Opinion
23A-JP-2981
06-05-2024
In re the Paternity of Co.W., A.C., Appellant-Petitioner v. C.W., Appellee-Respondent
ATTORNEYS FOR APPELLANT Trisha S. Dudlo-McCracken Derrick W. McDowell Dentons Bingham Greenbaum LLP Evansville, Indiana ATTORNEY FOR APPELLEE Jonathan R. Deenik Deenik Lowe, LLC Greenwood, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Hancock Superior Court The Honorable D. J. Davis, Judge Trial Court Cause No. 30D01-2308-JP-187
ATTORNEYS FOR APPELLANT
Trisha S. Dudlo-McCracken Derrick W. McDowell Dentons Bingham Greenbaum LLP Evansville, Indiana
ATTORNEY FOR APPELLEE
Jonathan R. Deenik Deenik Lowe, LLC Greenwood, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] A.C. ("Mother") appeals the trial court's order granting C.W. ("Father") primary physical custody of Co.W. ("Child"). We affirm.
Facts and Procedural History
[¶2] On June 13, 2020, Mother gave birth to Child. On August 17, 2023, Mother filed a Petition to Establish Paternity, Custody, Parenting Time and Support Order, and Request for Preliminary Hearing in which she acknowledged that Father was Child's biological father. She requested that the trial court, "after a hearing, enter appropriate custody and parenting time Orders reflecting the best interests" of Child, acknowledged that, "[f]rom the time the parties executed the Paternity Affidavit, Father has practiced visitation and has provided financial support for" Child, asked the court "to enter a custody order in her favor," requested that the court "set this matter for a Preliminary Hearing as soon as the calendar allows to enter a custody order in her favor; a support order, and a visitation schedule with the Father," and stated that she believed a hearing "will require thirty (30) to sixty (60) minutes to hear and determine." Appellant's Appendix Volume II at 16-17.
The Paternity Affidavit was not tendered to the trial court.
[¶3] On August 21, 2023, the court scheduled a hearing for September 8, 2023. An entry in the chronological case summary dated August 22, 2023, states: "Automated ENotice to Parties" and "Order Set for Hearing ---- 8/21/2023: [Mother's Counsel]." Id. at 4.
[¶4] On September 8, 2023, the court held a hearing. At the beginning of which the court stated: "[P]rovisional hearing on the Paternity of [Child], correct?" Transcript Volume II at 4. Each parent's counsel answered affirmatively. The court later stated: "[A]gain, it's a hearing, uh, motion for provisional order in the matter of the Paternity of [Child]." Id. Father's counsel indicated that the parties filed agreed stipulations and the court stated that it had the parties' weekly incomes, Father's weekly insurance, and preschool costs. The court asked Mother's counsel if he was going to call witnesses or just make a summary argument. Mother's counsel stated that he was going to make an opening statement and then call witnesses. Mother's counsel stated that "we have a situation where the parties share [Child] 50/50. One week on. One week off." Id. at 6. He also stated that "we're trying to determine which school he should go to and who should remain as primary physical custody." Id. Mother's counsel presented the testimony of Mother. When asked where Child currently lives, she stated: "[H]e currently lives with me, or I guess it's 50/50 so he lives with me in . . . Greenfield." Id. at 7. She indicated that she enrolled Child in preschool at Happy Faces Daycare on September 5th, and she worked between 5:00 a.m. and 1:00 p.m. She testified that she wakes Child at 4:20 a.m. and takes him to the maternal grandmother's home where he stays until 8:00 a.m. when he goes to daycare. She acknowledged that she and Father had "been doing week on/week off" for the majority of Child's life and that Father had been "vastly involved" in his life. Id. at 15. During cross-examination, when asked if she was asking to "change that," she answered affirmatively. Id. During recross-examination, Mother indicated that Child's paternal grandmother had been watching him during the day for maybe a year prior to September 5th.
[¶5] Mother's counsel presented the testimony of Father who indicated he lived in Greenwood, which was an almost forty-minute drive from Mother's residence. He testified that he worked between 8:00 a.m. and 5:30 p.m., he had his own home in which Child had his own room, and that he provided diapers, wipes, and food while Child was staying at the paternal grandmother's house. He testified that he did not like the Happy Faces Daycare and Child was on the waiting list for Clark Pleasant Learning Center. Upon questioning by his counsel, Father testified he was a ten-minute drive away from the paternal grandmother's home. He indicated that, if Child was in a preschool near him, Child would be able to sleep until 7:30 to 7:45 before going to daycare. He indicated that Child would follow "his classmates in the same district" and it would not be as hard on him to enter kindergarten or first grade. Id. at 37. He expressed his concern that he went to Happy Faces Daycare twice and there were "9 kids and 1 person." Id. at 38. Without objection, Father indicated that he was asking the court to grant him primary physical custody and shared legal custody and that the Child be enrolled in Clark Pleasant Learning Center as soon as possible. Mother's counsel then recalled Mother. Both parties presented child support worksheets which the court admitted.
[¶6] Mother's counsel stated: "I just have one (inaudible) ...." Id. at 52. The court asked "what's our witness going to tell us?" Id. Mother's counsel answered: "[S]he's going to tell us that her (inaudible) [Child]." Id. Father's counsel indicated she would stipulate that the families of both parties participate in taking care of Child, Mother's counsel indicated that the next witness would be the grandmother who wakes Child in the morning. The following exchange then occurred:
THE COURT: (inaudible). I'd assume the same, so I don't know that that matters.
[Mother's Counsel]: Okay.
THE COURT: I am assume [sic] that's factually correct. You got family here. They're help [sic] out.
[Mother's Counsel]: Right.
THE COURT: That's what they should be doing.
[Mother's Counsel]: I mean both sides are (inaudible) in the family.
THE COURT: I got you. Any other - anything else?
[Mother's Counsel]: I'll just make a closing statement ....Id. at 53.
[¶7] Mother's counsel argued: "She's just asking for primary physical custody with support ordered . . . set as requested and that . . . they go by Indiana Parenting Time Guidelines." Id. Father's counsel asked that Father be granted primary custody. Mother's counsel replied in part by arguing "the fact that there was no Court order prior to this means that [Mother] was not violating the Court order by putting the child in . . . a preschool which is helping him learn." Id. at 55. Upon questioning by the court, Mother indicated that she had "been doing a 50/50" since Child was two years old. Id. at 57. The court asked Mother why she was asking "to change things today," and Mother answered: "Because he needs to be in one spot and not have to travel every other week. He's at that age." Id. at 58.
[¶8] Mother's counsel filed a proposed order in which she suggested that the court find that "[e]vidence was heard," grant the parties joint legal custody, grant her primary physical custody, order Father to pay her $252 per week in child support, enter parenting time based on the Indiana Parenting Time Guidelines with certain exceptions, and order that the Child remain enrolled in Happy Faces Daycare. Appellant's September 8, 2023 Proposed Order at 1.
[¶9] On October 9, 2023, the court entered an order granting Father primary physical custody, ordering that the parents share joint legal custody, granting Mother parenting time, and ordering her to pay $99 per week in child support. On November 8, 2023, Mother filed a "Motion to Correct Error, or in the Alternative, Motion to Reconsider, and Request for Entry of Findings of Fact and Conclusions of Law Related to the Order of October 9, 2023." Appellant's Appendix Volume II at 18 (capitalization omitted). Mother asserted that she had primary physical custody of Child and any change of custody would be a modification of custody and the court erred "when it entered its Order after a preliminary hearing changing custody of the [Child] without Mother being provided proper notice and a full and fair trial," and requested a "full contested evidentiary hearing." Id. at 19. Father filed a response to Mother's motion arguing the court's order was a final judgment.
[¶10] On November 20, 2023, the court entered an order denying Mother's motion. Mother filed a notice of appeal and alleged that the order was a final judgment as defined by Ind. Appellate Rules 2(H) and 9(I). Father filed a motion to dismiss asserting the appealed order was not a final judgment or an appealable interlocutory order. Mother filed a response in which she sought attorney fees "directly associated with preparing" her response to Father's motion to dismiss pursuant to Ind. Appellate Rule 66(E). Appellant's Response in Opposition to Appellee's Motion to Dismiss at 4. This Court entered an order holding Father's motion to dismiss in abeyance to be addressed by the writing panel.
The notice states "Date of Judgment/Order being appealed: May 4, 2023," but this appears to be a scrivener's error. Notice of Appeal at 2. The notice also stated: "Copy of judgment or order being appealed (See attached Exhibits A, B and C)." Id. at 3 (bold omitted). Mother attached the court's October 9, 2023 order as Exhibit A, the November 20, 2023 order as Exhibit B, and her November 8, 2023 motion as Exhibit C.
Discussion
[¶11] We first address Father's motion to dismiss. In his motion, Father asserted that the trial court's order "was a Provisional Order and did not dispose of the issues as to all parties or put an end to the particular case as to the parties." Appellee's Motion to Dismiss at 3. However, Father did not specify which issue remained unaddressed. The trial court's October 9, 2023 order granted Father primary physical custody of Child, ordered that the parents share joint legal custody, granted Mother parenting time, and ordered Mother to pay child support. We cannot say that the trial court's order failed to dispose of all the claims. See In re Paternity of M.R.A., 41 N.E.3d 287, 294 (Ind.Ct.App. 2015) (observing that there was no indication in the trial court's approval of an agreement that the order was only provisional or that the court contemplated any future action with regard to the issues of custody, support, or parenting time, and holding that the order approved a full and final agreement between the parties).
[¶12] With respect to Mother's request for appellate attorney fees pursuant to Ind. Appellate Rule 66(E) in preparing the response to Father's motion to dismiss, our discretion to award attorney fees under Ind. Appellate Rule 66(E) is limited to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App. 2003). A party must show the other party's arguments are utterly devoid of all plausibility or the party flagrantly disregarded the form and content requirements of the rules of appellate procedure, omitted and misstated relevant facts, and filed briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. Id. at 346-347. We cannot say Mother has made the required showing. We deny her request for appellate attorney fees.
[¶13] Mother argues the trial court violated her due process rights when it failed to give proper weight to her primary physical and legal custody established under the Paternity Affidavit, and by modifying custody and parenting time without proper notice and without a proper evidentiary hearing. She asserts that Indiana law "has prohibited trial courts from sua sponte ordering a change of custody," Father did not properly plead his request for modification of child custody, and she did not have sufficient notice of his request for modification. Appellant's Brief at 17. She contends that "[a] change in custody and parenting time should have been determined after a full contested evidentiary hearing on that matter - not at a thirty (30) minute preliminary hearing." Id. at 19. She argues that the court improperly modified custody and parenting time without considering the enumerated factors under Indiana law, its factual findings did not support the judgment, and it did not find any substantial change in circumstances to necessitate a change. She asserts there was no emergency in this case and, "[a]s such, no preliminary, summary hearing on the issue of custody or parenting time was needed." Id. at 23.
[¶14] With respect to Mother's due process arguments, "[a]s a general rule, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court." GKC Ind. Theatres, Inc. v. Elk Retail Invs., LLC, 764 N.E.2d 647, 651 (Ind.Ct.App. 2002). Further, the Indiana Supreme Court has held that "a party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal." In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016). We also note that, under the invited error doctrine, a party may not take advantage of an error that she commits, invites, or which is the natural consequence of his own neglect or misconduct. D.G. v. S.G., 82 N.E.3d 342, 347 (Ind.Ct.App. 2017) (citing Trabucco v. Trabucco, 944 N.E.2d 544, 551 (Ind.Ct.App. 2011), trans. denied), trans. denied.
[¶15] Here, Mother did not assert to the trial court that she was denied due process and did not raise arguments regarding notice and a full hearing until her motion to correct error. Mother's August 17, 2023 petition requested that the court enter a custody order after a hearing and indicated that she believed a hearing would require thirty to sixty minutes. Further, Mother's proposed order addressed all issues and did not indicate that she proposed only an interlocutory or provisional order.
[¶16] Even assuming that Mother has not waived or invited any error, we cannot say reversal is warranted. "'Generally stated, due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses.'" McClendon v. Triplett, 184 N.E.3d 1202, 1210 (Ind.Ct.App. 2022) (quoting Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008) (quoting Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 842 N.E.2d 885, 889 (Ind.Ct.App. 2006))), trans. denied. In light of the court's notice of the hearing, the presentation of Mother's testimony, the admission of multiple exhibits including exhibits introduced by Mother, and the cross-examination of Father by Mother's counsel, we cannot say that Mother's due process rights were violated. We also cannot say that Father's failure to file a formal petition for custody violated Mother's due process rights where Mother raised the issue and Father requested primary physical custody at the hearing. See generally McDaniel v. McDaniel, 150 N.E.3d 282, 290 (Ind.Ct.App. 2020) ("[W]e have long held that a trial court is not precluded from entering a custody arrangement not specifically advanced by either party so long as that custody arrangement is in the child's best interests."), trans. denied; Meneou v. Meneou, 503 N.E.2d 902, 904-905 (Ind.Ct.App. 1987) (addressing the mother's argument that the trial court abused its discretion by awarding custody to the father where the father never filed a formal request for sole custody of the children, holding that "[t]he party opposing the requested modification may file an answer or a counterpetition, but is not required to do so" and the mother's filing of a modification petition placed custody matter before trial court, and concluding that trial court's grant of custody to the father was not an abuse of discretion solely because he did not file a counter-petition).
To the extent Mother cites Wilson v. Myers, 997 N.E.2d 338 (Ind. 2013), we find that case distinguishable. In Wilson, the parents divorced and physical custody of their two children was awarded to the father. 997 N.E.2d at 338. The mother filed a motion to modify custody seeking physical custody of both children. Id. at 339. After a hearing at which "[n]o witnesses were sworn during the hearing or evidence received," the trial court granted the mother's motion. Id. On appeal, the Indiana Supreme Court discussed the trial court's order and observed: "No mention is made of whether this modification is in the best interests of [the children], nor is there any mention of a substantial change in any of the factors enumerated in Indiana Code § 31-17-2-8." Id. at 341. It stated: "None of the witnesses at the . . . hearing were sworn or cross-examined; none of the documents introduced-if there were any-were admitted through any foundation or examination of reliability." Id. The Court held: "while summary proceedings-when properly agreed to- can be beneficial in deciding matters of custody and parenting time to minimize the negative impact on the children, such summary proceedings may be less appropriate where the parties are vigorously contesting every facet of the process and appear incapable of approaching these decisions in a civil or cooperative manner." Id. at 342. The Court remanded for a proper evidentiary hearing. Id. Unlike in Wilson, here, Mother and Father were sworn as witnesses, each testified and were cross-examined, the trial court admitted multiple exhibits, and the court entered a five-page order discussing the evidence.
[¶17] With respect to Mother's argument that the trial court improperly modified custody and parenting time without considering the enumerated factors under Indiana law and its factual findings did not support the judgment, we review custody modifications for an abuse of discretion with a preference for granting latitude and deference to trial courts in family law matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). "We may neither reweigh the evidence nor judge the credibility of the witnesses." Fields v. Fields, 749 N.E.2d 100, 108 (Ind.Ct.App. 2001), trans. denied. "We set aside judgments only when they are clearly erroneous, and will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment." Kirk, 770 N.E.2d at 307. The Indiana Supreme Court explained the reason for this deference in Kirk:
While we are not able to say the trial judge could not have found otherwise than he did upon the evidence introduced below, this Court as a court of review has heretofore held by a long line of decisions that we 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, or that he should have found its preponderance or the inferences therefrom to be different from what he did.Id. (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). Therefore, "[o]n 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. "The party seeking to modify custody bears the burden of demonstrating the existing custody should be altered." Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).
[¶18] The court's findings control as to the issues they cover and a general judgment will control as to the issues upon which there are no findings. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). When a trial court has made findings of fact, we apply the following two-tier standard of review: whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions thereon. Id. Findings will be set aside if they are clearly erroneous. Id. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. Id. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. Id. To determine that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made. Id. A general judgment entered with findings will be affirmed if it can be sustained on any legal theory supported by the evidence. Id.
[¶19] Ind. Code § 31-14-13-6 provides the court may not modify a child custody order unless modification is in the best interests of the child and there is a substantial change in one or more of the factors under Ind. Code § 31-14-13-2 and, if applicable, Ind. Code § 31-14-13-2.5. The factors in Ind. Code § 31-14-13-2 include: (1) the age and sex of the child; (2) the wishes of the child's parents; (3) the wishes of the child; (4) the interaction and interrelationship of the child with the child's parents and siblings and 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; (7) evidence of a pattern of domestic or family violence by either parent; and (8) evidence the child has been cared for by a de facto custodian.
Both parties indicate that the court modified custody, and Father "concedes that due to the long acquiescence of the parties to a joint physical custody agreement, the trial court could employ[] a modification standard as opposed to an initial custody standard." Appellee's Brief at 13.
[¶20] The record reveals that the court heard testimony from Mother and Father. It found that Child "is now three years old and preparing to begin preschool." Appellant's Appendix Volume II at 21. It found that Mother indicated Child did not need to go to preschool and that the parties missed the deadline for enrolling Child in the Clark Pleasant Learning Center, which is run through the Clark Pleasant Community School Corporation which and is the same corporation where Child could attend if he were to reside primarily with Father. It found that the Happy Faces Daycare was operated out of a residential home and no evidence was provided to support whether preschool is offered at the home. It found that Mother must wake Child at 4:20 a.m. and drop him off at her mother's home due to her work schedule and that Father could wake Child at 7:45 a.m. at his residence. It found that Father offered stability by owning a home and having regular work hours, proximity to a primary daycare provider and the paternal grandmother, and a "State supported preschool." Id. at 22. The court stated that it "does not find that [Mother's] living situation or work schedule provides a stable schedule for [Child] to excel in preschool or higher education moving forward." Id. at 23. We conclude that Mother asks that we reweigh the evidence and judge the credibility of the witnesses, which we cannot do. We cannot say that the trial court's judgment was clearly erroneous.
[¶21] For the foregoing reasons, we affirm the trial court's order.
[¶22] Affirmed.
Foley, J., and Kenworthy, J., concur.