Garringer v. Garringer
| Decision Date | 16 May 2022 |
| Docket Number | 21A-DR-2652 |
| Parties | Jeremy Garringer, Appellant, v. Chrisje M. Garringer, Appellee. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as 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.
Appeal from the Randolph Circuit Court, Trial Court Cause No 68C01-1209-DR-902, The Honorable Jay L. Toney, Judge
Attorney for Appellant Ana M. Quirk.
Attorneys for Appellee Dorothy Ferguson
[¶1] J.G. ("Father") appeals a custody modification order granting the primary physical custody of C.G. and L.G. ("Children") to Ch. G. ("Mother"). Father presents the sole restated issue of whether the order is clearly erroneous. We affirm.
[¶2] The parties were married in 2008. C.G. was born in 2009 and L.G. was born in 2010. In 2012, Father petitioned to dissolve the marriage. He was awarded primary physical custody of Children and Mother exercised parenting time.
[¶3] On May 17, 2020, the Indiana Department of Child Services removed Children from Father's home and commenced an investigation of an allegation that Father had struck C.G. in the head and shoulders with a wine bottle. Children were placed with Mother from May until November of 2020, at which time the juvenile court declined to find Children to be children in need of services, and Children were returned to Father.
[¶4] On November 17, 2020, Mother filed her petition to modify the physical custody of Children. A Guardian ad Litem ("GAL") was appointed for Children. The trial court conducted a hearing on April 1, July 20, and August 9, 2021, at which Children's therapist, a visitation supervisor, both parents, Children's stepmother, and the GAL testified. Children's therapist testified that Children reported to her multiple incidents of physical abuse from Father; she further testified that each child revealed having had suicidal ideations in the past. The GAL recommended modification of physical custody of Children from Father to Mother. On November 1, 2021, the trial court issued its findings of fact, conclusions thereon, and order modifying custody. Father now appeals.
[¶5] We review custody modifications for an abuse of discretion with a preference for "granting latitude and deference to our trial judges in family law matters." Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). As our Supreme Court has explained:
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. On appeal, it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal. Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.
Id. (quotation marks and citations omitted).
[¶6] Mother timely filed a written request for findings and conclusions pursuant to Indiana Trial Rule 52(A). In such cases, our standard of review is well settled:
First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. In deference to the trial court's proximity to the issues, we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. We do not reweigh the evidence but consider only the evidence favorable to the trial court's judgment. Challengers must establish that the trial court's findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Additionally, a judgment is clearly erroneous under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We evaluate questions of law de novo and owe no deference to a trial court's determination of such questions.
[¶7] Trabucco v. Trabucco, 944 N.E.2d 544, 548-49 (Ind.Ct.App. 2011) (), trans. denied. In addition, when findings of fact are unchallenged, this Court accepts them as true. Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind.Ct.App. 2020), trans. denied. As such, if the unchallenged findings are sufficient to support the judgment, we will affirm. Id.
[¶8] Indiana Code Section 31-17-2-21 governs child custody modification, providing in pertinent part:
[¶9] In turn, the factors of Indiana Code Section 31-17-2-8 are as follows:
[¶10] Father contends that the trial court "entered a modification of child custody without finding a substantial change in one or more of the factors enumerated in I.C. 31-17-2-8." Appellant's Brief at 4. According to Father, he and Mother have historically had difficulty communicating with each other, but each parent provides similar daily routines for Children, with suitable housing, homework assistance, extracurricular activities, and transportation. He denies that there was substantiated physical abuse in his home. As such, Father argues that there was simply no evidence presented to justify a finding of a substantial change in circumstances.
[¶11] Father does not challenge any particular finding of fact as lacking evidentiary support. The findings of fact entered by the trial court include the following findings regarding the adjustment and mental health of Children as well as parent-child interactions:
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