In Re the Marriage of: Amy Steele-Giri v. Brian K. Steele

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Jill S. Swope Debra Lynch Dubovich

Sterba & Swope, LLP Levy & Dubovich

Schererville, Indiana Merrillville, Indiana

Mar 15 2016, 10:32 am

Julia Blackwell Gelinas John M. Rhame, III

Abigail T. Rom Rhame & Elwood

Margaret Lee Smith Portage, Indiana

Frost Brown Todd, LLC

Indianapolis, Indiana

In the

Indiana Supreme Court

No. 45S04-1512-DR-00682

IN RE THE MARRIAGE OF

AMY STEELE-GIRI,

Appellant (Respondent below),

v.

BRIAN K. STEELE,

Appellee (Petitioner below).

Appeal from the Lake Superior Court, No. 45D03-0606-DR-00617

The Honorable Elizabeth F. Tavitas, Judge

The Honorable Nanette K. Raduenz, Magistrate

On Petition to Transfer from the Indiana Court of Appeals, No. 45A04-1412-DR-00600

March 15, 2016

David, Justice.

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Facts and Procedural History

Brian Steele (“Father”) and Amy Steele-Giri (“Mother”) divorced in 2007. They have

one minor child, J.S., who was two (2) years old at the time of the divorce. Initially, the parties

had joint legal and physical custody of J.S. Thereafter, Mother planned to move to California to

be with her now-husband, Dr. Giri. At that time, Father had been cohabiting with his girlfriend,

Brenda Guth, for the previous two (2) years. By agreement of the parties and based on the

appointed guardian ad litem’s (GAL) report, the trial court granted an agreed order giving

primary physical custody to Father. In the GAL’s report, she stated that Father had a flexible

work schedule and that Ms. Guth was a stay-at-home mother. Mother was granted liberal

parenting time including visits every four (4) to six (6) weeks, as well as visits during spring

break, summer, and anytime she was in Indiana upon giving Father 48 hours’ notice. The parties

continued to share joint legal custody.

Since the initial custody modification, several changes have occurred in both households.

Mother and her new husband, Dr. Giri, had a son, a half-brother to J.S. Additionally, Dr. Giri

took a ten (10) year contract position in Oregon. Mother and her family moved to Oregon, and

Mother became a stay-at-home mom. Father changed jobs from one that had flexible hours to a

new job where he had to work 12 hours shifts. Around the same time, Father’s girlfriend,

Ms. Guth, started full-time work at a local school and thus, was no longer a stay-at-home mom.

Because of these schedule changes, J.S. was enrolled in both before and after school care. Father

did not initially tell Mother about these changes. Childcare records reflect that J.S. was dropped

off at before school care in the morning between 7:10 and 7:30 a.m. and then after school, she

was transported by bus to after school care at the Boys & Girls Club, where she remained until

she was picked up in the evenings. The pick-up times varied. There were several occasions

where J.S. remained in after school care until approximately 8:00 p.m or later. Father testified

that J.S. enjoys her time at the Boys & Girls Club, she has friends there and she engages in

activities such as soccer, crafts and dances there. On occasion, J.S. has requested to stay there

later.

Since beginning elementary school, J.S. has experienced some academic difficulties. Her

school sent home letters indicating that she was either recommended to or required to attend

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summer school after both 1st and 2nd grades. Father did not advise Mother of the summer school

recommendation and requirement, nor did he enroll J.S. in summer school. Mother was further

removed from decision-making regarding J.S.’s education because her contact information was

not initially included in J.S.’s school registration form. Also, while J.S. has passed the ISTEP

test, she has struggled and needed extra help. However, despite J.S.’s initial struggles in school,

her third grade teacher reported to the GAL that she is pleased with J.S.'s academic progress and

that J.S. works very hard. J.S.’s academic performance has improved each year.

Ms. Guth has two children from a prior relationship that live in the home with her and

Father. While with Father, J.S. shares a room with Ms. Guth’s daughter, M.G., who is

approximately 4 years older than J.S. J.S. has struggled to get along with M.G. Mother reported

to the GAL that M.G. fights with and shoves J.S. However, Father has characterized the

relationship between the girls as a sibling rivalry and indicated that their arguments were

“normal kids’ stuff.” (App. at 63.) The GAL also put in her report and testified that there had

been some improvement in the girls’ relationship. Also, Father has remodeled the girls’ room so

that each of them could have some privacy.

Based on the changed circumstances of both parents, Mother filed a verified petition for

modification of custody and a verified motion for rule to show cause why Father should not be

held in contempt for not complying with the Court’s legal custody order. The GAL interviewed

all the parties and filed a report wherein she stated that she felt like there were no objective

witnesses she could rely upon and that she believed that both parents had attempted to influence

J.S.’s reports and comments to her. She therefore declined to make a formal recommendation

regarding which parent should be granted physical custody. She did, however, note concerns

about the amount of time J.S. spent in the care of someone other than her Father, as well as

concerns that J.S. was having to share a room with M.G., with whom she has “not been able to

happily coincide, for all these years.” (App. at 79.) The GAL stated that the opportunity for J.S.

to live with Mother was “appealing” and that she believes it would be nice if J.S. could have an

opportunity to live with Mother in Oregon to see if J.S. “flourished in that setting.” (App. at 80-

81.) She also stated that Father is a wonderful dad and that J.S. enjoys a close relationship with

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her paternal grandparents. She stated that J.S is "blessed to have two (2) parents who love and

adore her" and that J.S. could not choose between them. (App. at 81.)

The trial court entered findings of fact and conclusions of law sua sponte and denied both

Mother’s request for modification of custody and motion for rule to show cause (contempt).

Mother appealed. The Court of Appeals majority reversed the trial court on both issues. Steele-

Giri v. Steele, 40 N.E.3d 513 (Ind. Ct. App. 2015). As for the custody issue, the Court of

Appeals majority determined that some of the trial court findings were erroneous. Specifically,

the Court of Appeals found that the trial court’s finding characterizing J.S.’s relationship with

M.G. as merely a sibling rivalry and the finding that J.S. was well-adjusted to school were

erroneous. Id. at 522-523. The Court of Appeals also concluded that the trial court generally

applied an erroneous standard in that it focused solely on Father’s situation in making its

determination, instead of looking at the changes to both households and the impact on the child.

Id. at 524. It also found that Father was in contempt for making unilateral decisions about J.S.’s

education and by not sharing information with Mother. Id. 527-528. Judge Barnes dissented,

concluding that while the evidence could have supported a custody modification, it did not

compel that result. Id. at 529 (Barnes, J., dissenting).

Mother filed a motion for immediate compliance with the Court of Appeals opinion, and

the Court of Appeals issued an order transferring physical custody of J.S. to Mother in Oregon.

J.S. has been living with Mother in Oregon since that time. Father sought transfer, which we

granted after hearing oral argument. Steele-Giri v. Steele, 41 N.E.3d 690 (Ind. 2015) (Table).

We vacated the Court of Appeals’ opinion and the order transferring custody to Mother. Indiana

Appellate Rule 58(A); (Order Granting Transfer, December 14, 2015). We further ordered

Mother to transfer physical custody back to Father during J.S.’s winter break from school.

(Order Granting Transfer, December 14, 2015.)

We hold that the trial court did not err in denying Mother's motions for custody

modification and for contempt. In light of the highly deferential standard of review afforded to

trial courts in family law matters and in contempt matters, the Court of Appeals should have

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affirmed the trial court. Accordingly, we affirm the trial court’s denial of Mother’s motions for

custody modification and for contempt.

Standard of Review

I. Child Custody

The trial court entered findings of fact and conclusion of law in its order denying

modification of custody. Pursuant to Indiana Trial Rule 52(A), the reviewing court will “not set

aside the findings or judgment unless clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge the credibility of the witnesses.” D.C. v. J.A.C., 977

N.E.2d 951, 953 (Ind. 2012) (internal quotation and citations omitted). Where a trial court enters

findings sua sponte, the appellate court reviews issues covered by the findings with a two-tiered

standard of review that asks whether the evidence supports the findings, and whether the findings

support the judgment. In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014) (citation omitted). Any issue

not covered by the findings is reviewed under the general judgment standard, meaning a

reviewing court should affirm based on any legal theory supported by the evidence. Id.

Additionally, there is a well-established preference in Indiana “for granting latitude and

deference to our trial judges in family law matters.” In re Marriage of Richardson, 622 N.E.2d

178 (Ind. 1993). 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.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley

v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). “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.” Id. “Appellate judges are not to

reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most

favorably to the judgment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted).

The party seeking to modify custody bears the burden of demonstrating the existing

custody should be altered. Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992) (citation omitted).

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Indeed, this “more stringent standard” is required to support a change in custody, as opposed to

an initial custody determinations where there is no presumption for either parent because

“permanence and stability are considered best for the welfare and happiness of the child.” Id.

(citation omitted).

II. Rule to Show Cause (Indirect Contempt)

“It is soundly within the discretion of the trial court to determine whether a party is in

contempt, and we review the judgment under an abuse of discretion standard.” Witt v. Jay

Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012) (citation omitted). “We will reverse a trial

court's finding of contempt only if there is no evidence or inference therefrom to support the

finding.” Id. The trial court has the inherent power to “maintain[ ] its dignity, secur[e] obedience

to its process and rules, rebuk[e] interference with the conduct of business, and punish[ ]

unseemly behavior.” Id.

Discussion

I. Child Custody

Indiana Code § 31-17-2-21 provides that a trial court “may not modify a child custody

order unless: (1) the 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 [Ind. Code § 31-17-2-

8]. . .” Ind. Code § 31-17-2-8 provides that the trial court is to consider all relevant factors,

including:

(1) The age and sex of the child.

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

(B) the child's sibling; and

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

interests.

(5) The child's adjustment to the child's:

(A) home;

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(B) school; and

(C) 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. . .

A child custody determination is very fact-sensitive. In this case, the trial court listened

to evidence over the course of two days. It heard testimony from Father, Mother, Ms. Guth,

Dr. Giri and the GAL. The parties presented documentary evidence such as J.S.’s school and

child care records and Father’s work records. The trial court examined each of the factors listed

above, considered the changes in both households and determined that it was in J.S’s best

interests that custody not be modified. Nevertheless, the Court of Appeals determined that two

(2) of the trial court’s findings were erroneous and that there was a substantial change of

circumstances warranting a custody modification. However, there was evidence in the record to

support each of the trial court’s factual findings such that they were not clearly erroneous.

Additionally, even assuming that these two (2) factual findings were erroneous, there is still

ample evidence in the record to support a determination that a custody modification is not in

J.S.’s best interests.

A. The trial court’s factual findings were not clearly erroneous.

“Findings of fact are clearly erroneous when the record lacks any evidence or reasonable

inferences from the evidence to support them.” In re Paternity of Winkler, 725 N.E.2d 124, 126

(Ind. Ct. App. 2000) (citation omitted). Here, while there may be conflicting evidence about: 1)

the relationship between J.S. and M.G.; and 2) J.S.’s adjustment to school, there is nevertheless

evidence in the record that would support these trial court findings. We will address each of

these findings in turn.

1. Relationship between J.S. and M.G.

With regard to J.S.’s interaction and interrelationship with her Father, Ms. Guth and

Ms. Guth’s children, the trial court found:

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Father has had a long term relationship with his live in girlfriend,

Brenda Guth. They have lived together for nine years. Brenda’s

two children, [A.G.], 16 years old, and [M.G], 14 years old, also

live at the residence with Father and [J.S.] It is undisputed that

[M.G.] and [J.S.] fight “like sisters.” There was no evidence that

the fighting was anything more than sibling rivalry. There was no

evidence of physical violence between the girls. There was no

evidence that Father or Brenda played favorites with either child.

The girls share a bedroom. Father and Brenda have taken extra

steps to ensure that both girls have their private space to the best of

their ability. [J.S.] has a good relationship with Ms. Guth and

[A.G.]

(App. at 19.)

There is conflicting evidence in the record regarding J.S.’s relationship with M.G. On the

one hand, J.S. has struggled to get along with M.G. Mother reported to the GAL that M.G. fights

with and shoves J.S. The GAL noted her own concerns about J.S.’s relationship with M.G.: “It

also troubles me that at [Father’s] house [J.S.] has been forced to share a bedroom with [M.G.],

with whom she has not been able to happily coincide, for all these years.” (App. at 79.)

However, the GAL qualified her statement by stating she “would never suggest that a child be

placed [in Mother’s home] because there is more money available.” (Id.) On the other hand,

Father has characterized the relationship between the girls as a sibling rivalry and indicated that

their arguments were “normal kids’ stuff.” (App. at 63.) Additionally, the GAL noted in her

report and testified that there had been some improvement in the girls’ relationship.

Mother disagrees with these factual findings, specifically the characterization of the

fighting between J.S. and M.G. as a “sibling rivalry” and the statement that there is “no evidence

of physical violence.” (App. at 19.) However, the trial court heard the testimony of the parties

and reviewed the GAL’s report. It was within the trial court’s discretion to credit Father’s

characterization of the relationship between J.S. and M.G. as a sibling rivalry. Father has had the

opportunity to observe the relationship between the girls on a regular basis. There was also

evidence that the relationship between the girls was improving. Accordingly, we find that the

trial court’s determination that the relationship between J.S. and M.G. is akin to a sibling rivalry

is not clearly erroneous as there is a factual basis for this finding.

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The trial court finding that there is “no evidence of physical violence between the girls”

may be a bit strong in light of evidence that Mother reported to the GAL that she feels M.G.

shoves J.S. However, there are no details or specifics about this shoving in the record and

curiously, Mother did not testify regarding the alleged shoving during the trial court proceeding.

It was within the trial court’s discretion to discredit this second-hand report of alleged shoving.

While perhaps not precisely drafted, the trial court’s finding that there was no physical violence

between J.S. and M.G. is not clearly erroneous.

2. J.S.’s adjustment to school.

With regard to J.S.’s adjustment to school the trial court found:

Since the entry of the last order, [J.S.] has adjusted well to school

and the community where her Father lives. . .

(App. at 19.)

There is also mixed evidence in the record about J.S.’s adjustment to school. It is

undisputed that beginning in elementary school, J.S experienced some academic difficulties. Her

school sent home letters indicating that J.S. was either recommended to or required to attend

summer school after both 1st and 2nd grades. Also, while J.S. has passed the ISTEP test, she has

struggled and needed extra help. However, despite J.S.’s initial struggles in school, her third

grade teacher reported to the GAL that she is pleased with J.S.’s academic progress, and that J.S.

works very hard. Also, J.S.’s academic performance has improved each year.

Despite this conflicting evidence regarding J.S.’s school performance, the Court of

Appeals majority determined that the trial court finding that J.S. was well adjusted to school was

erroneous, adopting Mother’s position that J.S. “is denied an opportunity to reach her full

academic potential,” and further that “J.S.’s academic skills are not aided by the enormous

amounts of time that J.S. spends in daycare.” Steele, 40 N.E.3d at 522.

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However, for a finding to be clearly erroneous, there must be no evidence to support it.

See In re Paternity of Winkler, 725 N.E.2d at 126. Here, although there is evidence that J.S.

struggled in school, there is also evidence that J.S.’s performance was improving and that her

teacher was pleased with her progress. Because there is evidence to support the finding that J.S.

is well adjusted to her school, this finding is not clearly erroneous.

Also, as Father points out, the trial court made two separate findings with regard to J.S.’s

schooling. The first is quoted above. There is another related finding that provides in relevant

part:

. . . There is no evidence to support Mother’s contention that [J.S.]

is under-performing at school. . . It is possible that Mother could

help [J.S.] raise her grades. The [c]ourt finds that Father is equally

concerned with the child’s performance and is working with the

teachers and school officials to help the child with her studies. The

[c]ourt finds that Father is not neglecting or endangering the child

by allowing her to stay at the day care. . .

(App. at 20.) This finding was not contested by Mother nor found to be erroneous by the Court

of Appeals majority. Father argues that while the first finding is related to J.S.’s adjustment to

school, the latter relates to her performance. He further argues that if adjustment means J.S.’s

relationship with her teachers and other students, then the finding is not clearly erroneous and

supports the trial court’s order. Finally, he argues that even if performance in school and

adjustment to school are one in the same, because there is conflicting evidence on this issue, the

trial court’s findings should not be disturbed.

We agree with Father. The trial court made a finding about J.S.’s adjustment to her

school and community and then, in a separate but related finding, acknowledged concerns about

J.S.’s school performance. It also noted each parent’s ability and efforts to address J.S.’s

academic performance and assist her with her studies. There is no evidence that J.S. struggled to

get along with her teacher or other students. Thus, if adjustment to school means J.S.’s

relationships within the school environment, the finding that she is well adjusted to school is not

clearly erroneous. On the other hand, even if J.S.’s school performance does factor into her

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adjustment to school, because there is at least some evidence to support that finding, it is still not

erroneous.

B. The trial court’s finding that modification of custody is not in J.S.’s best interests is

supported by the record.

As discussed above, in order for the trial court to modify custody, it must find both that:

1) modification is in the best interests of the child; and 2) there is a substantial change in one or

more of the factors enumerated in the custody modification statute. Ind. Code § 31-17-2-21.

Here, the trial court found that it was in J.S.’s best interests that custody not be modified and that

there were no significant changes in Father’s situation that would justify a custody modification.

The trial court order provides:

[A]lthough Mother’s situation might be better now, there has been

no significant change in circumstance in Father’s situation that

would justify a modification of custody.

(App at 20-21.)

As Mother points out, a change in circumstances “must be judged in the context of the

whole environment, and the effect on the child is what renders a change substantial or

inconsequential.” Jarrell v. Jarrell, 5 N.E.3d 1186, 1193 (Ind. Ct. App. 2014), transfer denied

(internal quotation and citation omitted). Here, while the trial court order stated that there was

“no significant change in circumstance in Father’s situation that would justify a modification of

custody” and did not make an explicit conclusion about Mother’s circumstances, in its order, it

did acknowledge the significant changes in Mother’s household that would necessarily impact

J.S. (App. at 20-21.) For example, the trial court found that Mother had gotten married and had

another child, a sibling to J.S., and that Mother had become a stay-at-home mom.

Notwithstanding the changes in both households, the trial court did not find that a custody

modification was warranted. The trial court was in the best position to determine the impact of

all the changes on J.S.

When considering a custody change a “more stringent standard” is required than for an

initial custody determination because “permanence and stability are considered best for the

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welfare and happiness of the child.” Lamb, 600 N.E.2d at 97 (citations omitted). Again, the

party seeking to modify custody bears the burden of demonstrating the existing custody should

be altered. Kirk, 770 N.E.2d at 307. Thus, it makes sense that the trial court would place

emphasis on the Father’s circumstances. Nevertheless, even if we were to find that the changes

in the parties’ circumances were substantial, this alone does not warrant a custody modification;

the best interests of J.S. must be considered.

There was ample evidence for the trial court to conclude that a custody modification was

not in J.S.’s best interests. The trial court found that:

[d]ue to Father’s work schedule, he would not have additional time

available, nor the financial ability, to travel to Oregon on a regular

basis to visit [J..S.] should custody be changed. The [c]ourt finds

that a change in physical custody would significantly decrease

Father’s parenting time with [J.S.] The [c]ourt further finds that

such reduction in the time spent with her father, is not in the

child’s best interest.

(App. at 21.) The trial court further found that Mother did have the ability to travel and that she

would continue to be able to enjoy regular parenting time with J.S., even if Father retained

custody. The trial court also noted J.S.’s “especially close” relationship with her paternal

grandparents. (App. at 19.) These findings are supported by the record. For instance, in the

GAL’s report she stated that J.S. “adores her father” and that her “close relationship with her

paternal grandparents is a point against moving to Oregon.” (App. at 80.) The GAL also noted

that Father has to work long hours and that he and his parents were concerned about not being

able to see J.S. if she were to move to Oregon. Thus, notwithstanding whether the changes in the

parents’ households were substantial and whether the trial court’s findings with regard to: 1)

J.S.’s relationship with M.G.; and 2) her adjustment to school were erroneous (they were not), in

order to modify custody, the trial court had to find that doing so was in J.S.’s best interests. In

light of the negative impact a custodial change would have on J.S.’s relationship with her Father

and paternal grandparents, the trial court found that it was not in J.S.’s best interests for custody

to be modified. This finding is supported by the record and must be affirmed.

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II. Contempt

A person who is guilty of any willful disobedience of any process, or any order lawfully

issued:

(1) by any court of record, or by the proper officer of the court;

(2) under the authority of law, or the direction of the court; and

(3) after the process or order has been served upon the person;

is guilty of an indirect contempt of the court that issued the process or

order.

Ind. Code § 34-47-3-1.

The parties have joint legal custody of J.S. Pursuant to Ind. Code § 31-9-2-67, the parties

must share “authority and responsibility for the major decisions concerning the child’s

upbringing, including the child’s education, health care, and religious training.” Mother argues

that Father is in contempt of the court’s order giving the parties joint legal custody by not

keeping her informed about J.S’s summer school recommendations, J.S.’s report cards and J.S.’s

before and after school care. She also faults Father for failing to include her information on

school and child care records and denying her parenting time when she was in Indiana on two

occasions.

The trial court found that Father did not willfully fail to comply with the joint legal

custody order. Instead, the trial court found that where information is available to Mother

directly from the school, Father cannot be said to be in willful violation of the order. Also, the

trial court found that Father believed information was being passed from J.S. to her Mother

(albeit wrongfully). Noting communication problems with both parents, the trial court

admonished both parties to communicate directly with each other. The trial court also found that

the 48 hour time-frame for Mother to notify Father that she intended to exercise visitation was

too short, such that it caused conflict in the parties’ schedules. Thus, it revised the custody order

to allow for more advance notice to Father when Mother planned to visit Indiana and exercise

parenting time.

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The Court of Appeals reversed the trial court and found that Father made a unilateral

decision not to enroll J.S. in summer school and that he otherwise passive-aggressively did not

inform Mother about J.S.’s academic performance and child care situation as a way to exclude

her participation in J.S.’s upbringing. Steele, 40 N.E.3d at 527-528. It found that the trial court

order was against the logic and effect of the facts and circumstances and that allowing Father to

willfully ignore court orders would “incentivize Father to continue on the trodden path.” Id. at

529.

Like with the custody determination, trial courts are given great deference in contempt

actions. Witt, 964 N.E.2d at 202 (citations omitted). “Crucial to the determination of contempt

is the evaluation of a person's state of mind, that is, whether the alleged contemptuous conduct

was done willfully.” Id. Here, the trial court found that Father’s conduct was not willful. It was

in the best position to weigh the evidence and assess Father’s credibility. There was evidence in

the record from which the trial court could determine that Father’s conduct was not willful. For

instance, the GAL testified that she was not sure that Father saw some of the correspondence

from the school that Mother complained Father never provided to her. Also, Father testified that

he believed Mother had access to J.S.’s school records online and that Mother had told him she

was receiving notices from the school. The Court of Appeals should not have substituted its

judgment about whether Father’s conduct was willful for that of the trial court. The trial court

did not abuse its discretion in denying Mother’s motion for contempt.

Conclusion

As we noted above, we give substantial deference to trial court judges in family law

matters. “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.” Kirk, 770 N.E.2d at 307 (emphasis added) (footnote omitted). Here, while the

evidence might have supported Mother’s motion for custody modification, such modification

was not required. There was ample evidence to support the trial court’s determination that a

custody modification was not in J.S.’s best interests. Similarly, in light of the highly deferential

standard of review for contempt matters and the fact that there was evidence from which the trial

court could determine that Father’s failure to abide by the court’s legal custody order was not

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willful, the Court of Appeals should have deferred to the trial court on this issue as well.

Accordingly, we affirm the trial court’s denial of Mother’s motion for custody modification and

motion for contempt.

Rush, C.J., Dickson, Rucker and Massa, J. J., concur.

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