Opinion
Court of Appeals Case No. 49A02-1609-DR-2092
05-30-2017
John L. Nichols, II, Appellant-Respondent, v. Lynette P. Nichols, Appellee-Petitioner.
ATTORNEY FOR APPELLANT Jaimie L. Cairns Cairns & Rabiola, LLP Indianapolis, Indiana ATTORNEY FOR APPELLEE Maria Matters Maria Matters Attorney at Law LLC Indianapolis, Indiana
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT Jaimie L. Cairns
Cairns & Rabiola, LLP
Indianapolis, Indiana ATTORNEY FOR APPELLEE Maria Matters
Maria Matters Attorney at Law LLC
Indianapolis, Indiana Appeal from the Marion Superior Court The Honorable James A. Joven, Judge The Honorable Kimberly Dean Mattingly, Magistrate Trial Court Cause No. 49D13-1401-DR-1639 Najam, Judge.
Statement of the Case
[1] John Nichols, II ("Father") appeals the trial court's denial of his petition for modification of custody of his children following the dissolution of his marriage to Lynette Nichols ("Mother"). Father presents three issues for our review:
1. Whether the trial court abused its discretion when it denied his petition to modify custody.[2] We affirm.
2. Whether the trial court abused its discretion when it denied his motion to modify parenting time.
3. Whether the trial court abused its discretion when it admitted into evidence a deposition given by a therapist who was not subpoenaed to testify at the hearing.
Facts and Procedural History
[3] Father and Mother were married, and they have three children together, A.N., M.N., and J.N. On January 23, 2014, Mother filed a petition for dissolution of the parties' marriage. Following a final hearing on February 4, 2015, the trial court entered the final dissolution decree on April 15, 2015. In that decree, the court ordered that the parties would share legal custody of the children, granted physical custody of the children to Mother, and granted parenting time to Father. On September 29, 2015, Father filed a petition for modification of custody. Following a hearing on July 19, 2016, the trial court denied Father's petition for modification of custody. This appeal ensued.
Discussion and Decision
Issue One: Modification of Custody
[4] Father first contends that the trial court abused its discretion when it denied his petition for modification of custody. As our Supreme Court has explained,
[u]nder Indiana Code Ann. § 31-17-2-21 (West 2001), a court may not modify a child custody order unless modification is in the child's best interests and there is a substantial change in one of several factors that a court may consider in initially determining custody.[] In the initial custody determination, both parents are presumed equally entitled to custody, but a petitioner seeking subsequent modification bears the burden of demonstrating the existing custody should be altered. Under Ind. Code Ann. § 31-14-14-2 (West 2000), "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child."
We review custody modifications for abuse of discretion, with a "preference for granting latitude and deference to our trial judges in family law matters." In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind. 1993) (affirming trial court judgment shifting primary custody of children to father). 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. Id. at 179 (citing Ind. Trial Rule 52(A)).
We explained the reason for this deference in Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965) (footnote omitted):
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.
Kirk v. Kirk, 770 N.E.2d 304, 306-07 (Ind. 2002). [5] Indiana Code Section 31-17-2-21 provides:
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. (citations omitted)
(a) The 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 section 8 and, if applicable, section 8.5 of this chapter.
[6] And Indiana Code Section 31-17-2-8 provides:
(b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.
The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining
the best interests of the child, there is no 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 parent or 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 parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
[7] Father contends that he "showed by clear and convincing evidence substantial and continuing changes in three factors: (1) the wishes of the children[, one of whom is fifteen years old], (2) the children's adjustment to school and community, and (3) the interaction and interrelationship of the children with their Mother." Appellant's Br. at 12. In particular, Father maintains that "the uncontroverted evidence" showed that: the children wanted to live with Father; the children had a "strained relationship with Mother"; and M.N.'s and A.N.'s grades had suffered significantly since the dissolution decree was entered. But Father's contentions amount to a request that we reweigh the evidence, which we cannot do. [8] First, while Father presented evidence that A.N. and M.N. wanted to live with him instead of Mother, Father has not directed us to any evidence that their wishes have changed since the initial custody determination. Second, Mother testified that A.N.'s grades had suffered as a result of the transition from middle school to high school, not because he was living with her. And Mother explained that M.N. has poor grades because he is a special needs child. Contrary to Father's testimony that Mother is not doing enough to help M.N. with his school work, Mother has hired a tutor who comes to the house to work with M.N. three times per week, and she testified that she gives a "considerable amount of effort" to help M.N. with his school work. Tr. Vol. 2 at 64. Finally, Father presented evidence that the children's relationships with Mother is "strained," but, again, he does not present evidence that that is a changed circumstance since the initial custody determination, let alone a substantially changed circumstance. And, in any event, Mother testified that she disagreed with Father's characterization of her relationship with the children. Mother testified that the children's behavior had improved significantly since they had been seeing a therapist, and she described their life together at her house as "full of energy." Id. at 62. Father has not demonstrated that the trial court clearly erred when it denied his petition for modification of custody.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
Issue Two: Modification of Parenting Time
[9] Father next contends, in the alternative, that the trial court abused its discretion when it denied his motion to modify his parenting time. In support of that contention, Father cites Indiana Code Section 31-17-4-2, which provides that a court may modify an order granting parenting time rights whenever modification would serve the best interests of the child. Father also directs us to his testimony that he would "get the children to school on time if he had them overnight on a school night." Appellant's Br. at 18; Tr. Vol. 2 at 44. Father maintains that,
[w]hen this testimony is taken into consideration with the facts . . . regarding the children's desires, the children's relationship with Father and Mother, Father's testimony about what he could provide to the children, and the children's decrease in grades [sic], it is clear that the trial court abused its
discretion by not finding that additional parenting time was in the children's best interest.Appellant's Br. at 18. [10] Again, Father's argument on this issue amounts to a request that we reweigh the evidence, which we cannot do. The trial court did not abuse its discretion when it did not order more parenting time with Father.
While Father did not formally move the trial court to modify parenting time, he testified that, if the court did not modify custody, he would like more parenting time. --------
Issue Three: Deposition
[11] Finally, Father contends that the trial court abused its discretion when it admitted into evidence the deposition of a therapist over Father's objection. Father maintains that the deposition was not admissible under Trial Rule 32(A)(3)(d), which requires the party offering the deposition to show that she was unable to procure the attendance of the witness by subpoena. Here, Mother had not subpoenaed the therapist to testify at the hearing, so Father objected to the admission of the deposition. [12] But Father has failed to explain how he was prejudiced by the admission of the deposition. Indeed, as Mother points out, the deposition pertained only to Mother's petition for contempt against Father regarding the court's order that he attend counseling, which the trial court denied. Any error in the admission of the deposition into evidence was harmless. See Ind. Appellate Rule 66(A). [13] Affirmed. Riley, J., and Bradford, J., concur.