MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                        May 14 2015, 8:40 am
Memorandum Decision shall not be regarded as
                                                                           May 14 2015, 8:39 am




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                                   ATTORNEY FOR APPELLEE
Deborah M. Agard                                         Douglas R. Long
Law Office of Deborah M. Agard                           Anderson, Indiana
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                   May 14, 2015
                                                         Court of Appeals Case No.
Leann Palmer (Lawrence),                                 48A04-1405-DR-203
Appellant-Petitioner,                                    Appeal from the Madison Circuit
                                                         Court.
        v.                                               The Honorable Carl E. Van Dorn,
                                                         Special Judge.
                                                         Cause No. 48D03-0712-DR-1413
Jeffrey Palmer,
Appellee-Respondent




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015                Page 1 of 13
[1]   Leann Palmer (Mother) appeals the trial court’s order denying her petition to

      modify the child custody arrangement in place between Mother and Jeffrey

      Palmer (Father). Mother makes a number of arguments, which we consolidate

      and restate as follows: (1) that the trial court erred by declining to name Betty

      Palmer, the children’s paternal grandmother (Grandmother), as a de facto

      custodian and party; and (2) that there is insufficient evidence supporting the

      trial court’s order. Finding no error, we affirm.


                                                       Facts
[2]   Mother and Father were married in 1988 and had two children, A.P., who was

      born in 2001, and B.P., who was born in 2003. On April 18, 2007, the marriage

      was dissolved and Father was named primary custodian of the children. At

      that time, Mother was incarcerated on convictions for five counts of federal

      bank fraud.1


[3]   Since that time, Father and the children have lived with Grandmother. The

      children are enrolled in a parochial school, which they have attended for the

      past three years. Mother does not contribute to the cost of their education or

      healthcare, and she has never paid child support, though Father receives part of

      her disability payments to care for the children.




      1
        As a result of her convictions, Mother is ordered to pay over $429,000 in restitution. Monthly payments on
      this debt are deducted from her disability payments.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015              Page 2 of 13
[4]   A.P. has been diagnosed with Attention Deficit Hyperactivity Disorder

      (ADHD). The school he attends has set up a program to help manage his

      special needs. He has had the same teacher for the past two years, and she

      testified that A.P. has adjusted quite well to school, concentrates much better

      since beginning a medication regimen, and now has many friends. Mother has

      never been involved in the children’s education. A.P. sees a psychiatrist, Dr.

      Sheila Irick, to help manage his medication and his needs. Dr. Irick testified

      that removing A.P. from his school would be harmful, that A.P. is receiving

      exceptional care from Father and Grandmother, and that the weight of both

      children is within normal limits.2 While there was a time when the children

      were not involved in any extracurricular activities because of concerns for A.P.,

      both children are now involved in Boy Scouts and basketball.


[5]   Father has a full-time job that requires his presence at work from approximately

      9 in the morning until 7 or 7:30 in the evening. As a result, he is generally able

      to spend time with the children in the morning before school and in the

      evenings before bed, as well as on the weekends. While Father is at work,

      Grandmother cares for the children. Specifically, she takes A.P. to his doctor

      appointments, communicates with the school about the children, and ensures

      that their needs are met. When Father is at home, he cares for the children.

      When he is able to, he attends medical appointments and always discusses




      2
        Mother testified that she was concerned that the children were underweight, but offered no expert testimony
      to contradict Dr. Irick’s opinion that the children’s weight was healthy.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015              Page 3 of 13
      medical care decisions with Grandmother before those decisions are made.

      The children are bonded to both Father and Grandmother.


[6]   At some point, Mother was released from incarceration. Since that time, she

      has called the police on Father, resulting in charges against him that were later

      dismissed, and called Child Protective Services on Father, resulting in

      allegations that were unsubstantiated. On one occasion, Mother went to the

      children’s school, where she screamed and verbally attacked teachers and

      school personnel, resulting in her being escorted from the school premises.

      Mother complains that she has been unable to access the children’s school,

      medical, and mental health records, but that has since been rectified. Father

      has never been held in contempt for any failure to abide by the custody order in

      place. Mother testified that if she got custody, she would consider moving the

      boys to a different school or home schooling them, which Dr. Irick opined

      would not be in their best interests.


[7]   On September 19, 2011, Mother filed a petition to modify the child custody

      arrangement, seeking to be named the primary custodian. Mother asked that a

      Guardian ad Litem (GAL) be named to represent the children’s interests, and

      the trial court granted that request, appointing a GAL on March 5, 2012. The

      GAL filed a report with the trial court on May 21, 2012, and filed a

      supplemental report on August 7, 2012. The GAL recommended that Mother

      and Father share joint legal custody but that Father remain the primary physical

      custodian, with Mother to have liberal parenting time while Father is at work.



      Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015   Page 4 of 13
[8]    On March 5, 2013, Mother filed a second petition to modify the child custody

       arrangement, seeking to be named the primary custodian. According to

       Mother, the second petition was filed because no hearing had been held on the

       first.3


[9]    On four days between August 28, 2013, and January 27, 2014, the trial court

       held an evidentiary hearing on the motion to modify. The parties submitted

       proposed findings of fact and conclusions of law, and on April 8, 2014, the trial

       court entered its order denying Mother’s motion to modify. Mother now

       appeals.


                                    Discussion and Decision
                                      I. De Facto Custodian
[10]   Mother first argues that the trial court erred by declining to find that

       Grandmother is the children’s de facto custodian and naming her a party to the

       litigation. “De facto custodian” is defined as “a person who has been the

       primary caregiver for, and financial support of, a child who has resided with the

       person” for at least one year for children over the age of three. Ind. Code § 31-

       9-2-35.5. If it is established “by clear and convincing evidence that a child has

       been cared for by a de facto custodian,” then certain factors must be considered.

       Ind. Code § 31-17-2-8.5. If, having considered all relevant factors, the trial




       3
        The Chronological Case Summary shows that another motion to modify custody, support, and visitation
       was filed by Mother on June 26, 2013, but this pleading does not appear in the Appellant’s Appendix.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015         Page 5 of 13
       court “determines that a child is in the custody of a de facto custodian, the court

       shall make the de facto custodian a party to the proceeding.” I.C. § 31-17-2-

       8.5(c). In other words, even if a child has been cared for by a de facto

       custodian, that person is not a required party unless the trial court determines

       that the child was actually “in the custody” of the de facto custodian.


[11]   In this case, Mother never requested that the trial court find Grandmother to be

       a de facto custodian of the children. Indeed, her proposed findings of fact and

       conclusions of law make no mention of this issue. Consequently, she has

       waived it for purposes of this appeal.


[12]   Waiver notwithstanding, we note that in any event, Mother failed to meet her

       burden of establishing by clear and convincing evidence that Grandmother was

       a de facto custodian. Instead, the record reveals that Grandmother cared for

       the children while Father was at work, including managing their medical

       appointments and educational needs. But when Father was home, he was also

       a caregiver for the children, he kept apprised of what was happening in the

       children’s lives, and he attended medical appointments and school events when

       he was able to. This is a common situation when any parent has a full-time job,

       and in this case, the children are lucky enough to have a family member able to

       meet these needs instead of a childcare facility or babysitter. Therefore, even if




       Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015   Page 6 of 13
       Mother had not waived the issue, we find that she has failed to establish that

       Grandmother is a de facto custodian.4


                                                II. Sufficiency
[13]   Next, Mother makes a number of arguments that amount to a contention that

       there is insufficient evidence supporting the trial court’s denial of her motion to

       modify. We review rulings on requests to modify custody for abuse of

       discretion, with a preference for granting latitude and deference to our trial

       judges in family law matters. Wilson v. Myers, 997 N.E.2d 338, 340 (Ind. 2013).

       In reviewing the trial court’s determination, we neither reweigh evidence nor

       assess witness credibility. In re Marriage of Harpenau, 17 N.E.3d 342, 346 (Ind.

       Ct. App. 2014). We will not substitute our judgment if any evidence or

       legitimate inferences support the trial court’s judgment. Id.


[14]   The Indiana Code prohibits a court from modifying 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 . . . of this chapter.” I.C. § 31-17-2-21(a). Those factors

       include:




       4
         We also express our skepticism that Mother has standing to raise this issue. It is apparent to us that the
       intent of the requirement to make a de facto custodian who has custody of a child a party to any custody
       proceeding is to benefit and protect the de facto custodian, who otherwise might have no input into the trial
       court’s determination. We question whether a biological parent has the right to inject the issue into a custody
       proceeding. We need not answer this question, however, inasmuch as we conclude that in this case, Mother
       has not succeeded with her argument on this issue.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015                Page 7 of 13
            the child’s age and gender;
            the wishes of the parent(s);
            the wishes of the child, with greater consideration given to the wishes of
             children fourteen years of age and older;
            the relationship the child has with his or her parent(s), sibling(s), and
             others;
            the child’s adjustment to home, school, and community;
            the mental and physical health of all involved;
            any evidence of domestic or family violence;
            and any evidence that the child has been cared for by a de facto
             custodian.

       I.C. § 31-17-2-8. The party seeking modification “bears the burden of

       demonstrating that the existing arrangement is no longer in the best interests of

       the child and there has been a substantial change in one or more of the

       enumerated statutory factors[.]” Wilson, 997 N.E.2d at 340 (internal citation

       omitted).5


[15]   In this case, the record reveals that Father has been the children’s primary

       custodian since 2006. While the normal ups and downs of life have occurred in

       the ensuing years, it is apparent that the children are safe, loved, and thriving in

       this home. Father and Grandmother appropriately sought medical advice



       5
         Mother makes much of the fact that the trial court quoted caselaw that may or may not still be good
       authority, claiming that the trial court applied an incorrect legal standard to the proceedings. Specifically, in
       its order, the trial court stated as follows: “The requirements for a modification of child custody are set forth
       in I.C. 31-17-2-21 and case authority. There must be a showing that modification is in the best interest of the
       boys and that there has been a substantial change of circumstances in [Father’s] home that warrants a
       modification.” Appellant’s App. p. 17. The trial court then proceeds to reference outdated caselaw. While
       we acknowledge that an incorrect standard may have been applied, we are confident that the evidence in the
       record readily supports the trial court’s judgment. To remand for reconsideration would be an inefficient use
       of judicial and litigant resources, inasmuch as the trial court would justifiably reach the same conclusion as it
       did the first time around. Consequently, we decline to remand on this basis.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015                   Page 8 of 13
       regarding A.P.’s challenges, received the ADHD diagnosis, and then worked

       with the school to ensure that his educational needs are being met and with a

       psychiatrist to ensure that his medication regimen is appropriate. Since

       receiving the diagnosis and treatment, A.P. has dramatically improved in

       school and has made many friends at school and in his neighborhood. His

       psychiatrist testified that A.P. is receiving exceptional care from Father and

       Grandmother and that it would not be in his best interests to change homes or

       schools. There is no evidence that B.P. is having any difficulties at this time.

       Both children are now enrolled in basketball and Boy Scouts.


[16]   The vast majority of Mother’s argument on appeal consists of her directing our

       attention to evidence that supports her position and attempting to discredit the

       evidence and witnesses relied upon by the trial court. This amounts to a

       repeated request that we reweigh the evidence and assess witness credibility,

       which we will not do. See Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)

       (cautioning that with respect to custody modifications, appellate courts “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”).


[17]   It is readily apparent that the difficulties in this case stem from the negative

       relationship between Mother, Father, and Grandmother. This relationship is

       permeated by animosity, vitriol, and poor communication. That,

       unquestionably, is not in the children’s best interests. We encourage the adults

       Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015   Page 9 of 13
       in this case to act as such, to leave the past behind, and start anew for the sake

       of the children. Mother must respect Father’s role as parent and primary

       custodian and Grandmother’s role as caregiver, and Father and Grandmother

       must respect Mother’s role as parent, as well as her right to the parenting time

       to which she is entitled.


[18]   That said, there is ample evidence in the record supporting the trial court’s

       denial of the motion for custody modification. There is no basis on which to

       conclude that the trial court abused its discretion in concluding that Mother

       failed to meet her burden of establishing a substantial change in circumstances

       such that modification is warranted.


[19]   The judgment of the trial court is affirmed.


       Crone, J., concurs, and Brown, J., concurs in part and dissents in part with an

       opinion.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015   Page 10 of 13
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       In Re the Marriage of:                                  Court of Appeals Case No.
                                                               48A04-1405-DR-203
       Leann Palmer (Lawrence),
       Appellant-Petitioner,

               v.

       Jeffrey Palmer,
       Appellee-Respondent.




       Brown, Judge, concurring in part and dissenting in part.

[20]   I concur with the majority as to its de facto custodian analysis, but respectfully

       dissent from the majority’s conclusion that “it is apparent that the trial court

       applied the correct legal standard” to the proceedings. Slip op. at 8 n.5. In

       denying Mother’s petition, the trial court stated in its “Conclusions of Law”

       that “[t]he requirements for a modification of child custody are set forth in I.C.

       31-17-2-21 and case authority.” Appellant’s Appendix at 17 (emphasis added). It

       proceeded to cite language from the case of Herrmann v. Herrmann, 613 N.E.2d

       471, 473 (Ind. Ct. App. 1993), reh’g denied, in which this court stated: “A

       Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015   Page 11 of 13
       modification of custody is warranted only when the noncustodial parent shows

       a decisive change of conditions in the custodial home or a change in the

       treatment of the children in the custodial home which necessitates removal.”

       Id. Thus, despite the fact that it cited to the current modification statute, the

       court applied this language in Herrmann in rendering a decision on Mother’s

       petition.


[21]   At the time of Herrmann,6 modification of child custody was governed by Ind.

       Code § 31-1-11.5-22(d), which provided as follows:

               The court in determining said child custody, shall make a modification
               thereof only upon a showing of changed circumstances so substantial
               and continuing as to make the existing custody order unreasonable. In
               making its determination, the court shall not hear evidence on matters
               occurring prior to the last custody proceeding between the parties
               unless such matters relate to a change of circumstances.


       (Subsequently amended by Pub. L. No. 4-1993, § 264; Pub. L. No. 5-1993, §

       277; Pub. L. No. 139-1994, § 2; repealed by Pub. L. No. 1-1997, § 157). In Pub.

       L. No. 139-1994, the General Assembly replaced the former statute with a new

       modification statute which is substantially similar to the current version found

       at Ind. Code § 31-17-2-21(a) and is principally focused on the best interests of

       the child and whether a substantial change in one of the enumerated factors

       listed in Ind. Code § 31-17-2-8 has occurred. See also Joe v. Lebow, 670 N.E.2d 9,




       6
        The father in Herrmann filed his petition for modification of custody on November 5, 1990. 613 N.E.2d at
       473.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015           Page 12 of 13
       17 (Ind. Ct. App. 1996) (noting that “[e]ffective July 1, 1994, the modification

       provisions in both the paternity and the dissolution statutes were revised

       significantly . . .”).


[22]   The court erroneously applied certain language from Herrmann that, to prevail,

       Mother was required to show that “a decisive change of conditions in the

       custodial home or a change in the treatment of the children in the custodial

       home” existed “which necessitate[d] removal” of A.P. and B.P. This is a

       statement of law interpreting a superseded statute which neither concerns itself

       with the best interests of the children, nor instructs the court to examine the

       enumerated factors listed in Ind. Code § 31-17-2-8. Rather, when Herrmann was

       issued the court’s sole focus was to determine whether the movant

       demonstrated “changed circumstances so substantial and continuing as to make

       the existing custody order unreasonable.” Because the court applied an

       incorrect legal standard in reviewing Mother’s modification petition, I would

       remand with instructions that the court consider the best interests of A.P. and

       B.P., as well as the factors of Ind. Code § 31-17-2-8, without necessarily hearing

       additional evidence, and to issue amended findings and conclusions based

       thereon. For these reasons, I respectfully dissent in part.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1405-DR-203 | May 14, 2015   Page 13 of 13
