Gandin v. Lefand
| Decision Date | 22 September 2015 |
| Docket Number | No. 02A05–1412–DR–569.,02A05–1412–DR–569. |
| Citation | 40 N.E.3d 532 (Table) |
| Parties | Nick GANDIN, Appellant–Petitioner, v. Elina LEFAND, Appellee–Respondent. |
| Court | Indiana Appellate Court |
Nick Gandin, Fishers, IN, Appellant Pro Se.
Michael A. Setlak, Shilts Law Office, Fort Wayne, IN, Attorney for Appellee.
RILEY
, Judge.
STATEMENT OF THE CASE
[1] Appellant–Petitioner, Nick Gandin (Father), appeals the trial court's denial of his motion to correct error after the trial court issued its Order denying Father's petition for modification of custody and motion for injunctive relief, in favor of Appellee–Respondent, Elina Lefand (Mother).
We affirm.
ISSUES
[2] Father raises four main issues and numerous sub-issues on appeal, all of which we consolidate and restate as the following single issue: Whether the trial court abused its discretion when it denied his motion to correct error.
[3] Mother raises one issue, which re restate as: Whether Mother is entitled to appellate attorney fees, pursuant to Indiana Appellate Rule 66(E)
.
FACTS AND PROCEDURAL HISTORY
[4] Father and Mother were married on March 23, 1999. Their son, B.G., was born on December 25, 2002. On July 2, 2004, Father filed a petition for dissolution of his marriage to Mother. On April 4, 2008, after contentious proceedings, the trial court issued its dissolution decree, including extensive and detailed findings of fact and conclusions thereon. The trial court granted custody of B.G. to Mother, subject to Father's extended parenting time. On May 2, 2008, Father filed a motion to correct error, which was denied by the trial court that same month. Father appealed the trial court's denial of his motion to correct error. On April 13, 2010, this court issued its memorandum opinion, affirming the trial court's denial of Father's motion. See N.G. v. A.L., No. 02A03–0907–CV–331 (Ind.Ct.App. Apr. 13, 2010).
[5] On October 4, 2012, Father filed a petition to modify the decree of dissolution of marriage as to custody. In his petition, Father alleged that Mother had denied him his court-ordered parenting time; that Mother had failed to provide for B.G.'s needs; that Mother does not have the time to properly care for B.G.; that B .G. would benefit from spending more time with a male parent; that Father made the best effort to care for B.G.'s needs; that even though Father moved to Indianapolis, he still wants to spend as much time as possible with B.G.; that the Indianapolis area provides better educational opportunities for B.G., as well as a large and vibrant Jewish community. Thereafter, on October 4, 2012, Mother filed her motion to modify parenting time and child support. On January 31, 2013, Father filed a motion for injunctive relief and on May 3, 2013, he filed a motion to add an issue of overpayment of child support.
[6] On October 7, 2013, the trial court entered its detailed and extensive Order, denying Father's petition for modification and motion for injunctive relief. The trial court also denied Mother's motion to modify parenting time and child support; however, the trial court ordered Father to provide all of the transportation for B.G. to and from his parenting time. The trial court agreed that Father had overpaid his child support and reduced the amount to a judgment in favor of Father.
[7] On November 1, 2013, Father filed a motion to correct error, which Mother responded to six days later. A series of hearings were held on March 10, August 21, and October 30, 2014, respectively. On November 14, 2014, the trial court denied Father's motion to correct error.
[8] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] A trial court has discretion to grant or deny a motion to correct error and we reverse its decision only for an abuse of that discretion. French v. French, 821 N.E.2d 891, 897 (Ind.Ct.App.2005)
, reh'g denied. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.
[10] Essentially, Father challenges the trial court's denial of modification of custody and lays out an extensive list of alleged factual errors in the trial court's Order. There is a well-established preference in Indiana “for granting latitude and deference to our trial judges in family law matters.” Swadner v. Swadner, 897 N.E.2d 966, 971 (Ind.Ct.App.2008)
(quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind.1993) ). “[A]ppellate 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.’ “ D.C. v. J.A.C., 977 N.E.2d 951, 956–57 (Ind.2012) (quoting Kirk v. Kirk, 707 N.E.2d 304, 307 (Ind.2002) ). Our State's courts have long emphasized a concern that there be finality in matters concerning child custody. Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind.2008). “Modification of custody is an area committed to the sound discretion of the trial court, and we are constrained to neither reweigh evidence nor judge the credibility of witnesses.” Jarrell v. Jarrell, 5 N.E.3d 1186, 1190 (Ind.Ct.App.2014), trans. denied.
[11] Father is acting pro se in the instant cause. While Father has every right to represent himself in legal proceedings, a pro se litigant is nevertheless held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind.2014)
. At the same time, this court has no desire to deter a litigant from advancing any claim or defense which is arguably supported by existing law, or any reasonably based suggestion for its extension, modification or reversal. See id. To effectuate judicial economy, however, the legal system has enacted rules for litigants to follow when presenting a case before a tribunal. As such, our appellate rules provide guidance to appellate parties to have their appeal determined on the merits and to enable the courts on appeal to expeditiously and fairly review the cases before them without devoting inordinate amounts of judicial time to each one. See
Gentry v. State, 586 N.E.2d 860, 861 (Ind.Ct.App.1992).
[12] Indiana Appellate Rule 46(A)
establishes the requirements for the Appellant's Brief. With respect to the argument section, section 8 of Ind. Appellate Rule 46(A) clearly requires each argument to be supported by citations to the authorities, statutes, and the appendix or transcript, as well as cogent reasoning. All of these requirements are absent in Father's brief. Instead, we are presented with a litany of perceived mistakes and Father's tirade towards Mother and the trial court's judgment. While we are often tolerant of minor infractions of the appellate rules, failure to substantially follow them puts an appeal in jeopardy from the beginning. Id. As submitted, Father's appellate brief is difficult to follow, unsupported by case law and citations to the record, and most importantly, lacks cogent reasoning. Accordingly, we find that Father has waived appellate review of his cause. See
AutoXchange.com v. Dreyer & Reinbold, Inc., 816 N.E.2d 40, 44 (Ind . Ct.App.2004).
[13] Waiver notwithstanding, our review of what we are able to discern of Father's arguments leads us to the conclusion that the trial court did not abuse its discretion when denying Father's motion to correct error. Father's motion to correct error and appellate brief are essentially a list of alleged factual errors in the trial court's Order denying his request for modification of child custody. The trial court issued detailed findings of fact and conclusions of law in reaching its decision. These findings are supported by evidence in the record, to which the trial court extensively refers. To the extent that Father argues that the evidence should be construed differently, his arguments amount to a request that we reweigh the facts and judge the credibility of the witnesses, which we will not do. Pawlik v. Pawlik, 823 N.E.2d 328, 330 (Ind.Ct.App.2005)
, trans. denied.
[14] Instead, this appears to be a situation where both parents clearly love B.G. and have his best intentions at heart, but have lost all ability to communicate as parents and to work together to seek B.G.'s best interest. We echo the trial court's sentiments when we state that “[t]he parents appear to have become so caught up in controlling the other parent and ‘winning the battle’ over the various disagreements that they do not realize that their inability to interact appropriately and to communicate like rational adults who put their child's interests ahead of their own will very likely have a significant and negative impact on their child in the future.” (Appellant's App. p. 54). We discern no reason to reverse the trial court's denial of Father's motion to correct error.
[15] Contending that Father carelessly and frivolously filed this appeal in an “effort to achieve a second bite at the apple,” Mother requests that we remand this cause to the trial court for determination of reasonable appellate attorney fees pursuant to Indiana Appellate Rule 66(E)
. (Appellee's Br. p. 13).
[16] Indiana Appellate Rule 66(E)
provides, in pertinent part, Our discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to instances where an appeal is permeated with meritless arguments, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App.2003). While Indiana Appellate rule 66(E) provides this court...
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