L.C. v. T.M.

• Court: Indiana Appellate Court
• Writing for the Court: BAKER
• Citation: L.C. v. T.M., 996 N.E.2d 403 (Ind. App. 2013)
• Decision Date: 09 October 2013
• Docket Number: No. 32A01–1303–DR–91.,32A01–1303–DR–91.
• Parties: In re the Marriage of L.C., Appellant–Respondent, v. T.M., Appellee–Petitioner.

996 N.E.2d 403

In re the Marriage of L.C., Appellant–Respondent,

v.T.M., Appellee–Petitioner.

No. 32A01–1303–DR–91.

Court of Appeals of Indiana.

Oct. 9, 2013.

Deborah M. Agard, Law Office of Deborah M. Agard, Indianapolis, IN, Attorney for Appellant.

OPINION

BAKER, Judge.

In this case, appellant-respondent, L.C. (Mother) challenges the trial court's denial of her petition to modify custody of the parties' two children, K.M. and D.M. The original order that was entered in 2007 provided that Mother and appellee-petitioner, T.M. (Father), share both legal and physical custody over the children. Mother resides in Carmel where the children attended school and Father lives in Mooresville. Both of the children play in a Carmel travel soccer league that continues throughout the year.

Because of the logistics involved in the soccer league, the children's desire to live with Mother, and other changed circumstances that have occurred since 2007, Mother filed a petition for custody modification that the trial court subsequently denied. Mother asserts that the trial court's reliance on the parties' initial agreed shared physical custody arrangement as a basis for denying the modification request is clearly erroneous because of the changed circumstances and modification is in the children's best interests.

After reviewing the record, we believe that Mother presented sufficient evidence at trial warranting modification of custody. More particularly, Mother demonstrated that substantial changes in circumstances have occurred since the entry of the original decree, and that a change in the original physical custody order is in the children's best interests. Therefore, we conclude that the trial court's judgment denying Mother's petition was clearly erroneous. Thus, we reverse the judgment of the trial court and remand this cause with instructions that an order be entered based on the evidence presented that modifies the custody arrangement in accordance with the children's best interests.

FACTS

Mother and Father divorced in 2007, and submitted their partial custody, support, and property settlement agreement that the trial court approved on November 16, 2007. Under the agreement, the parents shared legal and physical custody of their children, D.M., born in 1999, and K.M., born in 2001. The children stay with Father, who resides in Mooresville, on Mondays, Tuesdays and alternate weekends from Friday through Sunday. They are with Mother on Wednesdays, Thursdays, and alternate weekends from Friday through Sunday. Mother lives in Carmel and the children are enrolled in the Carmel school system.

At some point, the trial court appointed a parenting coordinator for the family. Various orders were issued between September 2008, and April 2010, based on the parenting coordinator's recommendations. These orders primarily concerned the parties' reimbursement of expenses to each other, email exchanges, and counseling services.

In the trial court's order of September 18, 2008, it was determined that

Father will enroll children in fall sports and cover the sign-up costs of each. Mother will enroll children in spring sports and cover the sign-up costs of each. Parents agree to purchase necessary equipment for each child for each sport to have at their house.

Appellant's App. p. 24.

When the children began the 2011–12 school year, the transportation arrangement changed so that all of Father's parenting time exchanges occurred at the Sam's Club parking lot on the west side of Indianapolis. On the days that D.M. and K.M. are scheduled to be in school, Father drives them from his home to the exchange point, and Mother or her husband picks up the children and takes them to school.

Mother enrolled K.M. in travel soccer in the spring of 2012, and the program lasts the entire year. D.M. was in her second year playing for Carmel's travel soccer team. Mother sought to modify the parties' physical custody arrangement to better accommodate the children's schedules, the travel distance between the parties' residences, and the difficulties that the children were encountering when they stayed with Father.

Mother averred in her petition to modify custody filed on June 7, 2012, that substantial changes in circumstances had occurred. In particular, Mother contended that the children are required to spend many hours in the car being transported between Carmel and Mooresville, that the children expressed a strong desire to live with their mother, and that the children would benefit from having a structured routine primarily in their mother's home. In fact, there were instances where the children had to do their homework in the car while being transported from one residence to another.

At the hearing that was conducted on November 12 and December 4, 2012, the Guardian ad Litem (GAL) testified that if the current arrangement is maintained, the children will become very angry with Father and it will “irreparably harm his relationship with his children.” Tr. p. 65–67. The GAL pointed out that because of the distance involved and the children's desires to be with their friends, they—along with Mother—want to spend every other weekend with Father, rather than continuing to spend Mondays and Tuesdays at his residence. The children had also reported that there was some measure of distress they perceived as negative and disparate treatment of them in Father's home as compared to the more favorable treatment of their step-siblings. The GAL also testified that the current arrangement will likely “drive a huge wedge between Dad and his children.” Id. at 66.

Following the GAL's interviews with both parents, the step parents, the children, the parenting coordinator, a therapist, a prior GAL who has worked with the family, and the Carmel soccer coach, the GAL recommended that the parenting arrangement be modified such that:

1. [The children] spend every other weekend from Friday evening ... through Sunday ... with Father, and

2. All exchanges for the children will be at a parent's home following the current Indiana Parenting Time Guideline recommendation that the receiving parent picks up the child, and

3. If Father wishes to add a Sunday overnight to his weekend, Father is responsible for transporting the children to school on time for the start of school ... and

4. Father ensures that [the children] are at all commitments associated with their travel league soccer including practices, games and tournaments, and 5. If Father is unable, unwilling, incapable of fulfilling his obligation to getting the children to their soccer commitments that he forego his parenting time with [D.M.] and/or [K.M.], alternately Father may make appropriate timely arrangements for [D.M.] and/or [K.M.] to meet the commitments (carpooling, asking Mother to facilitate, etc.), and

6. Father is encouraged but not required to exercise a mid-week visit (no overnight) with the children (as soccer practices may well be during these evenings), and

7. If at all possible Father is encouraged to attend practice, scrimmage, or games as often as he is reasonably able to do so, and

8. The parents should continue to work with the Parenting Coordinator ... regarding the extended parenting time (school breaks, summer, etc.).

GAL Rpt. p. 16.

Following the hearing, the trial court determined that Mother's enrollment of K.M. in the travel soccer league was a direct violation of the 2008 order that requires Mother to enroll the children in spring sports, and Father to enroll them in fall sports. Moreover, the trial court found that Mother failed to prove that a substantial change has occurred in at least one of the statutorily enumerated factors set forth in Indiana Code section 31–17–2–8. In denying Mother's petition to modify custody, the trial court specifically found that

8. The Court understands that travel between the parents' homes is inconvenient but these parents agreed to joint legal and joint physical custody of the children and equal parenting time. A significant part of the inconvenience here stems from the children's involvement in soccer. Both parents support the children's involvement in soccer. Therefore, the parents and children must accept and deal with the personal inconvenience that the children's soccer programs create.

Appellant's App. p. 21.¹ Mother now appeals.

DISCUSSION AND DECISION

As noted above, Mother argues that the trial court erred in denying her motion to modify custody. Specifically, Mother contends that the trial court's reliance on the parties' original shared custody arrangement as a basis for denying the petition misapplies the law that governs custody modifications. Mother argues that the evidence established that the physical custody arrangement should be modified because the circumstances have substantially changed since the entry of the original decree, and that modification is in the children's best interests.

I. Standard of Review

We initially observe that Father did not file an appellee's brief. When an appellee does not submit a brief, we do not undertake the burden of developing arguments for that party. Spencer v. Spencer, 990 N.E.2d 496, 496 (Ind.Ct.App.2013). Instead, we apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id. Prima facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind.Ct.App.2006).

Custody modification lies within the sound discretion of the trial court, and the decision will be reversed only upon a showing of manifest abuse of discretion. Fields v. Fields, 749 N.E.2d 100, 107–08 (Ind.Ct.App.2001). Such an abuse occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. at 108. We will neither judge the credibility of witnesses nor reweigh the evidence. Id.

Neither party requested, nor did the trial court enter, special findings in...