Ellenburg v. Kropp
| Decision Date | 17 September 2021 |
| Docket Number | Court of Appeals Case No. 21A-JP-574 |
| Parties | Samantha D. ELLENBURG, Appellant-Respondent, v. Calvin J. KROPP, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Attorneys for Appellant: Alexander N. Moseley, Bryan L. Ciyou, Ciyou and Dixon P.C., Indianapolis, Indiana
Attorney for Appellee: Jack A. Tandy, Tandy Law, LLC, Shelbyville, Indiana
[1] Samantha D. Ellenburg ("Mother") and Calvin J. Kropp ("Father") (collectively "Parents") have two children together, R.K. and C.K., (collectively "Children") who were, respectively, fourteen and eleven years old at the time of the custody hearing. Previously, Parents shared legal custody and Mother had physical custody while Father exercised parenting time according to the Indiana Parenting Time Guidelines, with additional Sunday overnights and alternating Monday and Wednesday nights. In 2020, Mother was convicted twice and arrested once for conduct involving alcohol and the operation of a motor vehicle; in response, on July 1, 2020, Father filed a petition for modification of custody, parenting time, and child support. On August 6, 2020, Mother filed a petition to modify, alleging that there had been a substantial change in circumstances due to issues between Father's wife, Heather Kropp, and the Children. On March 26, 2021, the juvenile court held a hearing on the petitions. On April 1, 2021, the juvenile court issued an order modifying physical custody of the Children from Mother to Father and granted Father sole legal custody of the Children. Mother argues that the juvenile court erred in determining that there had been a substantial change in circumstances and improperly granted full legal custody to Father sua sponte , as neither Parent requested as much during the hearing or in their briefs. Concluding that the trial court acted within its discretion by granting Father physical and sole legal custody to Father, we affirm.
[2] Mother and Father have two children together, R.K. and C.K. who were fourteen and eleven years old at the time of the custody hearing. Previously, Parents shared legal custody and Mother had physical custody while Father exercised parenting time according to the Indiana Parenting Time Guidelines, with additional Sunday overnights and alternating Monday and Wednesday nights.
[3] In 2020, Mother had an alcohol problem which manifested in a number of criminal incidents. Mother was convicted twice, under two separate cause numbers, for Class B misdemeanor public intoxication on May 21, 2020. Mother was also arrested on June 28, 2020, at 3:26 a.m. and subsequently charged with Class C misdemeanor operating a motor vehicle while intoxicated endangering a person and violating the terms of her probation.
[4] In response to these incidents, on July 1, 2020, Father filed a petition for modification of custody, parenting time, and child support. Father alleged that, because of Mother's alcohol related issues, there had been a substantial change in circumstances. On August 6, 2020, Mother filed a petition to modify, alleging that there had been a substantial change in circumstances due to conflict between Heather and the Children. While Mother's petition made no request to change legal custody, only physical custody, Father's petition asked generally that the court "make a modification of current custody" and "make appropriate orders with respect to custody and parenting time [...] and for all other appropriate relief." Appellant's App. Vol. II, pp. 17–18.
[5] On March 26, 2021, the juvenile court held a hearing on the petitions. On April 1, 2021, the juvenile court issued an order modifying physical custody of the Children from Mother to Father and granted Father sole legal custody of the Children. In support of its decision, the trial court expressed concern that Mother had four separate criminal cases, Mother had a plan to potentially cohabitate with a convicted felon upon his release from incarceration, and Mother decided to leave the Children in the care of a repeat criminal offender, among other findings.
[6] "The [juvenile] court is vested with the sound discretion to make custody determinations, and we will uphold the [juvenile] court's judgment absent an abuse of discretion." Gonzalez v. Gonzalez , 893 N.E.2d 333, 335 (Ind. Ct. App. 2008) (). "A [juvenile] court's custody determination is afforded considerable deference as it is the [juvenile] court that sees the parties, observes their conduct and demeanor and hears their testimony." Kondamuri v. Kondamuri , 852 N.E.2d 939, 945–46 (Ind. Ct. App. 2006) (). We will not reweigh evidence or reassess witness credibility. M.S. v. C.S. , 938 N.E.2d 278, 281–82 (Ind. Ct. App. 2010). Baxendale v. Raich , 878 N.E.2d 1252, 1257–58 (Ind. 2008) (citing Kirk v. Kirk , 770 N.E.2d 304, 307 (Ind. 2002) ).
[7] Mother contends that the juvenile court abused its discretion in modifying physical custody of the Children when it determined that there had been a substantial change in circumstances, as she argues that this is against the logic and effects of the facts and circumstances of this case. Specifically, Mother argues that the juvenile court's findings do not support the inference that there has been a substantial change in circumstances, because none of them have had an effect on the Children, and that it is not in their best interest to have physical custody awarded to Father because the Children would prefer to stay with her due to their strained relationship with Father and his wife. We are unpersuaded.
[8] In its order, the juvenile court listed seven findings in support of its decision:
Appellant's App. Vol. II, pp. 11–12. Mother, rather than taking issue with any of these individual findings, merely insists that these findings, while true, do not establish a nexus of harm to the Children, and so there can be no substantial change in circumstances. We disagree. Mother committed three criminal acts involving alcohol and/or driving in just a few months, and also violated the terms of her probation. While she has taken steps to remedy those mistakes, there are other troubling signs which gave the juvenile court reason to modify custody. Further, the juvenile court was also concerned for Children that Mother would let a repeat-criminal offender stay with her and the Children and planned to cohabitate with a convicted felon. Given the seriousness of those findings, we see no reason to forgo our usual deference for the juvenile court in this case. "A [juvenile] court's custody determination is afforded considerable deference as it is the [juvenile] court that sees the parties, observes their conduct and demeanor and hears their testimony. Kondamuri , 852 N.E.2d at 945–46 (citing Tros...
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