Opinion
23A-DC-2965
08-14-2024
Kirstin Marie Wallace, Appellant v. Timothy John Wallace, Appellee
ATTORNEY FOR APPELLANT Andrea L. Ciobanu Ciobanu Law, P.C. 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Regina Tidwell, Magistrate Trial Court Cause No. 49D03-1807-DC-29869
ATTORNEY FOR APPELLANT Andrea L. Ciobanu Ciobanu Law, P.C. Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] Kirstin Marie Wallace ("Mother") appeals the trial court's order modifying child custody. We affirm.
Facts and Procedural History
[¶2] Mother and Timothy John Wallace ("Father") are the parents of daughter A.W., age eleven, and son J.W., age nine. J.W. is diagnosed with Autism Spectrum Disorder. Father filed a petition for dissolution of the parties' marriage in July 2018, and in July 2019, the trial court issued its order approving the parties' "Mediated Partial Final Settlement Agreement Regarding Custody, Parenting Time, Child Support, Expert and Attorney Fees and Dissolution of Marriage" (the "Settlement Agreement"). Appellant's Appendix Volume II at 40. Pursuant to the Settlement Agreement, Father was granted primary physical custody of J.W., and Mother was granted primary physical custody of A.W. The Settlement Agreement provided that "[t]he parties shall share legal custody of both children with the parent having primary physical custody having the 'tie-breaking vote' in the event the parties cannot agree on a joint legal decision." Id. at 41. The Settlement Agreement also provided that "[Father] shall have the final decision about [J.W.'s] schooling and [Applied Behavioral Analysis ("ABA")] services .... The parties agree that [J.W.] will receive ABA services; OT; Speech Therapy; special education/IEP as well as exposure to peer typical children until otherwise recommended by his providers or until no longer covered by insurance or Medicaid." Id. at 42.
[¶3] Following the trial court's approval of the Settlement Agreement, the court held a final hearing to address additional issues, including a dispute that arose over the educational and therapeutic plan for J.W. because Father planned to enroll J.W. in forty hours per week of ABA therapy. Mother argued to the court that Father's plan violated the Settlement Agreement because the ABA services would not be administered at a school with opportunities for concurrent exposure to peer-typical children. Father and Mother brought the dispute to court-approved parenting coordinator, Lara Pendoski, who prepared and filed a report that recommended following Father's plan for J.W.
[¶4] In its final order, the court adopted Pendoski's recommendation, determining that Father's plan for J.W. was not contrary to the Settlement Agreement. On appeal, this Court affirmed the trial court's order by memorandum decision in T.J.W. v. K.M.W., No. 19A-DC-2167, 2020 WL 939249 (Ind.Ct.App. Feb. 27, 2020). We held in relevant part:
The trial court ultimately concluded that "the agreement at issue does not require contemporaneous exposure to peer typical children and in [J.W.'s] educational curriculum only." We agree. Although the agreement specified that [J.W.] "will receive" several types of services, the agreement did not specify how much time was to be allocated to each service or whether those services were to be rendered concurrently-or in a particular order. Moreover, the agreement gave Father final decision-making authority regarding ABA services. There was evidence that Father selected an ABA service provider and planned to follow its recommendations for [J.W.]. He was also exploring alternative ways to provide exposure to peer-typical children. Furthermore, Father had "indicated that if [the
provider of ABA services] were to recommend school and . . . special education services, . . . that's what he would follow, that recommendation." There was evidence that, if the provider did not recommend school and special education, the goal of the ABA services would be to "prepare [J.W.] for that situation." Moreover, Father anticipated that [J.W.] "would have an IEP and special education services in the future."
We conclude that the plan was consistent with the provisions merged into the dissolution decree. Thus, we cannot say the court erred in allowing the plan.Id. at *4 (record citations and footnote omitted).
[¶5] On January 12, 2022, Father filed a notice of intent to relocate from Indianapolis to Fishers. In the notice, he stated that he did not believe his relocation would negatively affect parenting time due to Mother's residence being in Winchester, and the commute between homes would be reduced by at least thirty minutes. He further stated that J.W. was currently attending Bierman ABA Autism Center full-time in Indianapolis and that he intended to enroll J.W. in the Hamilton Southeastern ("HSE") school district in the Fall of 2022.
The record indicates that an Individualized Education Plan ("IEP") was formulated for J.W. and he attended Indianapolis Public Schools for a brief period beginning in January 2022 during which he received concurrent ABA and educational services. Father subsequently moved to Fishers and J.W. began elementary school at HSE.
[¶6] On January 19, 2022, Mother filed a petition to modify custody and child support seeking primary physical custody of J.W. In relevant part, Mother complained that Father had "no intention of providing [J.W.] with the combination of schooling and ABA services agreed upon" in the Settlement Agreement. Appellant's Appendix Volume II at 54. The court appointed a guardian ad litem ("GAL") to protect the best interests of both children. On February 14, 2023, Father filed a petition to modify custody seeking primary physical custody of both children, sole legal custody of J.W., and final decisionmaking authority regarding legal custody of A.W. The GAL prepared and filed four separate reports with the court in July 2022, March 2023, July 2023, and August 2023.
[¶7] The court held an evidentiary hearing beginning on August 10, 2023. In support of her request for modification, Mother argued that Father has failed to expose J.W. to peer typical children as contemplated by the Settlement Agreement, that J.W.'s current therapeutic and educational plan is deficient, and Father had placed him in jeopardy of being considered a truant. In support of his request for modification, Father argued that Mother continues to challenge and disagree with his therapeutic and educational decisions regarding J.W., and that Mother had alienated A.W.'s affections from him which is causing a negative impact on A.W.'s mental health. Each party testified and presented numerous witnesses on his or her behalf, including the GAL, who was called by Mother. Regarding J.W., the GAL opined that although the situation was not ideal due to the limitations of the HSE school district, J.W. was receiving the therapeutic and educational services he needed with Father and her investigation revealed that J.W. was not in jeopardy of being considered truant. Regarding A.W., the GAL testified that A.W. is doing well in Mother's custody but expressed concerns with Mother's mental health and her acts of alienation which impact A.W.'s ability to have a relationship with Father. She noted that Mother "has not done everything [she possibly could] to foster" the relationship between Father and A.W. Transcript Volume II at 136. The GAL testified that she had safety concerns with both children living in the same house due to J.W.'s self-injurious and aggressive behaviors so she did not recommend that one parent be granted primary physical custody of both children. The GAL recommended that the parties continue their split physical custodial arrangement with Father retaining primary physical custody of J.W. and Mother retaining primary physical custody of A.W.
The record reveals that A.W. has recently suffered from ongoing suicidal ideation that Mother failed to notify Father about before he took both children out of town on vacation.
[¶8] At the conclusion of the hearing, and in response to Mother's request, the court entered findings of fact and conclusions thereon pursuant to Ind. Trial Rule 52(A). In relevant part regarding Mother's request for modification of J.W.'s physical custody, the court concluded that "[b]ased on the evidence presented[,] the issues and concerns that Mother raised do not amount to a substantial change in circumstances which justifies modifying the primary physical custody of [J.W.]." Appellant's Appendix Volume III at 179. In relevant part regarding Father's request for modification of J.W.'s legal custody, the court concluded that due to the "ongoing contentiousness and toxicity between the parents surrounding [J.W.], the court finds that there has been a substantial and continuing change in circumstances which no longer makes the parties sharing joint legal custody of [J.W.] in his best interest." Id. at 180. Accordingly, the court concluded "Father shall have sole legal and primary physical custody of [J.W.]" Id.
[¶9] As to Father's request for modification of physical and legal custody of A.W., the court found "Father has not met his burden of proof demonstrating that a substantial change has occurred which changes the primary physical custody of [A.W.]" Id. at 182. However, it determined that "a substantial change has occurred in which the modification of the existing [Settlement Agreement] custodial arrangement for [A.W.] is appropriate." Id. The court determined that although the parties would continue to "share joint legal custody of [A.W.,]" "[t]he current 'tie-breaking' final decision for Mother shall be eliminated." Id. at 182-183.
Discussion
[¶10] Mother contends that the trial court abused its discretion in denying her request for primary physical custody of J.W. and in granting Father's request for modification of the legal custody arrangement regarding both children. She also argues that the trial court's order fails to comply with Ind. Trial Rule 52A.
[¶11] We begin by noting that Father did not file an appellee's brief. When an appellee fails to submit a brief, we may in our discretion reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. Wright v. Wright, 782 N.E.2d 363, 366 (Ind.Ct.App. 2002). Prima facie error is "an error at first sight, on first appearance, or on the face of it." Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind.Ct.App. 2006). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Wright, 782 N.E.2d at 366. "Still, we are obligated to correctly apply the law to the facts in the record to determine whether reversal is required." Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind.Ct.App. 2014).
[¶12] We review custody modifications for abuse of discretion, with a preference for granting latitude and deference to trial judges in family law matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). 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. "[W]e 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 ...." Id. (citation omitted). Therefore, on appeal we will not "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).
[¶13] Here, Mother made a written request for special findings and conclusions thereon pursuant to Indiana Trial Rule 52(A). When a trial court enters findings of fact pursuant to this rule, we review for clear error, first determining whether the evidence supports the court's findings of fact and, second determining whether those findings support the trial court's conclusions thereon. In re the Paternity of M.G.S., 756 N.E.2d 990, 996 (Ind.Ct.App. 2001), trans. denied. To the extent Mother does not challenge the trial court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.Ct.App. 2007), trans. denied. "[E]ven an erroneous finding is not fatal to a trial court's judgment if the remaining valid findings and conclusions support the judgment, rendering the erroneous finding superfluous and harmless as a matter of law." M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1074 (Ind.Ct.App. 2005). Although it is not impossible to reverse a trial court's decision regarding child custody on appeal, "given our deferential standard of review, it is relatively rare." Hecht v. Hecht, 142 N.E.3d 1022, 1029 (Ind.Ct.App. 2020).
[¶14] Generally, Ind. Code § 31-17-2-21 provides 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 or more of the factors the court may consider under Ind. Code § 31-17-2-8. Those factors are:
We note that in its findings and conclusions, the trial court mistakenly references Ind. Code § 31-14-13-2 and -6 which are applicable in paternity proceedings as opposed to post-dissolution decree proceedings. The relevant language of these statutes is the same.
(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.
(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 ....
[¶15] Mother first argues that the trial court abused its discretion in denying her request for modification as to the physical custody and final decision-making authority regarding J.W. She contends that the evidence presented revealed a "substantial change in one or more statutory factors," including J.W.'s age, his adjustment to school, and his mental and physical health, and that it was in "J.W.'s interest that [she] have primary physical custody." Appellant's Brief at 13, 18. She argues "the parties had agreed that J.W. needed to receive multiple services for his special needs and Father failed to provide most of these services during his custody of J.W. even when they were universally recommended by J.W.'s providers." Id. at 18. She maintains that the superiority of the plan she presented to the trial court for her to provide the agreed upon services for J.W. necessitates modification of physical custody in her favor.
[¶16] Our review of the record reveals ample evidence to support the trial court's findings of fact and conclusions thereon denying Mother's modification request. Mother's request focuses on Father's alleged failure to provide J.W. with concurrent therapeutic and educational services. The trial court took judicial notice of this Court's prior decision on this issue, specifically noting that despite our determination "that Father was correctly exercising his discretion regarding [J.W.,] Mother is still dissatisfied with Father's approach to addressing educational issues and behavioral therapy surrounding [J.W.]" and the "issues she raise[s] [in the current modification request] are essentially the same ones raised in her appeal." Appellant's Appendix Volume III at 176. Essentially, Mother asserts that there has been a substantial change in circumstances simply because she has formulated and sought out a therapeutic and educational plan for J.W. in Winchester where he could receive recommended therapeutic services in a school setting. She argues that the undisputed evidence indicates that "Father has not provided J.W. with the services agreed upon in the Settlement Agreement." Appellant's Brief at 15. However, we reiterate that the Settlement Agreement gives Father discretionary authority regarding J.W.'s services and the agreement does not require therapeutic and educational services to be rendered concurrently. See T.J.W., 2020 WL 939249 at *4. The trial court acknowledged Mother's plan for J.W., finding that her plan was not necessarily "superior" and that it was merely "different than Father's plan." Appellant's Appendix Volume III at 179.
[¶17] Father presented evidence that, although he ideally wanted to incorporate the therapeutic and educational component together in alignment with Mother's wishes and the recommendation of several service providers, J.W.'s current school does not allow for the provision of those services contemporaneously. Accordingly, Father is meeting J.W.'s needs by having him attend elementary school during the day and receive therapeutic services in the evenings. Father presented evidence that he facilitates J.W.'s interaction with peer typical students by keeping him active in the Best Buddies Program. The record indicates that Father has repeatedly advocated to the HSE school system to allow for therapeutic services during the school day, but he has been unsuccessful and has instead been providing those services separately. Father testified that the therapy has gone well and he has seen some improvement in J.W.'s behaviors. We cannot say the trial court's conclusion that Mother has not demonstrated a substantial change in circumstances justifying modification of primary physical custody of J.W. is clearly erroneous.
In her brief, Mother emphasizes that J.W. "was not receiving any ABA services" at the time of the final hearing. Appellant's Brief at 16. Our review reveals that J.W.'s ABA therapist had been promoted to a different position and that Father was seeking a new therapist. Contrary to Mother's suggestion, we have no reason to believe that Father does not intend to follow through with that plan.
[¶18] Moreover, even assuming a substantial change in one or more of the statutory factors, a trial court may not modify an existing custody order unless the modification is in the best interests of the child. Ind. Code § 31-17-2-21. The entirety of Mother's argument suggests that the only valid consideration for J.W.'s best interest is his ability to be "enrolled in a school that provides ABA services in the classroom[.]" Appellant's Brief at 23. Mother is mistaken.
[¶19] Father presented evidence that he and J.W. are quite bonded and that J.W. is doing well in his care. Both the GAL and the ABA therapist observed that J.W. has less difficulty with compliance, communication, and self-injurious behavior when he is with Father. Specifically, therapist Chloe Scott, who supplied ABA services to J.W. and observed him in both Father's and Mother's homes, testified that J.W. is more communicative with Father than with Mother, "acts more independently" and is more loving in Father's home, and Father "does a nice job" of controlling J.W.'s self-injurious behavior. Transcript Volume IV at 19. Indeed, Father testified that he believes that Mother cannot adequately control J.W.'s physical outbursts. Mother concedes that the GAL, the individual specifically tasked with representing J.W.'s best interests, recommended that Father retain physical custody of J.W. Nevertheless, she urges us to weigh more heavily the opinion testimony of her witnesses that J.W.'s physical custody should be changed. As noted above, we will not "reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment." Best, 941 N.E.2d at 502. The trial court did not clearly err in concluding that modification of primary physical custody of J.W. to Mother was not in his best interest.
In addition, the evidence supports the trial court's finding that it is not in A.W.'s best interest to reside in the same home with J.W. due to safety concerns. Accordingly, the evidence supports the trial court's ultimate conclusion that it is in neither child's best interest for one parent to have primary physical custody of both children.
[¶20] Mother next asserts the trial court abused its discretion in awarding Father sole legal custody of J.W. and in granting Father's request to modify the parties' legal custody arrangement regarding A.W. by eliminating Mother's final decision-making authority, or "tie breaking vote," in the event of the parties' disagreement over a joint legal decision as to A.W. Appellant's Brief at 31.
[¶21] Regarding the trial court's decision to award Father sole legal custody of J.W., Mother acknowledges that "[o]ne of the key factors to consider when determining whether joint legal custody is appropriate is 'whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare.'" Carmichael v. Siegel, 754 N.E.2d 619, 635 (Ind.Ct.App. 2001) (citing Ind. Code § 31-17-2-15(2)). She suggests that Father did not meet his burden of proving that the existing joint legal custody order should be altered. See Montgomery v. Montgomery, 59 N.E.3d 343, 350 (Ind.Ct.App. 2016) (noting the "more stringent standard" required to support a change in custody, as opposed to an initial custody determination).
[¶22] The court here specifically found that "ongoing conscientiousness and toxicity between the parties surrounding [J.W.]" constituted a "substantial and continuing change in circumstances" rendering the existing joint legal custody arrangement contrary to J.W.'s best interest. Appellant's Appendix Volume III at 180. The court further found that "Mother and Father are continuously at odds surrounding" J.W.'s "medical and educational needs" and they are "incapable of coparenting when it comes to those matters. Thus, it is in [J.W.'s] best interest to have a sole parent making decisive decisions regarding his wellbeing." Id. at 180. Mother claims that there is no evidence that she "was uncooperative in legal custody issues" and simply suggests that "[t]o the extent there have been difficulties in communicating," Father is to blame. Appellant's Brief at 29.
[¶23] Based upon the testimony of several witnesses, including the GAL, the court found "Father is the more pragmatic and reasonable parent when making decisions" and thus, it is in J.W.'s best interest "that Father shall have sole legal and primary physical custody for [J.W.] subject to Mother's parenting time[.]" Appellant's Appendix Volume III at 180. Our review of the record confirms the trial court's finding in this regard. Given the contentiousness between these parties as reflected in the record, we have little difficulty agreeing with the trial court's determination that the animosity between Mother and Father has changed and escalated since the original custody order which renders the joint legal custody arrangement regarding J.W. to be untenable. We cannot say that the trial court abused its discretion in awarding sole legal custody of J.W. to Father.
[¶24] Finally, with regard to the trial court's elimination of Mother's tie-breaking vote as to legal decisions for A.W., Mother again has not demonstrated an abuse of discretion. The evidence indicates that Mother has been resistant to recommendations from professionals who have been enlisted to assist the family dynamic, including recommendations in the best interest of A.W., such as it being imperative that Mother notify Father regarding the state of A.W.'s mental health when he is exercising parenting time. As found by the trial court, rather than follow recommendations of service providers, "Mother will search for persons who align with her thought processes which may not be in the best interests of A.W." Appellant's Appendix Volume II at 183. We cannot say that the trial court abused its discretion in concluding that Mother's behavior constituted a substantial change in circumstances warranting modification of the legal custody arrangement regarding A.W. In sum, Mother has not demonstrated that this is one of the "relatively rare" cases warranting appellate reversal of the trial court's decision regarding child custody. See Hecht, 142 N.E.3d at 1029.
[¶25] To the extent Mother argues reversal is warranted because the trial court "did not enter an order in compliance with T.R. 52A adequate to permit meaningful appellate review," Appellant's Brief at 34, we must disagree. "[T]he purpose of Rule 52(A) is to provide the parties and the reviewing court with the theory upon which the trial judge decided the case in order that the right of review for error may be effectively preserved." M.G. v. S.K., 162 N.E.3d 544, 549 (Ind.Ct.App. 2020). The trial court here entered a detailed thirteen-page order which evidences its thoughtful consideration of the extensive evidence presented by the parties over the course of three days. The order makes clear that the court applied the correct legal standard and considered the required statutory factors.The court further made explicit findings and conclusions that its order is in both children's best interests. We find no error.
As already noted, the trial court's mistaken reference to Ind. Code § 31-14-13-2 and -6 is inconsequential.
[¶26] For the foregoing reasons, we affirm the judgment of the trial court.
[¶27] Affirmed.
May, J., and Pyle, J., concur.