Time, and Child Support," in which he asserted that the dismissal of his criminal cases was a "substantial change in circumstances" since the date of the settlement agreement that warranted modifying custody to be joint legal and physical custody. Id. at 108. That same date the court held a virtual status conference that was attended only by the parties' attorneys and at which the court set a virtual preliminary hearing on the custody modification petition for January 27, 2023.
[¶6] On January 27, the trial court held the virtual hearing on Father's petition to modify custody. Mother and Father both appeared in person (remotely) and by counsel. Both parties testified and presented evidence at the hearing, and Mother moved to dismiss Father's petition to modify custody. The court denied Mother's motion to dismiss and took the matter of custody modification under advisement. Pursuant to Father's request, the court set the matter for a review hearing for June 14, 2022. On June 14, the court conducted a virtual, remote review hearing and attorneys conference. Neither party appeared in person, only by counsel. On June 17, 2022, the trial court issued its order on the January 27 custody modification hearing and the June 14 review hearing. Among other things, the court ordered that Father have unsupervised parenting time with Child and the parties attend "mediation." Id. at 151-152.
[¶7] Father subsequently filed a motion to show cause why Mother should not be found in contempt for failure to grant Father court-ordered parenting time. On July 5, 2022, Father also filed an "Emergency Motion for Change of Custody," in which he alleged that Mother had denied him any parenting time in violation of the court's order and that Mother's actions were "interfering with the emotional well-being of [Child]." Id. at 162. Father sought an emergency "change of custody until final hearing" on the modification petition. Id. The court set Father's motion for a remote hearing and provided notice to all parties and their counsel. On July 18, the court conducted the remote hearing on the petition for emergency custody; Father appeared in person and with counsel, but Mother failed to appear in person, only by her counsel. The court heard evidence on Father's petition and issued an order granting Father temporary sole legal and physical custody of Child, pending a final hearing on the modification petition.
[¶8] On July 21, 2022, Father filed an "Emergency Motion for Rule to Show Cause" in which he alleged that Mother was hiding herself and Child from him to avoid granting him court-ordered custody, and neither Mother nor Child could be located. He informed the court that he had reported Child as missing to law enforcement authorities. The court set the motion for a virtual hearing on August 1, but Mother failed to appear. The court "reserve[d]" the issue of Mother's contempt for the in-person final hearing on Father's custody modification petition to take place on September 21, 2022. Id. at 21. The court issued an Order to Appear ordering Mother to appear for the final hearing in person and noting that her failure to do so "may result in a warrant issued for [her] arrest." Id. at 172.
[¶9] The final hearing on Father's petition to modify custody was continued several times. On April 27, 2023, the court set the final hearing for June 8, 2023, and ordered Mother to appear in person so that the court could "observe behavior and demeanor of [the] parties," which the court noted was of "great importance" in determining custody and parenting time issues. Id. at 29.
[¶10] On May 26, 2023, Mother filed a motion in limine in which she sought to admit at the final hearing evidence of matters that took place prior to the date of the parties' settlement agreement. On May 31, the trial court granted Mother's motion, permitting Mother to admit such evidence
if this evidence is material information related to one of the statutory factors the Court must consider when evaluating modification of custody, is new information to the Court, and may constitute a substantial change in a factor for the purposes of modification, ..., subject to admissibility pursuant to the Indiana Rules of Evidence and Trial Procedure.Id. at 220.
[¶11] The trial court conducted the final hearing on Father's petition for custody modification on June 8. Father appeared in person and with counsel. Mother did not appear in person, only by her counsel. The court heard evidence, which included cross examination of Father by Mother's counsel. During that examination, Mother's counsel was permitted to-and did-question Father about events that took place prior to the date of the parties' approved settlement agreement, i.e., prior to November 4, 2021. Mother's counsel also was permitted to-and did-refresh Father's recollection of such events by showing him Exhibit A, a video recording of events that took place prior to November 2021. Mother was not permitted to admit Exhibit A into evidence because she failed to lay a proper foundation for it. Tr. v. II at 225. However, at Mother's request, the trial court admitted into evidence her Exhibits D, E, F, and G, all of which were video recordings of events that took place prior to November 2021. Mother's counsel also questioned Father about her Exhibit I, which was purported to be text messages between Father and Mother regarding events that took place prior to November 2021. Exhibit I was never offered into evidence.
[¶12] On September 6, 2023, the trial court issued findings of fact and conclusions thereon, per Mother's Trial Rule 52 request, in which it granted Father primary physical and sole legal custody of Child. In so ruling, the court found that the video and audio recordings of events that occurred prior to November 2021, as contained in Mother's admitted exhibits, lacked "probative value to the issues of custody and parenting time" and/or accorded them no "significant weight." Appealed Order at 9. This appeal ensued.
Discussion and Decision
Standard of Review
[¶13] Mother challenges the trial court's order modifying child custody. As an initial matter, we note that Father has not filed an appellee's brief in this appeal. Under such circumstances, we will not develop an argument for the appellee but instead will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error. Salyer v. Wash. Regular Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020). "Prima facie error in this context means 'at first sight, on first appearance, or on the face of it.'" Id. (citation omitted).
[¶14] The trial court also entered specific findings of fact and conclusions thereon. When a trial court's judgment contains special findings and conclusions, we apply a two-tiered standard of review. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the findings and, second, we determine whether the findings support the judgment. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial court's decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App. 1999), trans. denied.
[¶15] We review Mother's challenges to evidentiary rulings for an abuse of discretion. See, e.g., Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). Thus, we do not reweigh the evidence or judge witness credibility, and we consider conflicting evidence in the light most favorable to the judgment. See id.; see also Wilcoxson v. State, 132 N.E.3d 27, 31-32 (Ind.Ct.App. 2019) (noting trial courts are given wide latitude in weighing the probative value of evidence against the prejudice caused by its admission), trans. denied. However, to the extent Mother raises constitutional claims, we review them de novo. See, e.g., M.D. v. State, 108 N.E.3d 301, 304 (Ind. 2018).
Due Process/Evidentiary Claims
[¶16] Mother raises a due process claim that the trial court denied her a fair trial by failing to provide her with an opportunity to present evidence; however, she waived that claim by failing to raise it in the trial court. See, e.g., Plank v. Cmty. Hosp. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013) ("[A]ppellate review presupposes that a litigant's arguments have been raised and considered in the trial court."); Carney v. Patino, 114 N.E.3d 20, 29 n.6 (Ind.Ct.App. 2018) ("The trial court cannot be found to have erred as to an issue or argument that it never truly had an opportunity to consider."), trans. denied. Mother may avoid waiver on appeal only if she can show fundamental error. See, e.g., M.E. v. V.A. Medical Center, 957 N.E.2d 637, 638 (Ind.Ct.App. 2011). "Fundamental error is error which is a blatant violation of our concepts of fundamental fairness and in which the harm is substantial and apparent." Id. (internal quotation and citation omitted). In order to be deemed fundamental, an error must be "so prejudicial to the rights of a defendant as to make a fair trial impossible." Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009) (internal quotation and citation omitted).
We apply the fundamental error doctrine only in limited situations in civil cases, such as civil cases, like this one, that involve parental rights. See, e.g., Johnson v. Wait, 947 N.E.2d 951, 959 (Ind.Ct.App. 2011), trans. denied.
[¶17] The Fourteenth Amendment to the United States Constitution bars states from depriving persons of their property and rights without due process of law. See Rotert v. Stiles, 174 N.E.3d 1067, 1070 (Ind. 2022) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner. E.g., Hewitt v. Westfield Washington Sch. Corp., 46 N.E.3d 425, 433 (Ind. 2015) (quotation and citation omitted). Generally, the opportunity to be heard must include a pre- deprivation hearing "appropriate to the nature of the case." Id. (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)).
[¶18] Mother contends that she was denied a meaningful opportunity to be heard because the trial court did not give her the opportunity to present evidence regarding matters that occurred prior to the date of the settlement agreement. Indiana Code Section 31-17-2-21(c) provides that, in proceedings to modify custody, "[t]he court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child" as described by the statutes relating to custody modifications. In conformity with that statute, the trial court granted Mother's motion in limine to the extent she sought to present evidence of pre-November 2021 (the date of the settlement agreement) events that were material "to one of the statutory factors the Court must consider when evaluating modification of custody." App. v. II at 220. At the final custody modification hearing, the court allowed Mother to admit such evidence to the extent she laid a proper foundation for it. It also allowed Mother's counsel to question other witnesses about that evidence, even the evidence that was not admissible due to lack of a proper foundation.
Only Mother's Exhibit A was excluded from evidence for failure to lay a proper foundation; her other four video exhibits were admitted with a proper foundation. We note that, had Mother appeared in person-even remotely-at the hearing, she also may have been able to lay a proper foundation for Exhibit A. In any case, the basis for the exclusion of Exhibit A was not that it related to pre-settlement agreement events, as Mother claims; it was excluded solely for a lack of foundation.
[¶19] Mother has failed to show prima facie fundamental error; rather, the record establishes that she was given multiple meaningful opportunities to be heard and present evidence, in conformity with the requirements of procedural due process, but chose not to avail herself of most of those opportunities, including the final hearing on custody modification. Yet, even in her voluntary absence from the hearing, she was permitted to-and did-admit evidence relating to events prior to the settlement agreement to the extent she laid a proper foundation for them. Mother has failed to show a denial of due process.
Waiver
[¶20] Two of the issues "raised" by Mother on appeal are waived for failure to comply with the Indiana Rules of Appellate Procedures. Appellate Rule 46(A)(8)(a) requires that each contention must be "supported by cogent reasoning [and] ... citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on." When an appellant provides no cogent argument for a contention, that contention is waived. See, e.g., Burnell v. State, 110 N.E.3d 1167, 1171 (Ind.Ct.App. 2018) (noting the presentation of the appellant's contentions must contain a clear showing of how the issues and contentions relate to the particular facts of the case under review, and we will not review undeveloped arguments). Similarly, when an appellant provides no citation to legal authority supporting his contentions, those contentions are waived. E.g., Shields v. Town of Perrysville, 136 N.E.3d 309, 312 n.2 (Ind.Ct.App. 2019). Thus, under our Appellate Rules, "[i]t is not sufficient for the argument section that an appellant simply recites facts and makes conclusory statements without analysis or authoritative support." Kishpaugh v. Odegard, 17 N.E.3d 363, 373 n.3 (Ind.Ct.App. 2014). This rule "prevents the court from becoming an advocate when it is forced to search the entire record for evidence in support of [a party's] broad statements." Lane Alan Schrader Trust v. Gilbert, 974 N.E.2d 516, 521 (Ind.Ct.App. 2012) (citing Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990)).
[¶21] Mother contends that the trial court "committed reversible error" when it awarded Father temporary emergency custody of Child "on the sole grounds" that Mother had violated the parenting time order. Br. at 19. Although she cites a case that found a custody award based solely on the other parent's contempt of court was erroneous, she provides no analysis of how that caselaw applies to the emergency custody order in this case. Therefore, Mother has waived the issue for review.
Matter of Paternity of B.Y., 159 N.E.3d 575 (Ind. 2020).
[¶22] Waiver notwithstanding, Father alleged in his motion for emergency custody not only that Mother had denied him any parenting time in violation of the court's order, but also that Mother's actions were "interfering with the emotional well-being of [Child]." App. v. II at 162. In addition, Father testified at the hearing on his motion that Mother's actions were "hurting" Child and that Mother was not thinking about the best interests of Child. Tr. v. II at 114. Father testified that Mother's and Child's whereabouts were unknown. Mother chose not to appear in person at that hearing and presented no evidence to contradict Father's testimony. The trial court did not err in finding that Mother hiding Child from Father and the court was "concern[ing]," not in Child's best interest, and warranted an emergency change in custody to Father. Id. at 135.
[¶23] Mother also purports to challenge the final modification of custody on the ground that the trial court erroneously found her audio and video evidence to lack probative value. However, in Mother's one paragraph argument regarding that issue, she cites no legal authority at all. Therefore, Mother has waived the issue. Waiver notwithstanding, Mother's sole argument simply asks us to reweigh the evidence in the audio and video recordings to second-guess the trial court's determination regarding their admissibility, which we cannot do. See Snow, 77 N.E.3d at 176.
Conclusion
[¶24] Mother has failed to make a prima facie showing of fundamental error relating to her due process rights, and she has waived her other claims for failure to comply with the Indiana Rules of Appellate Procedure.
[¶25] Affirmed.
Altice, C.J., and Mathias, J., concur.