failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous
How later courts described this case
- failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 29 2020, 11:06 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Jessica R. Merino Leonard J. Gullotta, II
J.Merino Law Walker and Gullotta Law Office
Granger, Indiana Elkhart, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Paternity of E.G.C., April 29, 2020
Minor Child, Court of Appeals Case No.
19A-JP-1519
Lisa Jacobs (Click),
Appeal from the Elkhart Superior
Appellant, Court
v. The Honorable David C.
Bonfiglio, Judge
Ryan Delagrange, Trial Court Cause No.
20D06-1511-JP-425
Appellee.
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020 Page 1 of 17
[1] Lisa Jacobs (Click) (“Mother”) appeals the trial court’s legal custody and
parenting time order. Ryan Delagrange (“Father”) requests appellate attorney
fees. We affirm the court’s order and deny Father’s request for appellate
attorney fees.
Facts and Procedural History
[2] E.G.C. was born on September 24, 2015. On January 27, 2016, the trial court
issued an order establishing paternity. In February 2016, Father filed a petition
to establish parenting time. On October 25, 2016, the court issued an agreed
order that the parties have joint legal custody and Mother have primary
physical custody subject to Father’s parenting time in accordance with the
Indiana Parenting Time Guidelines. The court appointed a guardian ad litem
(the “GAL”) in July 2017. Father filed a motion for rule to show cause in
September 2017 alleging Mother changed her primary address and did not file a
notice of intent to relocate. The GAL filed a report and supplemental report in
October 2017.
[3] On November 7, 2017, the court held a hearing at which the parties appeared in
person and by counsel, the GAL appeared, and Father’s counsel recited an
agreement into the record. According to the agreement, the paternal
grandmother would provide daycare for the child, Mother would have custody
until November 10, 2017, Father would then have custody until November 16,
2017, the parties would conduct a settlement conference on November 16,
2017, and if the parties could not reach an agreement at that time they would
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have joint legal and physical custody or a shared custody arrangement until a
trial was held. The court approved the agreement of the parties, and Father’s
counsel indicated he would submit an order for the court’s approval.
[4] On December 22, 2017, Father filed a petition to modify custody requesting
primary physical and sole legal custody of the parties’ child. In February 2018,
the court scheduled an evidentiary hearing for May 31 and June 1, 2018. The
GAL filed a report in May 2018. The court entered an Agreed Order on June
4, 2018, which the parties signed, providing that Father was awarded primary
physical custody of the parties’ child subject to Mother’s parenting time. It
provided Mother would have parenting time on Tuesday after work and
Thursday after work through Sunday every other week and on Wednesday after
work through Friday morning on the alternating weeks. The Agreed Order
further provided:
[] Both parties[’] “evidence” which was available at the time of the trial on
May 31, 2018 and June 1, 2018 shall be admissible at future hearings until a
Final Order from an Evidentiary Hearing is entered by the Court.
[] The parties agree the standard of review of the court relative to modifying
custody of [the child] shall be the best interest of [the child] and not a
continuing and substantial change of circumstances.
Appellant’s Appendix Volume II at 65.
[5] On August 31, 2018, Mother filed a motion to modify custody and parenting
time and requested a hearing. On October 9, 2018, Father filed a motion for
rule to show cause alleging Mother refused to comply with the court’s order
relative to paternal grandmother providing work-related daycare, failed to
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honor his designation as the child’s primary physical custodian, refused to
comply with the child’s primary physician’s recommendations, and changed
doctor appointments scheduled by Father. The same day, Father filed a
petition to modify custody and parenting time requesting sole legal custody of
the child and physical custody subject to Mother having parenting time
pursuant to the Indiana Parenting Time Guidelines. The GAL filed a report in
December 2018. On March 31, 2019, Mother filed an information for rule to
show cause alleging Father did not request Medicaid information from her,
refused to allow the child to receive dental care at the provider which had cared
for child previously, and took the child to his dentist.
[6] On April 11, 2019, the court entered a Nunc Pro Tunc Order stating that a
hearing had been held on November 7, 2017, at which the parties appeared in
person and by counsel, Father’s counsel recited an agreement into the record,
and the parties agreed paternal grandmother would provide daycare and, if the
parties were unable to reach an agreement, they would have joint legal and
physical custody or a shared custody arrangement. The order indicated the
court approved the agreement, both parents under oath stated they agreed to the
court’s orders at the hearing, Father’s counsel indicated he would submit an
order for the court’s approval, and the order was never filed.
[7] On April 11 and 22, 2019, and May 24, 2019, the court held a hearing at which
it heard testimony from the child’s physician, a nurse practitioner, the GAL,
Mother’s mother, a former daycare provider, Father’s mother, Father’s wife,
Mother, and Father. The parties presented numerous exhibits including
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photographs of the child, many text messages between the parents, and
Department of Child Services (“DCS”), medical, and financial records.
[8] On June 7, 2019, the trial court issued an order granting Father’s motion to
modify custody and parenting time and denying Mother’s motion to modify
custody and parenting time. The court found Mother in contempt based on
Father’s October 9, 2018 allegations, found Father in contempt based on
Mother’s March 31, 2019 allegations, and stated neither party was granted
attorney fees and there were no sanctions. The order further provided:
Custody and Parenting Time
Some of the most compelling evidence in this case are the parents’
unvarnished electronic communications with one another. At times the
parents treated each other with mutual respect and even helpfulness
demonstrating they are capable of mature behavior supportive of their
child’s needs. They are both young struggling adults trying to navigate
parenthood and relationships. Through miscommunication, dishonestly
[sic], power struggles and outright animosity for one another those
electronic communication[s] also reveal the very worst elements of the
parents. It is unfortunate that the worst of those elements dominate the
parents’ current high conflict relationship and adversely impact [the child].
It is a sad state of affairs with [the child] caught in the middle of their
struggles.
Overall. Father has the more stable record of employment, housing,
consistently taking the child for medical/dental care and he has a stable
relationship with his spouse. He has two other children with his spouse,
[M.]. In addition, [M.] appears to be the most stable and capable of three
caregivers; that is, Mother, Father and [M.].
Father is granted sole legal custody and primary physical custody subject to
Mother’s parenting time pursuant to the Indiana Parenting Time
Guidelines.
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Father has made some efforts to co-parent; mother sabotages those efforts
by confrontation, video taping and defensiveness. Father has been sarcastic
and disrespectful to Mother, but less so, than Mother. If only these parents
would choose the high road of cooperation and concern for their child’s
well-being, then [the child] would not be suffering in the manner she is
today.
This is a judgment call based on the evidence and the manner in which the
parents testified before the Court over a period of three days, sixty plus
exhibits comprising hundreds of pages that were submitted and examined,
as well as, video.
Mother is less stable as to employment, housing and she endangers the child
by transporting her without proper child restraint devices on several
occasions. She is also responsible for at least two years of the child being
infested with lice. The child’s experience with rashes are exacerbated by
Mother’s failure to observe proper hygiene and care. Mother has neglected
the child’s health care and dental needs and she appears responsible for poor
diet and eating habits leading to severe dental health issues.
The parents unreasonably fight about such basic things as doctor
appointments; therefore, placing one parent in charge of same, that being
Father because he has a better track record of providing for her care and this
order should reduce the chaos created over medical and dental care. To
quote the GAL: “They can’t agree on the day of the week it is, let alone
agree on a dentist.”
Mother has exposed the child to at least one potentially dangerous people
[sic]; that being, James Parkhurst, Robbery (Armed or Bodily Injury) in
48D03[-]1010-FB-461.
Mother is consistently defensive when discussing issues with Father.
Mother falsely accused Father in [a DCS] referral of inflicting harm and
neglecting [the child].
Just as severe is the emotional damage Mother inflicts on the child by
inciting the child when transitioning between parents. Mother utterly fails
to properly support transition to Father’s care. Mother creates a hostile
atmosphere between the parties by video recording exchanges. Mother
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completely failed to attempt to sooth[e] the child in [her] hysterical reaction
to the exchange on the video admitted into evidence. Mother routinely
strips the child and photographs every bump and bruise [she] may sustain.
It is more important to Mother to gain evidence against Father to sustain
and win litigation than to care for the needs of the child.
Mother overplays and exaggerates the conditions in Father’s home.
Father’s child, a two year [old] has had some “biting” issues. Father
explains that [the parties’ child] teases him and takes away his toys. Those
issues appear to have been addressed by Father and his wife and they are on
guard and they are ordered to provide vigilant parental supervision. Both
situations are resolved with constant supervision. When parents are on
notice there is a problem, they have to be vigilant in their supervision.
Father also avails himself of his camera to document lice at every turn, but
not to the extent that Mother uses video to record crisis in [the child’s] life.
All communication between the parents except for true emergency
situations are ordered made through Our Family Wizard. Another
exception is at child exchanges; the Court orders no video or other
recording of the child exchanges. At the exchanges the parents are ordered
to be pleasant with one another and they are ordered to exchange common
pleasant greetings that their child is able to hear. Examples being: “Hello”
“How Are You” “Nice to See You.” During such exchanges they should
attempt to “smile” at one another so that [the child] can see the smile. Each
parent [is] ordered to be verbally supportive of the child and encourage the
child to engage with the other parent in a positive manner. Example:
“[E.G.C.] have fun with daddy/mommy.” These orders are issued because
the parents need such basic instruction.
Parents ordered to not make negative or derogatory statement about the
other parent or allow anyone else to make derogatory statements about the
other parent within the hearing of [the child].
Parents ordered to provide [the child] with therapeutic intervention with
Jennifer Miller.
*****
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They are ordered to make an appointment with her within seven days of this
order. They are ordered to keep that appointment and all subsequent
appointments. The Parents are ordered to cooperate with that treatment
process and to participate in therapy with [the child] or individually or
together without [the child] as the therapist directs. They are further
ordered to be involved in any and all other therapeutic services directed by
Jennifer Miller or any other therapists involved in her treatment or
treatment they receive. GAL to contact therapist with background
information needed for therapy. Mother reports self-harming, night terrors
and tantrums. It is unknown after three days of courtroom evidence if these
are induced, aided and directed by Mother in order to make Father look bad
to win her case or systemic problems. On the other hand, the high conflict
between the parents may be the root of the problem. In any regard, [the
child] needs help and she needs peace in her life between her parents.
The Court has fashioned these orders with the goal of minimizing the harm
to [the child], provide her with coping skills and force the parents to change
their ways. The court finds the modification is in [the child]’s best interest
because they address her physical and emotional needs and although the
parents[] agreed that substantial change in circumstance is not required
there does exist substantial change in circumstance. [The child] has come
into harms’ way both physically and emotionally in Mother’s care and that
exposure must be limited for her wellbeing.
Child Support issues referred to the Title IV-D court . . . .
Id. at 39-42.
Discussion
I.
[9] Mother claims the trial court abused its discretion in granting sole legal custody.
Where a trial court enters findings of fact and conclusions, we first determine
whether the evidence supports the findings and then determine whether the
findings support the judgment. Lechien v. Wren, 950 N.E.2d 838, 841 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 19A-JP-1519 | April 29, 2020 Page 8 of 17
App. 2011). A judgment is clearly erroneous when a review of the record
leaves us with a firm conviction that a mistake has been made. Id.
[10] Mother argues that, while the trial court based its decision on evidence
presented over three days, the majority of the evidence related to matters prior
to the last custody proceeding, that evidence of the child’s rashes is the only
evidence qualifying as harm arising after the last proceeding, and “[t]he
discourse around [the child’s] rashes amounts to nothing more than lack of
cooperation between the parties due to strong opinions.” Appellant’s Brief at
20.
[11] Father responds that the court acted within its discretion in awarding him sole
legal custody and points to the court’s findings related to the parties’ electronic
communications and inability to agree on anything, Mother’s actions to
sabotage Father’s efforts to co-parent, and the parents’ unreasonable fights
about doctor appointments. He argues the court considered three days of
testimony, the manner in which the parties testified, and the GAL’s testimony
and recommendation that he be awarded sole legal custody. He also argues
that the parties entered into an agreed order expressly providing that evidence
available for the hearing scheduled for May 31 and June 1, 2018 would be
admissible at later hearings, there was no custody proceeding heard by the court
on May 31 or June 1, 2018, and Mother did not object to the admission of his
evidence.
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[12] We generally review custody modifications for an abuse of discretion with a
preference for granting latitude and deference to trial courts in family law
matters. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002); Gonzalez v. Gonzalez, 893
N.E.2d 333, 335 (Ind. Ct. App. 2008). We set aside the trial court’s ruling only
if it is clearly erroneous and will not substitute our own judgment if any
evidence or legitimate inferences support the court’s ruling. See Kirk, 770
N.E.2d at 307. On appeal, it is not enough that the evidence might support
some other conclusion, but it must positively require the conclusion asserted by
the appellant before there is a basis for reversal. Id.
[13] Ind. Code § 31-14-13-6 provides the court may not modify a child custody order
unless modification is in the best interests of the child and there is a substantial
change in one or more of the factors under Ind. Code § 31-14-13-2 and, if
applicable, Ind. Code § 31-14-13-2.5. Ind. Code § 31-14-13-9 provides that, in a
proceeding for a custody modification, the court may not hear evidence on a
matter occurring before the last custody proceeding between the parties unless
the matter relates to a change in the factors relating to the best interests of the
child as described in Ind. Code §§ 31-14-13-2 and -2.5. The factors in Ind. Code
§ 31-14-13-2 include: (1) the age and sex of the child; (2) the wishes of the
child’s parents; (3) the wishes of the child; (4) the interaction and
interrelationship of the child with the child’s parents and siblings and 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
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family violence by either parent; and (8) evidence the child has been cared for
by a de facto custodian.
[14] Ind. Code § 31-14-13-2.3(a) provides “the court may award legal custody of a
child jointly if the court finds that an award of joint legal custody would be in
the best interest of the child.” Ind. Code § 31-14-13-2.3(c) provides the court
shall consider:
(1) the fitness and suitability of each of the persons awarded joint legal
custody;
(2) whether the persons awarded joint legal custody are willing and able to
communicate and cooperate in advancing the child’s welfare;
(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) whether the child has established a close and beneficial relationship with
both of the persons awarded joint legal custody;
(5) whether the persons awarded joint legal custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so;
(6) the nature of the physical and emotional environment in the home of
each of the persons awarded joint legal custody; and
(7) whether there is a pattern of domestic or family violence.
“‘Joint legal custody’, for purposes of IC 31-14-13 . . . means that the persons
awarded joint custody will share authority and responsibility for the major
decisions concerning the child’s upbringing, including the child’s education,
health care, and religious training.” Ind. Code § 31-9-2-67.
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[15] The second factor above regarding willingness and ability to communicate and
cooperate in advancing the child’s welfare is of particular importance in making
legal custody determinations. See Milcherska v. Hoerstman, 56 N.E.3d 634, 641
(Ind. Ct. App. 2016). Where the parties have made child-rearing a
battleground, joint custody is not appropriate. Id. at 642. “Indeed, to award
joint legal custody to individually capable parents who cannot work together is
tantamount to the proverbial folly of cutting the baby in half in order to effect a
fair distribution of the child to competing parents.” Id. (citation omitted). The
primary concern of the courts with respect to legal custody is the welfare of the
children and not the wishes of the parents. See Carmichael v. Siegel, 754 N.E.2d
619, 635 (Ind. Ct. App. 2001).
[16] To the extent Mother does not challenge the court’s findings of fact, the
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver
of the argument that the findings were clearly erroneous), trans. denied. We
observe the Agreed Order on June 4, 2018, was signed by the parties, addressed
physical custody and Mother’s parenting time, and provided that evidence
which was available at the time of the May 31 and June 1, 2018 hearings,
which were cancelled, would be admissible at later hearings until a final order
was entered.
[17] The trial court found the most compelling evidence was the parents’ unvarnished
electronic communications with each other, referenced their miscommunication,
dishonesty, power struggles, and outright animosity for each other, and found the
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parents’ high-conflict relationship adversely impacted the child. The court found
Father has a more stable record of employment, housing, and consistency in
providing medical care and Mother is less stable as to employment and housing
and exacerbated the child’s rashes by failing to observe proper hygiene. It further
found Father has made some efforts to co-parent and Mother sabotages those
efforts, Mother is consistently defensive when discussing issues with Father, and
she fails to properly support the transitions to Father’s care and creates a hostile
atmosphere. The court found the parents unreasonably fight about such basic
things as doctor appointments and that its order should reduce the chaos created
over medical and dental care. The court noted that its decision was based on the
evidence and the manner in which the parents testified. The GAL recommended
that Father be awarded sole legal custody of the child. Based on the record and
in light of the parties’ history of non-cooperation and high level of
contentiousness, we cannot say the court abused its discretion in granting
Father sole legal custody of the parties’ child.
II.
[18] Mother next asserts the trial court abused its discretion by reducing her
parenting time and argues Father failed to show the parenting time schedule
endangered the child’s physical health or was causing impairment to her
emotional development. Father asserts the court made specific findings as to
how the child came into harm’s way physically and emotionally while in
Mother’s care, determined it was in the child’s best interest to limit her
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exposure to Mother, and properly ordered that Mother exercise standard
parenting time pursuant to the Indiana Parenting Time Guidelines.
[19] The Indiana Supreme Court has expressed a “preference for granting latitude
and deference to our trial judges in family law matters.” In re Marriage of
Richardson, 622 N.E.2d 178, 178 (Ind. 1993). Appellate deference to the
determinations of trial court judges, especially in domestic relations matters, is
warranted because of their unique, direct interactions with the parties face-to-
face, often over an extended period of time. Best v. Best, 941 N.E.2d 499, 502
(Ind. 2011). When a trial court has made findings of fact, we determine
whether the evidence supports the findings and whether the findings support the
court’s conclusions. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). To
determine that a finding or conclusion is clearly erroneous, our review of the
evidence must leave us with the firm conviction a mistake has been made. Id.
[20] Decisions involving parenting time rights under the paternity statutes are
committed to the sound discretion of the trial court. In re Paternity of W.C., 952
N.E.2d 810, 815 (Ind. Ct. App. 2011); see also Ind. Code § 31-14-14-1 (“A
noncustodial parent is entitled to reasonable parenting time rights unless the
court finds, after a hearing, that parenting time might: (1) endanger the child’s
physical health and well-being; or (2) significantly impair the child’s emotional
development.”). When reviewing the trial court’s decision, we neither reweigh
the evidence nor reexamine the credibility of the witnesses. In re Paternity of
W.C., 952 N.E.2d at 816.
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[21] The trial court entered findings regarding the contentious history between the
parents, Mother’s care for the child, and Mother sabotaging Father’s efforts to
co-parent and failing to support transitions to Father’s care. The court found
the modification was in the child’s best interest and awarded Mother parenting
time pursuant to the Indiana Parenting Time Guidelines. Under these
circumstances, and keeping in mind our deference to trial courts in family law
matters, we cannot say we are left with a firm conviction a mistake has been
made or the trial court’s decision is clearly erroneous.
III.
[22] Mother also asserts that she was held in contempt of an order never placed on
the record. Father argues the parties were present with counsel at the
November 7, 2017 hearing at which Mother under oath confirmed the parties’
agreement and the court subsequently issued a nunc pro tunc order to which
Mother did not object.
[23] It is soundly within the discretion of the trial court to determine whether a party
is in contempt. Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016). 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, secure obedience to its process and rules, rebuke
interference with the conduct of business, and punish unseemly behavior. Id.
[24] Indiana has codified the procedural requirements for finding indirect contempt
at Ind. Code § 34-47-3-5, which provides in part that the person charged is
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entitled “to be served with a rule of the court against which the contempt was
alleged to have been committed.” Reynolds, 64 N.E.3d at 832 (citing Ind. Code
§ 34-47-3-5(a)). Strict compliance with the statute may be excused if it is clear
the alleged contemnor had clear notice of the accusations against her. See id. at
833 (citations omitted).
[25] Here, we are satisfied Mother’s rights were preserved. Father alleged in
October 2019 that Mother had not complied with the court’s order that paternal
grandmother provide work-related daycare, did not honor the order that he had
primary physical custody, and changed doctor appointments scheduled by
Father. The record reveals the parties appeared in person and with counsel at
the November 7, 2017 hearing at which an agreement was recited into the
record, and the court’s subsequent nunc pro tunc order indicated both parties had
stated under oath they agreed to the court’s orders and had agreed that paternal
grandmother would provide daycare and that, if they were unable to reach an
agreement by November 16, 2017, they would have joint legal and physical
custody until a hearing was held. The court’s June 4, 2018 order awarded
Father primary physical custody. Mother does not demonstrate that she did not
have notice of the rule of the court against which the contempt was alleged to
have been committed. We also observe the trial court did not impose any
sanction. We do not find an abuse of discretion.
IV.
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Father requests appellate attorney fees, arguing Mother’s appeal is
unreasonable. This Court is authorized to assess damages if an appeal “is
frivolous or in bad faith,” and such damages “shall be in the Court’s discretion
and may include attorneys’ fees.” Ind. Appellate Rule 66(E). A strong
showing is required to justify an award of appellate damages, and the sanction
is not imposed to punish mere lack of merit, but something more egregious.
Bessolo v. Rosario, 966 N.E.2d 725, 734 (Ind. Ct. App. 2012), trans. denied. To
prevail on his request, Father must show that Mother’s arguments on appeal are
“utterly devoid of all plausibility.” See id. While we do not disturb the trial
court’s order, we cannot say Mother’s arguments on appeal are utterly devoid
of all plausibility or that an award of appellate attorney fees is appropriate.
[26] For the foregoing reasons, we affirm the trial court’s order and deny Father’s
request for appellate attorney fees.
[27] Affirmed.
Najam, J., and Kirsch, J., concur.
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