Opinion
24A-DR-372
06-28-2024
Melinda Johnson, Appellant-Petitioner v. Sabastian Johnson, Appellee-Respondent
APPELLANT, PRO SE Melinda Johnson Martinsville, Indiana APPELLEE, PRO SE Sabastian Johnson Seymour, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Bartholomew Superior Court The Honorable James Worton, Judge The Honorable Timothy B. Day, Special Judge Trial Court Cause No. 03D01-1608-DR-4557
APPELLANT, PRO SE Melinda Johnson Martinsville, Indiana
APPELLEE, PRO SE Sabastian Johnson Seymour, Indiana
Judges Weissmann and Foley concur.
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] Melinda Johnson ("Mother") appeals the denial of her petition to modify custody of her two children. We affirm.
Facts and Procedural History
[¶2] Mother and Sabastian Johnson ("Father") married in February 2015 and divorced in November 2016. They have two children: M.J., their biological child born in May 2015, and A.J., who was born to Mother in August 2012 and adopted by Father during the marriage. As part of the dissolution decree, Mother and Father agreed Mother would have full legal and physical custody of the children and Father would have parenting time every other weekend. In 2018, Father married Brittany Johnson ("Stepmother").
[¶3] Following the dissolution, Mother and Father had ongoing disagreements about whether A.J. needed mental-health treatment or medication. Mother "inappropriately shopped [A.J.] to various healthcare providers telling various stories regarding the child's conduct and from time to time obtaining various medications to be given to the child." Appellant's App. Vol. III p. 58. After a back and forth of filings and hearings, Father petitioned for custody of A.J. in June 2019. The trial court appointed Laura Raiman as guardian ad litem (GAL) for A.J. and ordered the family to undergo a psychological evaluation with Dr. Linda McIntire.
[¶4] In their reports, both GAL Raiman and Dr. McIntire expressed concern about the parents' conflicting courses of mental-health treatment for A.J. and Mother's inability to accept responsibility for her actions. GAL Raiman concluded it was in A.J.'s best interests that Father have sole physical and legal custody of both A.J. and M.J. so the children wouldn't be separated. GAL Raiman recommended Mother have parenting time according to the Indiana Parenting Time Guidelines with some restrictions, including shorter increments of summer parenting time due to "concern for the mental well-being of the children being in Mother's care for extended periods of time." Id. at 106. Dr. McIntire recommended the court "revisit the current arrangement in which Mother has sole medical decision-making authority." Id. at 47.
[¶5] After holding a final hearing, the trial court transferred custody of both children to Father in February 2021. Based on the evidence from the hearing and GAL Raiman's and Dr. McIntire's reports, the court concluded it was in the children's best interests that Father have sole legal and primary physical custody. The court ordered that Father have the authority to enroll the children in school and make all medical decisions and that Mother cannot interfere with these educational or medical decisions. Finding that unrestricted parenting time with Mother "would pose a significant risk to the physical safety and/or emotional development of the children," the court gave Mother parenting time according to the Parenting Time Guidelines with GAL Raiman's recommended restrictions on summer parenting time. Id. at 101.
[¶6] In April, Mother moved to compel Father to cease certain violations of the February 2021 order, including refusing to make up parenting time that Mother missed. Two months later, she filed a motion for rule to show cause alleging the same. After a hearing on both motions, the trial court issued an order in August 2021 requiring Father to allow Mother make-up parenting time and to stop restricting Mother's phone calls with the children and speaking negatively to Mother or about her in front of the children.
[¶7] In January 2022, Mother petitioned to modify custody and asked for a custody evaluation, contending there'd been a substantial change in circumstances since the February 2021 order. The court ordered an evaluation by Dr. Kevin Byrd and referred the parties to mediation. In his July 2022 report, Dr. Byrd said A.J.'s emotions and behavior improved dramatically since being in Father's custody. As to Mother's mental health, Dr. Byrd described her as having "persecutory ideation and a failure to accept any responsibility [for] the continual litigation and coparent conflict," which "prevents her from taking any ownership of the behaviors that swayed the court to make a change in custody." Appellee's App. Vol. II p. 79. Dr. Byrd concluded that Father should maintain sole legal custody and that joint physical custody should be allowed only after Mother resolves her personality and behavioral problems that led to the initial custody change. He also noted that because Mother lives in Martinsville and Father lives in Seymour, "50/50 parenting time [is] virtually impossible," and Mother should consider moving closer to Seymour. Id. at 90. He recommended that both parents participate in therapy and coparent coaching and that Father complete a coparenting course and parenting course for the children's age group.
[¶8] A hearing on Mother's modification petition was held in January 2024. Mother's testimony focused on her progress with her mental-health issues and claims that Father was restricting her access to the children. She asserted that she had addressed the problems Dr. Byrd described by going to therapy and completing the recommended high-conflict coparenting course. Mother alleged Father and Stepmother had restricted her access to A.J.'s grades and online school account, information about the children's sports and activities, and some of the children's medical records and appointments. She admitted that since the August 2021 order, Father stopped restricting her midweek parenting time and video calls with the children, and now they can text and call whenever they want. Mother also claimed the children were "getting the worst grades in their entire lives" and presented evidence of their grades. Tr. pp. 25, 98-101. The children go to school in Seymour, but Mother has lived in Martinsville since March 2020, and she acknowledged that if modification were granted, she would be moving the children to schools in Martinsville. Mother admitted she hadn't been exercising her midweek parenting time because of the distance between her home and Father's.
[¶9] Mother's therapist testified that they'd worked on stress-managing techniques and that he'd seen improvement in her ability to identify and reduce her stress. He said he didn't "observe anything" or "have any direct evidence that would give [him] any concern" about Mother having custody or raising the children. Id. at 57, 59.
[¶10] Stepmother also testified at the hearing. She denied that the children were getting poor grades and said Father has never deprived Mother of parenting time or access required by the court order. She stated that Mother has access to information about all the children's school activities, grades, and records.
[¶11] Father testified that he never denied Mother parenting time and that Mother voluntarily chose not to exercise her midweek time. He provided documentation that he notified Mother of each of the children's medical appointments. Father also testified that he completed Dr. Byrd's recommendations, including the high-conflict parenting class, a parenting class specifically for the children's age group, and attending therapy sessions. He explained that the children were getting bad grades when he first gained custody, but now their grades have improved, and he presented evidence of both children's grades.
[¶12] Following the hearing, the court denied Mother's petition to modify custody.
[¶13] Mother, pro se, now appeals.
Discussion and Decision
[¶14] Mother contends the trial court erred in denying her petition to modify the February 2021 custody order. Trial courts have discretion in both initial custody and modification-of-custody determinations, and we review those determinations for an abuse of discretion. In re Paternity of A.R.S., 198 N.E.3d 423, 430 (Ind.Ct.App. 2022). We accord deference to the trial court's familylaw determinations due to its "unique, direct interactions with the parties face-to-face, often over an extended period of time," which provides the court with the opportunity to assess credibility, ascertain information, and apply common sense to determine what is in the best interests of the child involved. Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011).
[¶15] A trial court may not modify a child-custody order unless (1) modification is in the best interests of the child and (2) there is a substantial change in one or more of the factors that the court may consider in originally determining custody. Ind. Code § 31-17-2-21. We will reverse a custody determination only if it is clearly against the logic and effect of the facts and circumstances before the trial court or the reasonable inferences to be drawn therefrom. A.R.S., 198 N.E.3d at 430. We do not reweigh the evidence or reassess witness credibility, and we view the evidence most favorably to the judgment. Best, 941 N.E.2d at 502.
[¶16] We begin by highlighting that Mother's opening brief substantially violates the Indiana Rules of Appellate Procedure. Rather than "briefly describ[ing]" the nature of the case, the course of proceedings, and the disposition of relevant issues, see Ind. Appellate Rule 46(A)(5), Mother's twenty-nine-page statement of the case is argumentative and contains the bulk of her contentions on appeal. The statement of facts primarily includes statements about the parties' family histories and living situations, almost none of which are supported by citations to the record. See App. R. 46(A)(6)(a). And Mother's four-page argument section doesn't cite the record at all. See App. R. 46(A)(8)(a) (providing each contention in the appellant's Argument section "must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on"). Despite these significant violations, because "we prefer to resolve cases on the merits instead of on procedural grounds like waiver," we will address the merits of Mother's appeal as best we can. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (quotation omitted).
[¶17] That said, we must add that Mother spends a substantial portion of her brief challenging the February 2021 custody order. She acknowledges that "[a] motion to modify custody 'is not a vehicle to relitigate the initial custody determination as to who might make the better parent.'" Appellant's Br. p. 41 (quoting Dwyer v. Wynkoop, 684 N.E.2d 245, 249 (Ind.Ct.App. 1997), trans. denied). Yet rather than focusing on how the statutory factors have substantially changed since February 2021 such that she should be awarded custody, Mother's primary argument is that there wasn't a substantial change in circumstances to justify transferring custody to Father in the first place. But that's not what's at issue here. To the extent Mother is challenging the sufficiency of the evidence supporting the February 2021 custody order, she should have appealed that order. Because the time to do so has passed, we will not consider this argument.
Mother also contends the February 2021 custody determination was made "under constructive denial of counsel" and "without due process." Appellant's Br. p. 38. Similarly, the appropriate time to raise these arguments would've been in an appeal of that determination. Thus, we will not address these arguments either.
[¶18] Mother's remaining arguments rely on the evidence least favorable to the trial court's ruling. Mother is essentially asking us to reweigh the evidence, which we cannot do. See Best, 941 N.E.2d at 502. She focuses on Father and Stepmother's "patterns of interference, violations, and inappropriate coparenting," Appellant's Br. p. 40, especially their alleged interference with her access to the children's school and medical information, but the parties presented conflicting evidence on these allegations. Mother said she couldn't access A.J.'s grades but then presented reports of both children's grades, and Stepmother testified Mother's wasn't restricted from accessing grades or records. And while Mother claimed the children were getting the worst grades they ever had, Father presented evidence that the children's grades had improved since he was awarded custody. As to the children's healthcare and medical information, Father provided documentation that he notified Mother about each of the children's appointments, and Mother admitted that Father gave her at least some of the children's medical information. And in any event, the custody order in effect provided that Father had sole medical decisionmaking authority. Mother also emphasizes the improvements in her mental health. While Mother has undergone mental-health treatment and completed Dr. Byrd's recommendations, so has Father.
[¶19] Mother also draws her own conclusions from Dr. Byrd's July 2022 report and makes her own assertions about what the report "demonstrated" and "yielded." Id. at 24, 31, 34, 37. In both her testimony and briefs, Mother cites portions of the report that support her contentions, but when it comes to portions that reflect negatively on her, she attacks the report because it's over a year-and-a-half old. Tellingly, one thing Mother doesn't address from the report is Dr. Byrd's observation that joint physical custody would be "virtually impossible" given the distance between the parents' homes and his recommendation that she consider moving closer to Seymour. At the hearing, Mother admitted that she wasn't exercising midweek visitation because of the distance, and despite Dr. Byrd's recommendation, she said she had "no intentions" of moving to Seymour-"[n]ot ever." Tr. p. 208.
[¶20] There is ample evidence to support the trial court's conclusion that Mother failed to meet her statutory burden, and we will not give more weight to Mother's self-serving version of events than the trial court did. See Reel v. Reel, 231 N.E.3d 915, 924 (Ind.Ct.App. 2024) ("In short, Mother focuses on the evidence that is least favorable to the trial court's ruling.... We must decline Mother's request to reweigh evidence bearing on Child's best interests."). The trial court did not abuse its discretion in denying Mother's petition for modification of custody.
In its January 2024 order, the trial court also denied a petition by Mother to hold Father in contempt. While Mother challenges this determination as well, she doesn't state the applicable standard of review for a contempt determination, and her contempt argument includes no citations to any authorities, statutes, or the record. See App. R. 46(A)(8)(a)-(b). Thus, this argument is waived. See Pierce, 29 N.E.3d at 1267 ("A litigant who fails to support his arguments with appropriate citations to legal authority and record evidence waives those arguments for our review.").
[¶21] Affirmed.
Weissmann, J., and Foley, J., concur.