Jackson v. Thomas (In re W.M.T.)

• Citation: 180 N.E.3d 290
• Decision Date: 16 November 2021
• Docket Number: Court of Appeals Case No. 21A-JP-57
• Parties: IN RE the Matter of: PATERNITY OF W.M.T., Elizabeth Jackson, Appellant-Respondent, v. Sharon Thomas, Appellee-Intervenor
• Court: Indiana Appellate Court

180 N.E.3d 290

IN RE the Matter of: PATERNITY OF W.M.T.,

Elizabeth Jackson, Appellant-Respondent,

v.Sharon Thomas, Appellee-Intervenor

Court of Appeals Case No. 21A-JP-57

Court of Appeals of Indiana.

FILED November 16, 2021

Attorney for Appellant: C. Matthew Zentz, Indianapolis, Indiana

Attorneys for Appellee: Philip C. Sheward, Silvia B. Miller, Allen Wellman McNew Harvey, LLP, Greenfield, Indiana

May, Judge.

[1] Elizabeth Jackson ("Mother") appeals the trial court's orders regarding custody of and child support for W.M.T. ("Child"). Mother makes multiple arguments, which we consolidate and restate as:

1. Whether the trial court abused its discretion in admitting certain testimony and exhibits;

2. Whether the trial court erred when it determined Sharon Thomas ("Paternal Grandmother") was Child's de facto custodian;

3. Whether the trial court erred when it found it was in Child's best interest for Paternal Grandmother to have custody of him;

4. Whether the trial court abused its discretion when it excluded Child's Social Security Survivor's Benefits ("Survivor's Benefits") from its child support calculation; and

5. Whether the trial court abused its discretion when it denied Mother's motion for attorney's fees.

We affirm.

Facts and Procedural History

[2] Mother gave birth to Child on September 11, 2008. Mother and Matthew

Thomas ("Father") were never married. Father filed a paternity action in 2009. At the conclusion thereof, Father was awarded primary physical custody of Child and Mother was awarded parenting time.¹ Father passed away on October 19, 2019.

[3] Child has resided with Paternal Grandmother for the majority, if not all, of his life. Paternal Grandmother has been Child's primary caregiver. She has made medical, educational, and religious choices for Child and engaged in "any other type of care that a parent would ordinarily give to their child." (App. Vol. II at 96.) While Mother and Father both exercised parenting time with Child, "it was the Paternal Grandmother who was the stable, primary caretaker of the minor child." (Id. at 95.)

[4] On December 3, 2019, Paternal Grandmother filed a verified ex parte emergency petition for custody of Child. The trial court held a hearing on the matter on December 5, 2019, without Mother present. The trial court received testimony from Paternal Grandmother and issued an ex parte custody order on December 6, 2019, granting Paternal Grandmother custody of Child. On January 7, 2020, Paternal Grandmother filed a motion to intervene in the paternity case.

[5] On March 6, 2020, Mother filed a motion for relief from judgment pursuant to Indiana Trial Rule 60(B), arguing she was not given notice of Paternal Grandmother's petition for emergency custody, the filing violated several Indiana Trial Rules, and the order granting Paternal Grandmother emergency custody of Child was an impermissible ex parte order. On March 11, 2020, the trial court held a hearing on Mother's motion, and Paternal Grandmother filed an amended verified petition for emergency custody of Child.

[6] On March 27, 2020, the trial court issued its order granting Mother's motion for relief of judgment. In that order, the trial court declared void "[a]ll Orders issued in this matter (30D01-0902-JP-000020) prior to the date of this Order" including the "December 6, 2019 Order Granting Ex Parte temporary custody to [Paternal Grandmother]." (App. Vol. II at 81.) Further, the trial court ordered:

3. [Paternal Grandmother] shall return [Child], born September 11, 2008 to his Mother's (Elizabeth Jackson) care and custody on June 1, 2020. And until said date, Mother is to have parenting for weekends beginning Saturday, April 4, 2020 from 10:00 A.M. to 6:00 P.M. and every other Saturday until June 1, 2020.

4. [Paternal Grandmother's] Verified Amended Petition to Establish Non-Party Custody shall be heard on June 1, 2020 at 1:00pm for three (3) hours in the Hancock Circuit Court.

(Id. ) (errors in original). On March 31, 2020, Paternal Grandmother filed a renewed motion to intervene, which the trial court granted on April 1, 2020. On April 28, 2020, Mother filed a motion for attorney's fees.

[7] The trial court held hearings on Paternal Grandmother's petition for non-party custody on June 1 and June 16, 2020. On July 7, 2020, the trial court issued its order granting Paternal Grandmother sole legal and primary physical custody of Child. The trial court granted Mother parenting time pursuant to the Indiana Parenting Time Guidelines. The trial court ordered Mother to submit income information for the determination of child support within seven days of the order and the trial court took the matter of attorney's fees under advisement pending Mother's submission of her income information.

[8] On July 27, 2020, Mother filed an appeal of the July 7, 2020, order. On August 4, 2020, the trial court issued an order that stated:

1. Any order of child support must be pled at this time due to the fact that issue was not fully litigated prior to the Court's ruling in the matter July 7, 2020.

2. The Court, having taken the matter of attorney fees under advisement, herby DENIES said motion based on the evidence presented at subsequent hearings held. The Court views that there was no indication of any behavior on the part of [Paternal Grandmother] that would warrant attorney fees despite the Court's concerns stated in its March 27, 2020 Order.

(Id. at 109.) On August 10, 2020, Paternal Grandmother filed a motion to establish child support. On October 22, 2020, our court dismissed Mother's appeal of the July 7, 2020, order because it was not a final judgment pursuant to Indiana Appellate Rule 2(A) based on the remaining issue of child support. On December 29, 2020, the trial court held a hearing on Paternal Grandmother's motion to establish child support. On December 30, 2020, the trial court ordered Mother to pay Paternal Grandmother $46.00 per week in child support, retroactive to August 10, 2020.

Discussion and Decision

1. Modification of Custody

[9] When a party requests modification of custody, we review the court's decision for an abuse of discretion, because we give wide latitude to our trial court judges in family law matters. Julie C. v. Andrew C. , 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010). When, as is the case here, a trial court makes findings of fact and conclusions of law sua sponte, our standard of review is well-settled:

[T]he specific findings control our review and the judgment only as to the issues those specific findings cover. Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence adduced at trial.

We apply the following two-tier standard of review to sua sponte findings and conclusions: whether the evidence supports the findings, and whether the findings support the judgment. Findings and conclusions will be set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility.

Trust No. 6011, Lake Cnty. Trust Co. v. Heil's Haven Condominiums Homeowners Ass'n , 967 N.E.2d 6, 14 (Ind. Ct. App. 2012), trans. denied. Mother does not challenge the trial court's findings, so they must be accepted as true. See Madlem v. Arko , 592 N.E.2d 686, 687 (Ind. 1992) (unchallenged findings must be accepted as correct).

[10] When a party besides the child's natural parent seeks custody of the child,

before placing a child in the custody of a person other than the natural parent, a trial court must be satisfied by clear and convincing evidence that the best interests of the child require such a placement. The trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child. The presumption will not be overcome merely because "a third party could provide the better things in life for the child." In a proceeding to determine whether to place a child with a person other than the natural parent, evidence establishing the natural parent's unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child and the third person, would of course be important, but the trial court is not limited to these criteria. The issue is not merely the "fault" of the natural parent. Rather, it is whether the important and strong presumption that a child's interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child's best interests are substantially and significantly served by placement with another person. This determination falls within the sound discretion of our trial courts, and their judgments must be afforded deferential review. A generalized finding that a placement other than with the natural parent is in a child's best interests, however, will not be adequate to support such determination, and detailed and specific findings are required.

In re Guardianship of B.H. , 770 N.E.2d 283, 287 (Ind. 2002) (internal citations omitted). In cases where a third party seeks custody, that "the burden of proof is always on the third party." In re Custody of McGuire , 487 N.E.2d 457, 461 (Ind. Ct. App. 1985).

[11] A trial court may not modify a child custody order unless modification is in the child's best interests and there is a substantial change in one or more of the factors set forth in Indiana Code section 31-14-13-2, and if applicable, Indiana Code section 31-14-13-2.5. Ind. Code § 31-14-13-6. Indiana Code section 31-14-13-2 states:

The court shall determine custody in accordance with the best interests of the child. In determining the child's best

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