J.K. v. T.L.

• Court: Indiana Appellate Court
• Writing for the Court: BARNES
• Citation: J.K. v. T.L., 995 N.E.2d 729 (Ind. App. 2013)
• Decision Date: 07 October 2013
• Docket Number: No. 02A03–1301–JP–12.,02A03–1301–JP–12.
• Parties: In re The PATERNITY OF J.K., A.K., Appellant, v. T.L., Appellee.

995 N.E.2d 729

In re The PATERNITY OF J.K.,A.K., Appellant,

v.T.L., Appellee.

No. 02A03–1301–JP–12.

Court of Appeals of Indiana.

Oct. 7, 2013.

Appeal from the Allen Superior Court; The Honorable Thomas Ryan, Senior Judge; Cause No. 02D07–0005–JP–134.

Heidi K. Koeneman, Murphy Ice & Koeneman, LLP, Fort Wayne, IN, Attorney for Appellant.

Adam L. Hand, Andrea M. Trevino, Beckman Lawson, LLP, Fort Wayne, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BARNES, Judge.

Case Summary

A.K. (“Father”) appeals the denial of his petition to modify custody of his daughter, J.K. We affirm.

Issue

Father raises two issues, which we combine and restate as whether there is sufficient evidence to support the trial court's denial of Father's petition to modify custody.

Facts

J.K. was born to T.L. (“Mother”) in 1998, and Father established his paternity in 2000. In 2002, the parties reached a court-approved agreement regarding custody of J.K., providing that Mother and Father would have joint legal custody and Mother would have primary physical custody.

The parties have had some conflicts and disagreements over the years regarding J.K.'s education, religious upbringing, and the manner in which Mother is raising J.K. For example, during the 2007–08 school year, J.K. was tardy to school on seventy-four days. Mother attributed these tardies to J.K. having mononucleosis and to troubles with a neighborhood bully.

In the fall of 2009, Mother unilaterally moved J.K. from the public school system of Southwest Allen County where she had always attended school to a Montessori school. Father filed a petition for contempt against Mother. In December 2009, a court-appointed guardian ad litem (“GAL”) recommended that J.K. switch back to the public elementary school at the semester break; the trial court also found Mother in contempt for unilaterally switching J.K.'s school.

In August 2010, Mother moved in with her mother in DeKalb County. Mother did not attempt to enroll J.K. in a DeKalb County school; however, she informed Father that he and his current wife would be required to provide transportation for J.K. to school in Allen County. On August 17, 2010, Father filed another petition to hold Mother in contempt. On that same date, the trial court ordered Mother to provide all transportation for J.K. to school in Allen County but did not hold her in contempt at that time.

Mother's living and employment arrangements were unstable between 2008 and 2011. She apparently moved seven to eight times during that period, with at least two moves resulting from eviction, and including living in a hotel at one point and living out of her car for a brief period. She also had several jobs from which she had been terminated for various reasons. Despite instability in Mother's living and employment arrangements, it is undisputed that J .K. is a well-adjusted, bright child who is a straight-A student and participant in multiple extracurricular activities. There also is no evidence that J.K. has ever suffered from malnutrition, or untreated health, psychological, or emotional problems.¹

Father's lifestyle before 2007 also involved multiple living and employment arrangements. In 2007, his life began to stabilize when he moved into a three-bedroom home in the Southwest Allen County school district, where he has lived ever since. In 2008, he married his current wife, with whom he has a young child. Father also has a third child from another relationship who sometimes stays with Father. Father currently is a firefighter.

On July 12, 2010, Father filed a petition requesting modification of physical custody; the petition was silent on the issue of legal custody. Due to an unsuccessful mediation attempt, continuances, and recusal of the presiding magistrate, a first hearing on the petition to modify custody was not held until July 7, 2011. During the hearing, Father stated that not only was he seeking a modification of physical custody, but of legal custody as well. The hearing was not completed on that date. On July 13, 2011, Mother filed a petition to hold Father in contempt related to J.K.'s religious upbringing, a summer camp Mother objected to, and an instance of Dad taking J.K. to the doctor without prior notice to Mother.

The trial court concluded the custody hearing on October 17, 2011. The GAL who had previously been appointed in the 2009 school dispute testified that in her belief, it would be in J.K.'s best interests for Father to have custody of her. However, in preparation for the custody hearing, the GAL had spoken primarily with Father, Father's wife, and J.K., and very little with Mother, apparently due to scheduling difficulties. Also, although the GAL had some concerns about Mother's emotions, she did not believe Mother was mentally unstable and that, although J.K. had fears of upsetting Mother if she went to live with Father, she was not afraid of Mother actually harming her.

On November 8, 2011, the trial court entered an order without findings denying Father's petition to modify custody.² It also found Mother in contempt as alleged in Father's August 17, 2010 contempt petition, and Father in contempt as alleged in Mother's July 13, 2011 contempt petition. However, the trial court entered no contempt sanctions at that time and scheduled a hearing regarding such sanctions for April 26, 2012. Father, meanwhile, initiated an appeal from the November 8, 2011 order. The case proceeded to be fully briefed, and the April 26, 2012 hearing was delayed pending outcome of the appeal. On July 25, 2012, this court issued an opinion dismissing the appeal because the November 8, 2011 order was not a final judgment and it did not fall within any of the categories for an interlocutory appeal as of right under Indiana Appellate Rule 14(A). A.K. v. T.L., No. 02A04–1112–JP–653 (July 25, 2012).

After our opinion was certified, on November 21, 2012, the trial court held a hearing regarding contempt sanctions and concluded, upon representation by both parties that they were communicating better regarding J.K. and would continue to do so, that it would not impose any sanctions against either party. As part of its order declining to impose any sanctions, the trial court stated “that considering the depth and breadth of the disagreements between [J.K.]'s parents, joint legal custody may not be appropriate; however, no party has requested the Court to modify same.” Appellant's App. p. 32. Father now again appeals the denial of his petition to modify custody.

Analysis

We review a trial court's ruling regarding a request for modification of custody for an abuse of discretion. In re Paternity of J.T., 988 N.E.2d 398, 399 (Ind.Ct.App.2013). We give considerable deference to trial courts in family law matters, recognizing that they often must make “ ‘Solomon-like decisions in complex and sensitive matters' “ and that only trial courts are in a position “to see the parties, observe their conduct and demeanor, and hear their testimony....” Trost–Steffen v. Steffen, 772 N.E.2d 500, 509 (Ind.Ct.App.2002) (quoting Speaker v. Speaker, 759 N.E.2d 1174, 1179 (Ind.Ct.App.2001)), trans. denied.³ In reviewing a custody modification ruling, we must not reweigh the evidence or assess witness credibility and will only consider the evidence and inferences most favorable to the trial court's judgment. J.T., 988 N.E.2d at 400.

Additionally, Father had the burden of proving that a modification of custody was warranted; therefore, in appealing the denial of his motion he is appealing from a negative judgment. See Nunn v. Nunn, 791 N.E.2d 779, 783 (Ind.Ct.App.2003). We will reverse a negative judgment only if it is contrary to law, meaning that the evidence points unerringly to a conclusion different from that reached by the trial court. Id. We are obligated not to substitute our judgment for that of the trial court if any evidence or legitimate inferences support the trial court's ruling. Best v. Best, 941 N.E.2d 499, 503 (Ind.2011). In order to reverse a trial court's custody modification ruling, “ ‘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.’ “ Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002)). “[I]t is particularly difficult for a reviewing court to second-guess a situation that centers on the personalities of two parents battling for control of a child.” Kirk, 770 N.E.2d at 308.

In paternity cases, an existing child custody order may not be modified unless “(1) 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 2 and, if applicable, section 2.5 of this chapter.” Ind.Code § 31–14–13–6. The relevant factors listed in section 2 are:

(1) The age and sex of the child.

(2) The wishes of the child's 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 parents;

(B) the child's siblings; and

(C) any other person who may significantly affect the child's best interest.

(5) The child's adjustment to home, school, and community.

(6) The mental and physical health of all individuals involved.

(7) Evidence of a pattern of domestic or family violence by either parent.

(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.

I.C. § 31–14–3–2.

We emphasize that a showing of a change in circumstances regarding one or more of the above factors is not enough to warrant a modification of custody; it must also be proven that modification is in the child's best interests. Joe v. Lebow, 670 N.E.2d 9, 22–23 (Ind.Ct.App.1996)....