Robertson v. Robertson

• Decision Date: 28 July 2016
• Docket Number: No. 54A01–1509–DR–1374.,54A01–1509–DR–1374.
• Citation: 60 N.E.3d 1085
• Parties: Jessica ROBERTSON, Appellant–Petitioner, v. Brian ROBERTSON, Appellee–Respondent.
• Court: Indiana Appellate Court

60 N.E.3d 1085

Jessica ROBERTSON, Appellant–Petitioner,

v.Brian ROBERTSON, Appellee–Respondent.

No. 54A01–1509–DR–1374.

Court of Appeals of Indiana.

July 28, 2016.

Bryan L. Ciyou, Darlene R. Seymour, Ciyou & Dixon, P.C., Indianapolis, IN, Attorneys for Appellant.

Daniel G. Petrie, Henthorn, Harris & Weliever, Crawfordsville, IN, Attorney for Appellee.

PYLE

, Judge.

Statement of the Case

[1] In this child custody case, Jessica Robertson (“Mother”) argues that the trial court abused its discretion in modifying custody of the parties' two young children in favor of Brian Robertson (“Father”). On cross-appeal, Father argues that this Court does not have jurisdiction over the matter because Mother failed to timely file her Notice of Appeal. In light of Mother's attempt to perfect a timely appeal and the constitutional dimensions of the parent-child relationship, we review Mother's appeal on the merits. Further, because the evidence supports the trial court's modification of custody in favor of Father, we find no abuse of discretion and affirm.

[2] We affirm.

Issues

1. Whether this appeal is reviewable on the merits.

2. Whether the trial court abused its discretion in modifying custody in favor of Father.

Facts

[3] Mother and Father's marriage was dissolved in 2010. At that time, the dissolution court granted Mother custody of the parties' two children, K.R., born in 2006, and C.R., born in 2007. Mother married Damien Terry (“Stepfather”) in October 2014. In February 2015, Father filed a petition to modify custody and a request for a guardian ad litem (“GAL”). In the petition, Father alleged that Stepfather was “a bad influence and example for the children.” (App. 23). Specifically, Father alleged that Stepfather “use[d] illegal substances and ha[d], at times, been the sole caretaker of the children.” (App. 23).

[4] The trial court appointed a GAL, which filed its report in July 2015. The trial court subsequently held a two-day hearing on Father's petition on August 7 and August 12, 2015. Testimony at the hearing revealed that Father was stationed in the military at Fort Riley, Kansas. He had requested an early discharge because of family issues and expected to be released from his military obligation within sixty days. He planned to relocate to Crawfordsville, Indiana, to be closer to his children and was seeking employment in the area. He also planned to further his education at Ivy Tech. At the time of the hearing, Father spoke with the children on the phone two to three times per week and had just spent ten days with them.

[5] Father expressed concern that when he talked to his children on the telephone, Stepfather frequently interrupted the conversation and told the children what to say. At times, the children told Father that they could not answer his questions because Stepfather would be angry. Father also expressed concern that K.R. was in the car with Stepfather when Stepfather was arrested for driving while suspended. Father was also worried that Stepfather has fallen asleep holding a cigarette in his hand. Father testified that he had remained close to Mother's family, and that Mother's mother (“Grandmother”) and Mother's sister (“Aunt”) both supported his request for custody of the children.

[6] Grandmother testified that she has observed significant changes in the children's behavior since Mother married Stepfather. Specifically, K.R. recently cried and asked Grandmother to call the police so that he would not have to return to Mother's home. Grandmother explained that Mother used to be very attentive to her children but had moved them to “the back burner” following her marriage to Stepfather. (Tr. 123). Grandmother opined that it was not in the children's best interests to continue in Mother's custody.

[7] Mother's friends, Adam and Nekisha Shahan (“Adam” and “Nekisha”), who also testified at the hearing, noticed that K.R. and C.R. had become lethargic and withdrawn. Adam and Nekisha's children regularly played with K.R. and C.R. until Mother married Stepfather. At the time of the hearing, Mother regularly denied requests for the children to play together. Adam further testified that the children now cowered when he reached out to hug them or pat them on the head. He also testified that he attended a family Christmas dinner with Mother's family in 2014. At one point, when K.R. walked past Stepfather and said nothing, Stepfather grabbed K.R. by the arm and screamed, “I told you it's not time to open presents yet so go sit down.” (Tr. 84

). That same day, Stepfather passed out at the dinner table while he was eating and later rested his head on a window sill while standing at the sink. Adam also saw Stepfather “down on one knee talking to this cat in weird voices, just like, like he was having a conversation with it.” (Tr. 85 ). Nekisha, a registered nurse that routinely works with addicts and patients abusing prescription medications, believed that Stepfather was abusing controlled substances. She also believed that it was not in the children's best interests to continue in Mother's custody.

[8] The GAL testified that Stepfather did not treat the children kindly and had a forceful attitude with them. The GAL pointed out that Stepfather had a criminal record, was unemployed, and tried to isolate Mother and the children from Mother's family and friends. The GAL recommended that custody of the children be placed with Father because: (1) Mother placed her relationship with Stepfather ahead of her relationship with her children; (2) Stepfather was not a proper role model; and (3) it was not in the children's best interests to continue in Mother's custody. The GAL agreed that Stepfather “coming into the picture [was] a continuing and substantial change of circumstances.” (Tr. 314).

[9] During the hearing, Stepfather admitted that he had a criminal history that included convictions for burglary, theft, unlawful possession of a syringe, possession of a synthetic drug, and driving while suspended. He also admitted that he took prescription pain relievers for his back, including hydrocodone

, percocet, and oxycodone , and neurotonins, including gabapentin, for nerve damage in his legs. He admitted that he had hit C.R. for playing at the dinner table and that he had driven with K.R. in the car when he knew that his license was suspended.

[10] As part of its consideration of changed circumstances, the trial court interviewed K.R. in chambers. However, the interview was not recorded. At the end of the two-day hearing, the trial court orally concluded that “based upon the evidence that the child[ren]'s welfare ... is at risk in the continued custody of their mother, ... the children shall be placed immediately in the custody of their father until further order of the Court.” (Tr. 322). Because Mother had requested special findings pursuant to Indiana Trial Rule 52(A)

, the trial court gave the parties fourteen days to submit their proposed findings. That same day, the trial court issued a written provisional order which awarded Father temporary emergency custody until further order of the court and ordered the parties to submit proposed findings of fact and conclusions no later than August 26, 2015. The trial court also ordered Father to notify the court within forty-eight hours of “who shall be named as temporary custodian in case Father becomes unable or unwilling to continue as custodian due to his death or disability.” (App. 16).

[11] Two days later, on August 14, 2015, Father filed a motion to appoint Aunt as temporary custodian for the children, which the trial court granted. That same day, Mother filed an objection to the form of Father's motion as well as a motion to restore primary custody to her should Father leave the area without the children. On August 18, the trial court issued an order, which denied Mother's request to restore primary custody to her.

[12] Both parties filed proposed findings of fact and conclusions on August 26, 2015. On September 11, 2015, before the trial court entered a final custody modification order, Mother filed a Notice of Appeal, wherein she stated that she was appealing the trial court's: (1) August 12 order regarding temporary emergency custody; (2) August 14 order regarding the appointment of a temporary custodian; and (3) August 18 order regarding Mother's objection to the form of Father's motion to appoint a temporary custodian and motion to restore physical custody.

[13] Shortly thereafter, on October 19, Father filed a notice of relocation and a motion to terminate the temporary custodian, wherein he explained that he had been honorably discharged from the army and had returned to Indiana where he was living with Grandmother. An entry in the Chronological Case Summary (“CCS”) reveals that the trial court took no action on the motion “due to jurisdiction being with Indiana Court of Appeals.” (App. 13).

[14] Father also filed in this Court a Motion to Dismiss Mother's appeal. Specifically, Father argued that Mother's appeal should be dismissed because it was not the appeal of a final order. According to Father, the trial court could not issue Mother's requested findings of fact and conclusions until the appeal was dismissed. Mother responded that these appealed orders, which modified custody “under the guise of being ‘temporary’ ” and appointed a third party as the Children's guardian, were “de facto if not actual, final custody [o]rders.” (Mother's Response 2). This Court's motions panel denied Father's motion to dismiss, temporarily stayed the appeal, and ordered the trial court to issue its final findings of fact and conclusions on Father's custody modification petition.

[15] The trial court issued its final order, which included ten pages of findings of fact and conclusions, on January 19, 2016. In the order, the trial court concluded that based on the evidence presented at the hearing, modification of custody in favor of Father was in the children's best interests. The court further...