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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 28 2017, 7:11 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Darlene R. Seymour                                      Robert D. Wickens
Ciyou & Dixon, P.C.                                     Wickens & Wickens, LLC
Indianapolis, Indiana                                   Greensburg, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Marriage of                                   December 28, 2017
                                                        Court of Appeals Case No.
H.M.A.,                                                 03A01-1708-DR-1684
Appellant-Petitioner,                                   Appeal from the Bartholomew
                                                        Superior Court
        v.
                                                        The Honorable Timothy B. Day,
                                                        Special Judge
A.D.A.,
                                                        Trial Court Cause No.
Appellee-Respondent.                                    03D02-1206-DR-2868




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017         Page 1 of 9
                                                 Case Summary
[1]   H.M.A. (“Mother”) and A.D.A. (“Father”) have one child between them, G.A.

      (“Child”), who was born on January 21, 2006. When Child was born, Mother

      and Father were in the process of dissolving their marriage. The trial court later

      entered a dissolution decree that, inter alia, awarded Mother primary physical

      custody and sole legal custody. The instant case arises from a petition to

      modify custody, which Father filed in early 2017. Following a hearing, the trial

      court entered a modified custody order under which Father has primary

      physical custody and Mother and Father have joint legal custody. Mother now

      appeals, presenting the sole restated issue of whether the trial court abused its

      discretion in modifying the physical custody arrangement.1


[2]   We affirm.


                                    Facts and Procedural History
[3]   By the time Child was born in 2006, Mother and Father were in the process of

      dissolving their marriage of several years. The trial court entered a dissolution

      decree on November 14, 2006, at which time the trial court ordered that Mother

      have primary physical custody and sole legal custody—an arrangement to

      which Mother and Father had agreed through a partial settlement agreement.




      1
          Neither party directs argument to the trial court’s decision to establish joint legal custody.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017             Page 2 of 9
[4]   Thereafter, Mother and Father married other people, and Father became a

      parent to six additional children, one of whom is in Child’s grade level. Child

      regularly spent time with Father and his family, who lived about a seventy-five

      minute drive away from Mother.


[5]   Near the end of Child’s fourth-grade year at a public school in Columbus,

      Mother became concerned about Child’s safety, privacy, and well-being

      because of a bathroom policy in place at Child’s school. Mother researched

      other schools and decided that Child would attend an online school for fifth

      grade, which Child began attending in August of 2016. Child’s attendance at

      the new school generated an unexpected workload, with Child studying as

      many as seven days per week and, at times, more than twelve hours per day.

      Child disliked attending the online school, which was a source of tension

      between Child and Mother, and Child began to lose touch with her friends from

      the public school. The educational arrangement also produced tension between

      Mother and Father, who already had a strained relationship.


[6]   Father filed the instant petition to modify custody on January 17, 2017, and a

      hearing was held on June 30, 2017. At the hearing, Father sought primary

      physical custody and indicated that he would like joint legal custody. Evidence

      adduced at the hearing included testimony from Child’s Guardian Ad Litem

      (the “GAL”), who recommended that Father have primary physical custody.

      The trial court took the matter under advisement, and ordered that Father have

      primary physical custody and that Mother and Father have joint legal custody.



      Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017   Page 3 of 9
[7]   This appeal ensued.



                                Discussion and Decision
[8]   We review an order modifying child custody for abuse of discretion, Wilson v.

      Myers,
997 N.E.2d 338, 340
 (Ind. 2013), which occurs when the trial court’s

      decision is against the logic and effect of the facts and circumstances before it,

      including the reasonable inferences to be drawn therefrom. Truelove v. Truelove,
855 N.E.2d 311, 314
 (Ind. Ct. App. 2006). Moreover, where, as here, the trial

      court has, sua sponte, entered written findings and conclusions, we “shall not set

      aside the findings or judgment unless clearly erroneous,” and we must give

      “due regard . . . to the opportunity of the trial court to judge the credibility of

      the witnesses.” Ind. Trial Rule 52(A). As to the issues covered by the findings,

      we apply the two-tiered standard of “whether the evidence supports the

      findings, and whether the findings support the judgment.” Steele-Giri v. Steele,
51 N.E.3d 119, 123
 (Ind. 2016). We review remaining issues under the general

      judgment standard, whereby we affirm the judgment if it can be sustained “on

      any legal theory supported by the evidence.”
Id. at 123-24
. Furthermore, in

      conducting our review, we consider the evidence in a light most favorable to the

      judgment,
id. at 124
, remaining mindful of the “well-established preference in

      Indiana ‘for granting latitude and deference to our trial judges in family law

      matters.’”
Id.
 (quoting In re Marriage of Richardson,
622 N.E.2d 178
 (Ind. 1993)).


[9]   Pursuant to Indiana Code Section 31-17-2-21(a), the trial court “may not

      modify a child custody order unless: (1) the modification is in the best interests

      Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017   Page 4 of 9
of the child; and (2) there is a substantial change in one . . . or more of the

factors that the court may consider” in making an initial custody determination.
Ind. Code § 31-17-2-21
(a). In making an initial custody determination, the trial

court “shall consider all relevant factors,” and our legislature has identified a

non-exhaustive list of factors that bear on a custody determination, including:


        (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.



Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017   Page 5 of 9
               (6) The mental and physical health of all individuals involved.


       I.C. § 31-17-2-8. The trial court must consider these factors before modifying

       custody, I.C. § 31-17-2-21(b), but it need not (1) specify the factor(s) that

       substantially changed or (2) explain why modifying custody is in the child’s best

       interests. In re Paternity of P.R.,
940 N.E.2d 346, 351
 (Ind. Ct. App. 2010)

       (citing Kanach v. Rogers,
742 N.E.2d 987, 989
 (Ind. Ct. App. 2001)). Moreover,

       the parent seeking to modify custody bears the burden of demonstrating that

       modification is warranted. Kirk v. Kirk,
770 N.E.2d 304, 307
 (Ind. 2002).


[10]   Mother argues that the trial court abused its discretion in modifying physical

       custody of Child, asserting that Father “presented no evidence of any

       substantial change in circumstances.” Appellant’s Br. at 11. Although the trial

       court did not expressly identify a substantially changed circumstance, the court

       observed that Child “did not adjust well to being home schooled by [M]other.”

       App. Vol. II at 16. Furthermore, there was significant testimony directed to

       Child’s poor adjustment to the change in schooling. See I.C. § 31-17-2-8

       (identifying adjustment to school as a factor relevant to a custody

       determination). The GAL testified that, from Child’s perspective, the school

       year had been “terrible” and that it had “affected [Child] in a lot of different

       ways.” Tr. at 7. Indeed, Mother acknowledges that there was a “dispute about

       school” that affected her relationship with Child. Appellant’s Br. at 12. The

       GAL testified that “[t]here wasn’t a lot of guidance” as Child completed the

       online work, and Child “got away with what she could get away with.” Tr. at

       20-21. According to Father, once Child got behind in her schoolwork, Child
       Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017   Page 6 of 9
       “lost complete interest in the program” and “kind of put herself down.” Tr. at

       34. The evidence also indicates that the online program affected Child socially,

       as she lost touch with friends and spent long hours catching up on her work.


[11]   In her appellate briefs, Mother focuses on caselaw supporting the principle that

       “a child’s wishes, standing alone, cannot support a change in custody.”

       Appellant’s Br. at 13. Mother asserts that Father’s request for custody “had

       nothing to do with [Child’s] education and everything to do with [Child’s]

       desires,” and she posits that “everyone in this case simply wanted to please an

       eleven-year[-]old child, including the trial court.” Id. at 14. Yet, irrespective of

       Father’s motivations, the evidence supports a reasonable conclusion that there

       had been a substantial change regarding Child’s adjustment to her school,

       which is a relevant factor expressly identified by our legislature. See I.C. § 31-

       17-2-8. Moreover, to the extent Mother argues that any change was not

       substantial because Child’s welfare was not “in danger,” Appellant’s Br. at 12,

       Indiana law does not impose this requirement. See I.C. §§ 31-17-2-21(a), -2-8.2


[12]   Mother also challenges the trial court’s determination that custody modification

       was in Child’s best interests. Mother argues that she had always been Child’s




       2
         In setting forth a standard for custody modification, Mother cites to Swonder v. Swonder,
642 N.E.2d 1376
       (Ind. Ct. App. 1994), for the proposition that modification must be “necessary for the welfare of the child
       involved.” Appellant’s Br. at 10. However, subsequent to the underlying hearing in Swonder, our legislature
       revised the standard for custody modification, see Swonder,
642 N.E.2d at 1379
 n.1, and enacted the current
       two-part “best interests” and “substantial change” framework for custody modification. Compare I.C. § 31-1-
       11.5-22(d) (1993) (permitting custody modification “only upon a showing of changed circumstances so
       substantial and continuing as to make the existing custody order unreasonable”) with I.C. § 31-1-11.5-22(d)
       (1994); see also Joe v. Lebow,
670 N.E.2d 9, 17-21
 (Ind. Ct. App. 1996) (analyzing aspects of the revisions).

       Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017          Page 7 of 9
       primary caregiver, and that Father had been less involved in Child’s life. Thus,

       according to Mother, to promote continuity and stability in Child’s life, it was

       in Child’s best interests for Mother to retain primary physical custody. Mother

       also directs us to evidence indicating that she had planned to send Child to a

       private school, rectifying what, “in hindsight, may have [been] a poor

       decision.” Appellant’s Br. at 12. She asserts that “[i]f a custodial parent were

       to be judged upon one regrettable decision, changes in custody would be in a

       constant state of flux.” Reply Br. at 6. Additionally, Mother highlights

       evidence indicating that Father discusses mature topics with Child, and she

       argues that Father improperly treats Child “as an adult” rather than “acting in

       her best interest as a young child.” Appellant’s Br. at 11.


[13]   Yet, we are not free to reweigh the evidence, see Best v. Best,
941 N.E.2d 499, 502
 (Ind. 2011), which indicates that Child has a close relationship with Father,

       and was well adjusted to Father’s home, where she would be able to attend

       school with a sibling. Moreover, the GAL testified that Child was “very vocal

       about wanting to live with [Father],” Tr. at 6, where, in the wake of the

       previous school year, Child felt “socially . . . more connected” and

       “[a]cademically . . . more secure and stable.” Tr. at 7. Here, the change in

       schooling impacted multiple aspects of Child’s life. Although Mother was

       prepared to bring back a sense of academic stability and social connectedness as

       Child entered sixth grade, viewing the evidence in a light most favorable to the

       judgment, we cannot say that the trial court clearly erred in determining that

       modifying physical custody was in Child’s best interests. See Kirk, 770 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 03A01-1708-DR-1684 | December 28, 2017   Page 8 of 9
       at 308 (observing that stability, including stability in schooling, constitutes a

       “substantial determinant” in evaluating the best interests of a child).



                                              Conclusion
[14]   The trial court did not abuse its discretion in modifying physical custody.


[15]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




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