MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                   FILED
this Memorandum Decision shall not be                          Aug 31 2018, 8:01 am

regarded as precedent or cited before any                          CLERK
                                                               Indiana Supreme Court
court except for the purpose of establishing                      Court of Appeals
                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Darlene R. Seymour                                       Steven E. Ripstra
Ciyou & Dixon, P.C.                                      Ripstra Law Office
Indianapolis, Indiana                                    Jasper, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.W.,                                                    August 31, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-DR-245
        v.                                               Appeal from the Martin Circuit
                                                         Court
D.W.,                                                    The Honorable William E.
Appellee-Petitioner.                                     Weikert, Senior Judge
                                                         Trial Court Cause No.
                                                         51C01-1603-DR-44



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018         Page 1 of 11
                                          Case Summary
[1]   J.W. (“Mother”) and D.W. (“Father”) have one child together (“Child”), who

      was born during their marriage. Following proceedings to dissolve the

      marriage, the trial court entered an order addressing physical custody, legal

      custody, and parenting time. Mother now appeals. We affirm.



                                                   Issues
[2]   Mother presents the following issues:


              I.       Whether the trial court clearly erred by granting Father
                       primary physical custody; and


              III.     Whether the trial court clearly erred by granting Father
                       sole legal custody.


                            Facts and Procedural History
[3]   Mother and Father began dating in 2015 and married in October 2015. When

      they married, Mother was pregnant with Child, who was born in January 2016.

      During the marriage, there was violence between Mother and Father that led to

      their separation on March 9, 2016. On that day, both Mother and Father had

      consumed alcohol and they became violent with one another at their residence.

      Law enforcement arrived, and Mother and Father were arrested and charged

      with battery. Later that month, Father petitioned to dissolve the marriage.

      Meanwhile, the Indiana Department of Child Services filed a petition alleging

      that Child was a Child in Need of Services (“CHINS”), and Child was placed

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018   Page 2 of 11
      with his paternal grandmother. Around this time—while Mother was out on

      bond for the battery incident—Mother became intoxicated at a friend’s house,

      fell down the stairs, and was transported to the hospital.


[4]   In April, in connection with the CHINS matter, Child was placed in Mother’s

      primary physical custody with Father having supervised parenting time. The

      CHINS matter was later dismissed. Thereafter, the trial court issued a

      provisional custody order upon Father’s emergency motion in September 2016.

      Prior to the filing of the emergency motion, Mother and Father had met to

      exchange Child, with Father to give Child to Mother. Mother had been

      drinking. An officer arrived, by which time Mother had Child in a car seat in

      her vehicle. Mother tried to persuade the officer to let her leave with Child.

      Mother was arrested, charged with Operating While Intoxicated, and she

      pleaded guilty to a felony-level offense. The court held a telephonic conference

      on Father’s motion, and later entered a provisional order whereby Father

      became Child’s primary physical custodian. Pursuant to the order, Mother was

      to have supervised parenting time on Saturdays and Sundays. The court later

      modified the provisional arrangement in November 2016, giving Mother

      unsupervised parenting time from Saturday evenings to Monday evenings.


[5]   A final hearing was held on March 20, April 12, and September 11, 2017.

      Meanwhile, Mother faced an additional charge of Operating While Intoxicated

      related to events that occurred in May 2017.




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018   Page 3 of 11
[6]   After bifurcating issues and first entering an order dissolving the marriage, the

      trial court later entered a final custody order in January 2018. The trial court

      entered special findings, including a determination that both parents “ha[d]

      abused alcohol in the past,” and “ha[d] participated in various treatment

      programs and services.” App. Vol. II at 24. With respect to Father, the court

      found that he had “acknowledge[d] he was consuming alcohol to excess during

      the marriage,” and had maintained his sobriety since March 9, 2016, the date of

      the incident that precipitated the separation. Id. at 22. As to Mother, the court

      found that she had maintained her sobriety since May 2017.


[7]   The court found that both parents had criminal histories, but Mother’s criminal

      history was “worse.” Id. at 23. The court further found that Father’s “behavior

      ha[d] been better than [Mother’s] during the pendency of this cause,” with

      Father having “not had any arrests since both parents were arrested on March

      9, 2016,” and Mother having “had many contacts with the criminal justice

      system.” Id. The trial court also found that Child “ha[d] thrived in [Father’s]

      primary care and custody,” and that Father’s flexible work-from-home schedule

      allowed Father to care for Child without needing a babysitter. Id. at 24.


[8]   The trial court stated that, after considering its custody-related findings,

      including “the criminal histories, mental health issues, and the fact that

      [Mother] failed when she had custody” of Child from April to September 2016,

      it was “convinced that Father should have primary physical custody.” Id. at 26.

      The court granted Mother parenting time, and elected to deviate—in Mother’s

      favor—from the Indiana Parenting Time Guidelines pertaining to children less

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018   Page 4 of 11
       than thirty-six months old. The order specified that Mother would have

       parenting time “every other weekend from 6 p.m. on Friday to 6 p.m. on

       Sunday,” and on “all scheduled holidays for 10 hours.” Id. The order further

       provided that, effective July 1, 2018, Mother would have additional holiday

       time with Child. As to legal custody, the trial court granted Father sole legal

       custody because “the parents have trouble communicating.” Id.


[9]    Mother now appeals.



                                  Discussion and Decision
[10]   In matters involving child custody, the trial court “shall determine questions of

       law and fact.” Ind. Code § 31-17-2-7. Moreover, upon a party’s timely written

       request—as there was here—the trial court “shall find the facts specially and

       state its conclusions thereon.” Trial Rule 52(A). When the trial court has done

       so, we apply a “two-tiered review” whereby we will “affirm when the evidence

       supports the findings, and when the findings support the judgment.” Wysocki v.

       Johnson, 18 N.E.3d 600, 603 (Ind. 2014). In conducting our review, we “cannot

       weigh the evidence but must consider it in a light most favorable to the

       judgment,” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011), giving “due

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

       witnesses,” T.R. 52(A). Moreover, we are especially deferential to trial courts

       in matters of family law. See Best, 941 N.E.2d at 502. With that deference in

       view, we “shall not set aside the findings or judgment unless clearly erroneous.”

       T.R. 52(A). Findings are clearly erroneous when the record contains no facts to

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018   Page 5 of 11
       support them either directly or by inference; a judgment is clearly erroneous if it

       applies the wrong legal standard to properly found facts. Town of Fortville v.

       Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 1198 (Ind.

       2016). We will reverse only upon a showing of clear error: “that which leaves

       us with a definite and firm conviction that a mistake has been made.” Egly v.

       Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992).


[11]   During the pendency of dissolution proceedings, the trial court may issue

       provisional custody orders “to the extent the court considers proper.” I.C. § 31-

       15-4-8. However, in entering a final custody order, the trial court must comply

       with Indiana Code Section 31-17-2-8, which provides, in pertinent part:


               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;


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018   Page 6 of 11
                                   (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.


                                              Physical Custody
[12]   In challenging the court’s decision to grant Father primary physical custody,

       Mother focuses on her progress toward recovery.1 Mother largely portrays




       1
         In directing argument toward physical custody, Mother interweaves argument concerning the amount of
       parenting time she received under the order. We review parenting-time decisions for an abuse of discretion,
       which occurs when the court’s decision is clearly against the logic and effect of the facts and circumstances
       before it or where the trial court errs as a matter of law. See Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.
       2013). Pursuant to Indiana Code Section 31-17-4-1, a noncustodial parent “is entitled to reasonable
       parenting time rights” unless the court makes certain findings. Mother has not directly argued that the order
       failed to afford her “reasonable” parenting time. Nonetheless, Mother’s argument largely focuses on
       comparing the provisional order with the final order. Mother argues that the order “upend[ed]” Child’s
       routine, Appellant’s Br. at 13, and resulted in an “extreme reduction” in her parenting time “tantamount to
       denial of parenting time,” id. at 15. To the extent Mother is arguing that her parenting time should not fall

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018                       Page 7 of 11
       herself in a positive light while directing our attention to evidence less favorable

       to Father, including evidence that she claims “appears to have been written off

       despite its serious nature.” Appellant’s Br. at 18. Mother characterizes the

       order as “hail[ing] [Father] as the better parent, one who is deserving of primary

       physical and sole legal custody.” Id. at 19. Mother also focuses on the care she

       gave to Child “for the first nine (9) months of his life,” before she was arrested

       when exchanging Child. Id. at 18. Mother asserts that her “argument is

       categorically supported by the evidence,” and the “findings are incomplete and

       fail to include significant facts relevant to the best interest analysis.” Id. at 17.


[13]   Yet, the trial court—not this Court—is the fact-finder, and we may not reweigh

       the evidence. Under our deferential standard of review, “it is not enough that

       the evidence might support some other conclusion, but it must positively

       require the conclusion contended for by [the] appellant before there is a basis

       for reversal.” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quotation

       marks omitted). Here, contrary to Mother’s assertion that the court improperly

       failed to “consider all evidence from the time of the child’s birth,” Appellant’s

       Br. at 18, the order contains thorough factual findings concerning the trajectory




       on a Saturday because she was working those days, Mother testified that she could adjust her work schedule
       to accommodate her parenting time. Next, although Mother asserts that the court should not have “limited”
       her to guideline time under the Indiana Parenting Time Guidelines, id. at 18, Mother declines to mention
       that, in part of the order, the court deviated from those guidelines in Mother’s favor. Moreover, the cases to
       which Mother directs us are not on all fours, as they involve either the complete deprivation of parenting
       time, see Perkinson, 989 N.E.2d at 766, or the limitation of time in light of a determination that the parent
       posed a danger to the child, see In re Paternity of B.J.N., 19 N.E.3d 765, 770 (Ind. Ct. App. 2014). We are
       ultimately not persuaded that the order failed to afford Mother reasonable parenting time. See Ind. Parenting
       Time Guidelines pmbl. (providing that, in general, the guidelines “are applicable to all child custody
       situations”). We therefore identify no abuse of discretion, and decline to disturb the parenting-time order.

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018                    Page 8 of 11
       of events and the matters of significance to its custody determination.

       Moreover, the trial court was free to give more weight to the period of time

       immediately preceding its decision—during which Father was Child’s primary

       custodian and Child thrived in Father’s care. Indeed, the evidence indicates

       that Father provided stability amid Mother’s struggles with alcohol, interactions

       with law enforcement, and efforts toward sustained sobriety.


[14]   The trial court found that Mother had a good relationship with Child, a finding

       that the evidence amply supports. However, the evidence also supports the trial

       court’s determination that it would be in Child’s best interests to remain in the

       primary physical custody of Father—who Child had been accustomed to living

       with on a primary basis. Moreover, although Mother made laudable steps in

       her recovery, we are not persuaded that the order amounted to improperly

       “penaliz[ing] Mother” for struggling with alcohol abuse. Id. at 16. Nor are we

       persuaded that the court erred, as Mother suggests, by improperly considering

       those struggles during the pendency of the matter. Nonetheless, to the extent

       that Mother challenges the court’s observation that Mother had “failed” when

       she relapsed while having primary custody of Child from April to September

       2016, it was not entirely artful for the court to invoke the language of failure.

       Yet, from the evidence, the court could reasonably determine that the period of

       custody was not completely successful when, near its end, Mother tried to

       persuade an officer to let her drive with Child after she consumed alcohol.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018   Page 9 of 11
[15]   Pursuant to our standard of review, we conclude that the evidence supports the

       findings, and the findings support the trial court’s decision that it was in Child’s

       best interests for Father to be the primary physical custodian.


                                             Legal Custody
[16]   When determining legal custody, as in matters of physical custody, the trial

       court must evaluate the child’s best interests. See I.C. § 31-17-2-8. In evaluating

       “whether an award of joint legal custody . . . would be in the best interest of the

       child,” the court must consider, inter alia, “whether the persons awarded joint

       custody are willing and able to communicate and cooperate in advancing the

       child’s welfare.” I.C. § 31-17-2-15. Furthermore, “the court shall consider it a

       matter of primary, but not determinative, importance that the persons awarded

       joint custody have agreed to an award of joint legal custody.” Id.


[17]   Here, Mother and Father did not agree to joint legal custody, and there was

       testimony that Mother and Father were “not so good” at communicating about

       most issues, Tr. Vol. III at 192, that their communication had not improved,

       and that issues arose when sending text messages to one another. Mother

       argues that the trial court should have ordered joint legal custody. She now

       directs us to evidence indicating that she was the better communicator and that

       Father made unilateral decisions concerning Child during the course of the

       dissolution proceedings. Mother characterizes the court’s decision as creating a

       “perverse incentive,” asserting that “[i]t is contrary to our custody laws for a

       parent who sows the seeds of discord to reap the benefits of their misconduct.”


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018   Page 10 of 11
       Appellant’s Br. at 24. Yet, as Mother acknowledges elsewhere in her brief,

       “[n]either Mother nor Father were blameless in this case,” id. at 16, and the

       evidence indicates that communication had broken down before these

       proceedings commenced. Ultimately, we must decline Mother’s request to

       reweigh the evidence, which indicates that Mother and Father had a relatively

       brief relationship fraught with arguments and eventually violence that led to

       their separation. Despite the passage of time, Mother and Father had not been

       able to effectively communicate about parenting issues. The trial court could

       reasonably determine that Mother and Father lacked the kind of cooperative

       relationship that would warrant an order of joint legal custody. We accordingly

       conclude that the decision concerning legal custody was not clearly erroneous.



                                               Conclusion
[18]   The trial court did not clearly err by granting Father primary physical custody

       and sole legal custody of Child.


[19]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-245 | August 31, 2018   Page 11 of 11
