Description:
Indianapolis, IN - Divorce lawyer represented Appellant with contending that the court abused its discretion in awarding legal and primary custody to Father.
Charles Ramey, III ("Fatherâ€) and Ashley Day-Ping ("Motherâ€) were married
in 2014 and had their son P.R. ("Childâ€) in November of that year. In 2016,
Mother petitioned for dissolution of the marriage, and, as part of a settlement
agreement, the parties agreed that Mother would have sole legal and physical
custody of Child with Father's visitation phasing in over time.
[2] Beginning early in 2017, Mother and Father beb>gan accusing each other of
suspected abuse of Child. At one point, Child was temporarily removed from
Mother's care, and, at another point, Father's visitation was temporarily
suspended. In August of 2019, Mother petitioned the trial court to order that
Father's visitation be supervised, which motion the trial court granted. Mother,
however, failed to complete the intake process at the visitation facility, and
Father had no visitation with Child from November of 2019 to August of 2020,
when the trial court found Mother to be willfully in contempt of court and
ordered that she serve thirty days in jail if she did not allow visitation to
resume.
[3] Meanwhile, Father had moved to modify custody in June of 2020, and, in
February of 2021, the trial court granted the motion, awarding Father sole legal
and primary physical custody of Child. Mother appealed, and, in August of
2021, we reversed the judgment of the trial court and remanded with
instructions to reconsider the evidence. In October of 2021, the trial court again
awarded Father sole legal and primary physical custody of Child and $9000.00
of attorney's fees on remand. Mother contends that the trial court abused its
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 3 of 43
discretion in awarding sole legal and primary physical custody of Child to
Father and in awarding Father attorney's fees. Because we disagree with
Mother's contentions, we affirm.
Facts and Procedural History
[4] Most of the underlying facts of this case were related in our opinion in Day-Ping
v. Ramey, 175 N.E.3d 844 (Ind. Ct. App. 2021), trans. denied ("Day-Ping Iâ€),
which was handed down on August 20, 2021:
[2] Mother and Father were married April 25, 2014. Child was
born November 13, 2014. Mother filed for dissolution on July
18, 2016. On September 28, 2016, the Department of Child
Services ("DCSâ€) received a report that Mother was neglecting
Child by allowing him to wander around Mother's hair salon and
play with a bottle of hair dye. DCS investigated and found the
report to be unsubstantiated. On January 17, 2017, the trial court
accepted the parties' settlement agreement and granted
dissolution of the marriage. As it pertained to Child's custody,
the parties' settlement agreement provided, in relevant part:
The parties agree that [Mother] shall have sole legal and
physical custody of [Child]. [Father] shall have parenting
time the week of January 16, 2017 for two hours on
Tuesday from 5:30 p.m. to 7:30 p.m. and two hours on
Saturday from 12:00 noon to 2:00 p.m. Thereafter,
[Father] shall have parenting time for two hours on
Tuesday from 5:30 p.m. to 7:30 p.m. and six hours on
Saturday from 12:00 noon to 6:00 p.m. for a period of six
weeks ("The Phase-in Periodâ€). Thereafter, [Father] shall
have parenting time in accordance with Indiana Parenting
Guidelines, including but not limited to the holiday
schedule and ancillary provisions, with the exception that
[Father's] overnights with [Child] shall not commence
until [Child's] fourth birth date. The Indiana Parenting
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Guidelines, unless otherwise deviated from herein, are
adopted in entirely [sic] by the parties. If [Father] does not
exercise his parenting time, the schedule shall not progress.
However, if [Mother] prevents [Father] from exercising his
parenting time as set out herein, the schedule shall
progress. During the Phase-in Period, [Father] shall
provide direct eyesight supervision and care for [Child]
during his parenting time and may not delegate this task to
anyone else. [Father] shall not consume alcohol during
his parenting time. [Father] shall not exercise his
parenting time in any location where anyone present is
engaging in illegal activity. [Father] shall not have
unrelated third parties present during his parenting time.
[Father] shall provide all transportation for his parenting
time, which must comply with all legal requirements,
including proper child restraints.
The parties also agreed Father would pay Mother $119 per week
in child support.
[3] On July 27, 2017, Mother reported to DCS that Father had
physically abused her and Child on multiple occasions in the
past. On the same date, Mother reported to DCS that Child had
returned from Father's care with injuries to his genitals. On
August 5, 2017, Mother reported to DCS that she suspected
Father had molested Child based on alleged injuries in Child's
genital area. On August 6, 2017, Mother contacted DCS to
report additional injuries in Child's genital area that she had
discovered after Father's parenting time the previous day. On
August 21, 2017, Mother contacted DCS to again report that
Child returned from Father's care with injuries to his genital
area. On August 28, 2017, DCS received a report that Mother
was abusing Child based on a blister found in his genital area that
was allegedly not present during Father's last exercise of
parenting time. Following that report, DCS removed Child from
Mother's care on an emergency basis and placed him with
Father.
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[4] DCS filed a petition alleging Child was a Child in Need of
Services ("CHINSâ€) based on Mother's neglect. The juvenile
court held fact finding hearings on October 3 and 7, 2017. It
ultimately denied the CHINS petition and ordered Child
returned to Mother's care. Subsequently, Mother filed an action
in federal court pursuant to 42 U.S.C. §1983 claiming the two
DCS family case managers who investigated the CHINS
allegations against her violated her civil rights. The claim settled
out of court and Mother received a settlement in her favor for
$988,000.00.
[5] From November 2017 through August 20, 2019, the parties
filed numerous petitions and reports related to parenting time
that are not relevant to the matter before us. On August 20,
2019, Mother filed a petition requesting modification of Father's
parenting time and asked that Father's parenting time be
supervised because Child was "very resistant†to going with
Father when dropped off for Father's parenting time and Mother
"opine[d] that [Child's] resistance to his Father is due to things
that are said and done to [Child] during [Father's] parenting
time.†On December 11, 2019, the trial court held a hearing on
Mother's petition to modify Father's parenting time. On
December 14, 2019, Father filed a motion to, in relevant part,
modify custody, parenting time, and child support.
[6] On December 26, 2019, the trial court ordered Father's
parenting time, which consisted of two midweek visits lasting
two hours each and one four-hour visit on alternating weekends,
supervised by Youth Connections. The trial court ordered
Mother to "leave the visitation site, including the building and
parking lot, after she drops off [Child]. Mother shall not return
to the visitation site until the end of Father's parenting time.â€
Further, the trial court ordered Mother to ensure Child does not
"wear any smart watch or similar device to Father's parenting
time or during Father's parenting time.†The order also required
Mother, Father, and Child to submit to mental health and
custody evaluations conducted by Dr. Linda McIntire.
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[7] On January 10, 2020, Father filed a motion to modify the
parenting time supervisor because Youth Connections was
"unable to accommodate the requested visitation schedule.â€
Father asked the court to change the parenting time supervisor to
Mending Fences and requested that "the court order the parties
[to] contact Mending Fences within 24 hours to schedule intake
and complete their intake within 2 business days.†On January
24, 2020, the trial court granted Father's request and changed the
parenting time supervisor from Youth Connections to Mending
Fences. The trial court ordered Mother and Father "to contact
Mending Fences within 24 hours to schedule their intake and
complete said intake within 2 business days.†Mother never
completed the intake with Mending Fences "for reasons that
were disputed including the effects of the pandemic that started a
few weeks later.â€
[8] On June 23, 2020, Father filed a motion to hold Mother in
contempt, alleging, in relevant part:
3. [Mother] to date has failed to complete the intake per
the order.
4. [Mother] changed her phone number on or about
February 21, 2020. Mending Fences contacted [Mother's]
counsel requesting [Mother] setup her intake.
5. [Mother] called Mending Fences with her new
telephone number on February 26, 2020. [Mother's]
intake was scheduled for March 4, 2020. [Mother] arrived
at her intake with her husband. [Mother] was previously
advised via telephone that third parties were not permitted
to attend the intake.
6. [Mother] refused to sign the intake form and the intake
was rescheduled for March 16, 2020.
7. Mending Fences has reached out to [Mother] several
times and [Mother] still has not scheduled her intake.
8. At this point, Mending Fences is doubtful that
visitations can occur in its facility.
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9. [Father] has not had parenting time with [Child] since
November 12, 2019.
On the same day, Father filed a motion to modify parenting time
and a request for an expedited hearing.
[9] The trial court held hearings on Father's contempt motion on
July 29 and August 3, 2020. On August 4, 2020, the trial court
entered an order finding, in relevant part:
1. In the January 24, 2020 Order, both parties were
ordered to: "... to contact Mending Fences within 24
hours to schedule their intake and complete said intake
within 2 business daysâ€. [sic]
2. As of the August 3, 2020 hearing, [Mother] has still not
completed the intake process. The service provider
reported to the Court that they had "never had a case like
this beforeâ€. [sic] Further, they had wasted so much time
and effort without even completing the intake process, that
they would no longer be willing to accept the case for
supervision.
3. Mother's obstinance effectively eliminated this service
provider as a means to accommodate Father's courtordered opportunity to visit with [Child].
4. [Mother] has engaged in a pattern of behavior clearly
intended to frustrate this Court's Order, as well as the
Court's efforts to reinitiate parenting time between Child
and [Father].
5. Father has had no parenting time with [Child] since
November 2019.
6. The Court, therefore, finds that [Mother] is in willful
contempt of this Court's order.
7. The Court notes that previously, on June 6, 2017,
[Mother] was strongly admonished by Judge Marla Clark
that "... The Court reminds Mother that it expects Father's
parenting time to take place as ordered and that she faces
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 8 of 43
potentially serious sanctions for denying parenting timeâ€.
[sic]
8. Father is no closer today to having regular (or any)
parenting time with his son than he was in June of 2017.
9. [Mother] is hereby sentenced to serve thirty (30) actual
days in the Johnson County Jail for her contempt.
10. The Court stays imposition of the sentence and will
allow [Mother] the opportunity to purge her contempt.
[Mother] may purge her contempt by henceforth abiding
by the strict terms of this Court's parenting time order,
without exception, excuse or subversion.
The trial court further ordered Father to have parenting time
pursuant to the Indiana Parenting Time Guidelines, with Mother
arranging transportation to and from Father's residence for the
first ninety days. The trial court also ordered Mother to pay
$1,000.00 of Father's attorney's fees and ordered Mother to
refrain from sending Child to Father's house with a "'smart
watch' or any other GPS device capable of tracking [Child]
during Father's parenting time.â€
[10] On December 1, 2020, Dr. Linda McIntire submitted her
custody evaluation to the trial court. On January 6, 2021,
Mother made a motion for specific findings by the court pursuant
to Indiana Trial Rule 52. On January 12 and January 15, 2021,
the trial court heard evidence on Father's motion for
modification of custody. On February 15, 2021, the trial court
issued its order, which transferred sole legal and primary physical
custody of Child from Mother to Father; ordered Mother to pay
$137 in child support per week; ordered Mother to pay $9,000.00
of Father's attorney's fees; and appointed Father's girlfriend,
Jordan McHenry ("Girlfriendâ€), as Child's temporary custodian
in the event of Father's death.
Id. at 847–50 (footnotes and record citations omitted; all bracketed material in
original). In Day-Ping I, we took judicial notice of a complaint Mother had filed
in Johnson Superior Court under cause number 41D01-1908-CT-122 ("Cause
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No. CT-122â€) against Father and Girlfriend for malicious prosecution and
intentional infliction of emotional distress. Day-Ping I, 175 N.E.3d at 852. The
lawsuit was based on Father and Girlfriend's August 28, 2017, report to DCS of
their suspicions that Mother had been abusing Child, after which DCS removed
Child from Mother's care on an emergency basis and placed him with Father
for forty-four days. That civil case, which was resolved in June of 2021, or
approximately four months after the custody order at issue in Day-Ping I,
resulted in a jury awarding $100,750.00 each from Father and Girlfriend to
Mother. Id.
[5] We reversed the award of sole legal and primary physical custody of Child to
Father and remanded with the following instructions:
We reverse the trial court's decision and remand for
reconsideration of the evidence based on the entirety of the
circumstances concerning these parties. Absent exigent
circumstances, the court shall order the parties to revert to the
terms of the original Settlement Agreement, entered into on
January 16, 2017, and approved by the court on January 17,
2017, upon receipt of this opinion. This reversion shall remain in
effect pending the outcome of a new hearing, which shall be
conducted within thirty days from the date of this opinion.
Id. at 854–55.
[6] On September 14, 2021, the trial court held a hearing, at which it heard
argument but no additional evidence, in accordance with Day-Ping I. On
October 25, 2021, the trial court issued its custody order on remand, which
provides, in relevant part, as follows:
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10. Subsequent to [Child]'s return to Mother's custody,
Father continued to have difficulty obtaining his parenting time.
11. The exchanges of [Child] for parenting time became
difficult and Father was not receiving his parenting time.
12. In August 2019, Mother sought to modify Father's
parenting time to supervised parenting time.
13. On December 11, 2019, this Court heard Mother's
allegations against Father. Due to the nature of Mother's
allegations against Father, the length of time since Father had
received visitation, and in an effort to get some visitation going
between father and son, the Court granted a temporary parenting
time order that restricted Father's parenting time to supervised
parenting time. Father's parenting time, initially, was to be
supervised through Youth Connections.
14. At the December 11, 2019 hearing, this Court, on its
own motion, ordered the parties and the minor child to submit to
a mental health evaluation conducted by Dr. Linda McIntire.
15. This Court also, on its own motion, ordered Dr.
Linda McIntire to conduct a custody evaluation regarding
[Child].
16. Parenting Time never occurred at Youth
Connections because they were not able to accommodate
parenting time as ordered by the Court.
17. On January 24, 2020, the Court ordered that
Mending Fences facilitate Father's supervised parenting time.
The parties were ordered to contact Mending Fences within 24
hours to schedule their intake and complete said intake within
two (2) business days. The Order of the Court was placed on the
CCS on January 29, 2020 and sent to the parties' counsel on
January 30, 2020.
18. Father contacted Mending Fences on January 30,
2020 and completed his intake on January 31, 2020.
19. Mother did not first contact Mending Fences until
February 21, 2020.
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20. Ultimately, Mother never completed her intake with
Mending Fences.
21. Kelli Young at Mending Fences attempted several
times to facilitate the completion of Mother's intake, but Mother
provided multiple and varying excuses for her failure to comply
with the Court's order. Mending Fences personnel testified they
had "never had a case like this beforeâ€. Further, that they had
wasted so much time and effort without even completing the
intake process that they would no longer be willing to accept
supervision of the case.
22. Mother's testimony regarding her attempts to
complete her intake and reasons for not completing the intake
was not credible.
23. Mother engaged in a pattern of behavior clearly
intended to frustrate this Court's Order, as well as the Court's
efforts to reinitiate parenting time between [Child] and Father.
24. As a result of Mother's obdurate conduct, Father's
supervised parenting time at Mending Fences never commenced
and Mending Fences was lost as [a] resource.
25. Father had no parenting time with [Child] from
November 2019 to August 2020.
26. Mother was found to be in willful contempt of the
Court's January 24, 2020 Order. The Court noted:
"Petitioner/Wife has engaged in a pattern of behavior clearly
intended to frustrate this Court's order, as well as the Court's
efforts to reinitiate parenting time between [Child] and his father.
Father is no closer today to having regular (or any) parenting
time with his son than he was in June of 2017.â€
27. Previously, in 2017, Mother had been strongly
admonished by Judge Marla Clark that: "... The Court reminds
Mother that it expects Father's parenting time to take place as
ordered and that she faces potentially serious sanctions for
denying parenting timeâ€.
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28. Father was ordered to receive parenting time
pursuant the Indiana Parenting Time Guidelines with his first
weekend parenting time to commence on Friday, August 14,
2020.
29. When [Child] was delivered for his first parenting
time with Father, he arrived with a whistle and informed Father
that Mother said [Child] needed the whistle to protect himself
and that [Child] should blow the whistle in case he needed help.
This, after the Court had previously ordered that the (five-yearold) child not be sent for visitation wearing a "smart watch†or
other GPS device capable of tracking [Child] during Father's
parenting time, as he had been before.
30. Mother's pattern of conduct, in effect, conveyed to
[Child] the message that he was in danger from his own Father.
Alternatively, [Child] became an instrumentality of Mother's
own underlying mental/emotional health issues or her efforts to
undermine the father-son relationship.
31. The parties participated in an independent courtordered custody evaluation conducted by Dr. Linda McIntire.
The evaluation included mental health evaluations.
32. At the conclusion of the custody evaluation, Dr.
McIntire's report and recommendations were filed with the
Court.
33. Dr. McIntire strongly recommends that Father be
granted full legal custody and primary physical custody. Further,
that "this change of custody should happen sooner, rather than
laterâ€.
34. This recommendation is based upon several factors,
including but not limited to:
a. [Child's] speech impairment that has gone
unaddressed by Mother who has sole legal custody;
b. Mother's psychological issues and medical
instability;
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c. Mother's alienating behavior of [Child] towards
Father;
d. Mother's significant elevation of paranoia and
overwhelming belief that she is under attack;
e. Mother's specific coaching of [Child] to make
allegations against Father;
f. Mother's undermining of Father and [Child]'s
relationship;
g. Father's parenting style more appropriately
addresses [Child]'s behavior than Mother's parenting style;
h. [Child] has enjoyed a good relationship with Father;
i. [Child] has a good relationship with Father's
fiancé[e], Jordan McHenry;
j. [Child] has a good relationship with his half-sister[];
k. Father addressed [Child]'s speech problems when
[Child] was placed with Father;
l. Father would facilitate a positive relationship
between [Child] and Mother.
m. The harms [Child] is incurring in Mother's care
which places him at greater risk for poor outcomes.
35. From 2017 to present, multiple individuals have
observed "paranoid†behavior by Mother, including but not
limited to, Dr. McIntire, Lee Heap (CASA) [("CASA Heapâ€)],
and [Mother's expert] Dr. [Randall] Krupsaw.
36. Mother's expert, Dr. Jenuwine, raised questions
regarding Dr. McIntire's custody evaluation and her procedure
for the same. Dr. Jenuwine did not personally examine or
evaluate any of the parties involved.
37. The Court finds that Dr. Jenuwine's assessment was
based in part, if not entirely, on documents provided by Mother's
counsel and not based on the documents used by Dr. McIntire to
complete her custody evaluation. Dr. Jenuwine could not
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confirm that he actually received or reviewed the documents used
by Dr. McIntire, other than the raw data from the psychological
testing.
38. Dr. Jenuwine testified that Mother described that
Dr. McIntire performed an ink blot (Rorschach) test on her as
part of her evaluation. Dr. McIntire's report was criticized by
Dr. Jenuwine for the use of such a test for purposes of a custody
evaluation and for failing to reference it in her report.
39. On rebuttal, Dr. McIntire testified that not only did
she not administer a Rorschach test to Mother, but that she has
never administered one as part of a custody evaluation.
40. These statements by Mother call into question
Mother's credibility, her mental status, and/or her ability to
accurately recall and relate events.
41. Mother presented a second expert witness, Dr.
Randall Krupsaw. Dr. Krupsaw had prepared a previous report
in connection with other litigation. He also prepared a letter or
report in connection with this proceeding. Dr. Krupsaw, did not
conduct his own custody evaluation. He did not interview or
evaluate Father. Dr. Krupsaw's second report relied upon
documents and information provided by Mother or her counsel.
42. Dr. Krupsaw, among other things, opined that Dr.
McIntire's evaluation was consistent with current basic
professional practice guidelines/standards.
43. Dr. Krupsaw agreed that there are many unknowns
around the harm that [Child] experienced surrounding the
removal by the Department of Child Services.
44. Dr. Krupsaw was unable to state with certainty that
any harm came to [Child] due to the removal by DCS or
parenting time with Father.
45. As between the report and findings of the Court's
appointed evaluator, Dr. Linda McIntire, and those of Mother's
experts, Dr. Jenuwine and Dr. Krupsaw, the Court finds Dr.
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McIntire's findings to be the more compelling, reasonable and
consistent with the evidence.
46. Mother's unaddressed mental health issues have
impacted [Child] negatively.
47. [CASA Heap] reviewed Dr. McIntire's report and
stated it was reflective of her experience with the parties.
48. [CASA] Heap is in agreement with the
recommendations of Dr. McIntire, noting that [Child]'s situation
had gotten worse since her report to the Court in April 2018.
49. [CASA] Heap finds Father to be a kind, stable
parent whose interactions with [Child] are loving.
50. Parenting time exchanges occur without issue when
Mother is not involved in the exchanges.
51. Mother provided conflicting recitations of events to
Dr. McIntire.
52. Mother provided conflicting recitations of events to
[CASA Heap].
53. Mother was not credible during her testimony
before this Court.
54. Mother has only recently commenced counseling
for co-parenting and high conflict resolution.
55. As of the hearing, Mother had not engaged in the
mental health counseling recommended by her medical providers
and Dr. McIntire.
56. In short, the Court's own observations of Mother's
demeanor and presentation, as well as her history of behavior
throughout this case, are consistent with the conclusions of Dr.
McIntire as to Mother's mental and emotional state.
57. Father's income is established at $1,280.00 gross per
week.
58. Mother's income is imputed at $787.00 gross per
week.
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59. Both Father and Mother have a subsequent born
child.
60. Father carries the health insurance for [Child] and
the cost associated with said insurance is $123.69 per week.
61. Father incurred attorney fees in the amount of
$18,587.50.
62. Mother incurred attorney fees (Ron Waicukauski
only) and expenses in the amount of $72,906.95. Mother's
documented fee request does not reflect the additional attorney
fees incurred for counsel Linda Meier, Mark McNeely, and
Grace Dillow.
63. Neither party asked for reallocation of the fees paid
to Dr McIntire. In addition to the above prior Findings, after
remand and further hearing, the Court now makes the following
additional FINDINGS:
64. The Court of Appeals took judicial notice of the
following facts, which facts this Court, therefore, adopts: During
the pendency of this proceeding, Mother filed a complaint in the
Johnson Superior Court against Father and Girlfriend for
malicious prosecution and intentional infliction of emotional
distress. Subsequent to the judgment (this Court's Order on
Petition to Modify Custody and Related Issues), the Johnson
Superior Court held a five-day trial on Mother's complaint
against Father and Girlfriend[.] [...] The jury in that case
awarded Mother $90,750.00 each from Father and Girlfriend in
compensatory damages, and $10,000.00 each from Father and
Girlfriend in punitive damages. (Order, 41D01-1908-CT-122,
June 19, 2021.)
65. As noted, the trial court was not aware, and could
not have been aware, of the civil judgment noted above, as it had
not yet happened as of the date of the custody modification
hearing herein. Little evidence was referenced as to this matter
by the parties.
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66. Petitioner/Father notes that, notwithstanding Ind.
Evidence Rule 201(e), he was not given an opportunity to be
heard prior to the Court taking Judicial Notice of subsequent
facts.
67. Each of the parties have been the subject of
unsubstantiated DCS reports.
68. [Child], is a male child. He is now six (6) years old,
four (4) years older than at the time of the original decree and
settlement agreement.
69. Mother wishes to retain custody of [Child].
70. Father wishes that he be awarded legal and physical
custody of [Child]. His wishes have changed since the prior
settlement agreement.
71. The child neither testified, nor was he interviewed
in camera.
72. The child expressed a desire to remain with Mother
during Dr. McIntire's interview and custody evaluation.
73. Given [Child]'s tender age, as well as the pressures
exerted upon him, the Court gives little weight to [Child]'s wish
as expressed to Dr. McIntire.
74. The child has a positive and loving relationship with
[Father] and [Father]'s fiancé[e]. This, despite periods in the past
where Father's parenting was interrupted and actively interfered
with by [Mother]. [Child] is not fearful of his father.
75. [Child] and Mother are bonded and love each other.
Their interaction and interrelationship, however, is not strictly a
healthy one from a mental and emotional standpoint.
76. Mother and [Child] are enmeshed to a disturbing
degree. Their interaction and interrelationship negatively
impacts [Child]'s mental and emotion[al] health and well-being.
77. Mother has exhibited fear-inducing behaviors
toward [Child]. She has actively attempted to alienate [Child]
from his father, to the point where she has been admonished by
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the Court and ultimately held in contempt of court for interfering
with court ordered parenting time.
78. The custody evaluation characterized Mother's
behavior as "alienatingâ€, which the other evidence supports.
79. [Child] has siblings in both his mother's and his
father's home. At his father's, [Child] has a strong resilient
relationship with his older sister[.] He also has a baby sister,
toward whom he displays "sweet affectionâ€. At his mother's
home [Child] has a younger half-brother [] with whom he is also
strongly bonded. [Child] is protective of his little brother and, in
turn, [his younger half-brother] admires [Child]. [Child] enjoys
spending time with all his siblings and has positive relationships
with all his siblings.
80. Based upon past history, further interruption of
Father's parenting time with [Child] will interfere with [Child]'s
relationship with his siblings in his father's home.
81. A change of custody from Mother's home would
not significantly harm [Child]'s relationship with his half-sibling
there. This conclusion is supported by Dr. McIntire's custody
evaluation.
82. The child has positive relationships with his
stepfather.
83. [Child] has positive relationships with his extended
family on both sides.
84. The child is well adjusted in each parent's home.
85. The child was well adjusted in school generally,
however, struggles with getting along with other students.
[Child]'s grades for the first semester at Trader's Point indicate
that he was meeting or exceeding grade level. The COVID
pandemic caused the need for distance learning since.
86. [Child] was, as of the hearing, relatively new to his
community. With his young age and the ongoing COVID
conditions, his interactions in the community were limited.
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87. Mother has a history of mental health issues and
instability. Testing reveals her to have significant levels of
paranoia. Dr. Jenuwine offers that this is possibly "situational in
natureâ€. Previously, she was diagnosed with ADHD,
depression, and panic attacks. She has consistently neglected or
refused to genuinely engage in mental health treatment in the
past.
88. Mother's mental health issues are serious. They
have impacted [Child] negatively. [...] Dr. McIntire[] strongly
opines that Mother's condition places [Child] at serious risk.
89. [Child] has a speech impediment that has gone
untreated in Mother's care. The speech impediment negatively
affects [Child]'s healthy development and also interferes with his
social interactions with other children and fellow students.
90. Father did provide speech therapy for [Child] when
[Child] was placed with him in 2017. If custody were to change
[Child] would attend Cloverdale Elementary School. The school
has a licensed speech pathologist. The school also has behavioral
therapy available through the Cummings Program.
91. Mother alleges domestic violence. Father denies
domestic violence.
92. Dr. McIntire notes: that MMPI tests can be
indicative of abuse. In this case, there is no evidence of domestic
abuse, but it cannot be ruled out. Dr. McIntire points out that
Mother indicated to [a Riley Hospital Social Worker] that Father
had been arrested for abusing her while pregnant. This was
found to be untrue. Mother indicated Father had been
substantiated on physical abuse by DCS. This was found to be
untrue. Mother indicated to her that Father had been arrested for
battery with injury on a child, also found to be untrue.
93. Dr. McIntire did not utilize any other psychological
tests to assess for domestic violence. Father did not meet the
criteria for any such assessment. Any such test would have been
professionally inappropriate because Father has never been
adjudicated for any offense involving violence.
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 20 of 43
94. In performing her custody evaluation Dr. McIntire
utilized appropriate validity scales calculated to validate the
credibility of information provided by the subjects, as well as
attempts to present themselves in a more favorable light, or to
otherwise skew tests results.
95. Mother and Father are each physically healthy.
96. Mother has been unwilling to communicate and
cooperate with Father regarding parenting matters. Father
indicates his ability and willingness to do so.
97. Father is a fit and proper person to have physical
and legal custody.
98. Dr. Jenuwine (Mother's expert) testified that he
only spoke to Mother in order to coordinate payment of his fees.
Nevertheless, in direct contradiction, Dr. Jenuwine later testified
that he spoke to Mother about Dr. McIntire (the court appointed
custody evaluator) conducting a Rorschach test.
99. Dr. Jenuwine put great stock in the impropriety of
the use of a Rorschach test in the context of Dr. McIntire's
custody evaluation and in his criticism of Dr. McIntire's
conclusions.
100. Dr. McIntire, on rebuttal, testified that no reference
to a Rorschach test is contained in her lengthy report, because no
such test was, in fact, administered.
101. Dr. Jenuwine criticized Dr. McIntire's methodology
in not conducting a joint session with both Mother and Father.
However, both Dr. McIntire and Dr. Krupsaw (Mother's second
expert) testified joint sessions would not be appropriate where
domestic violence is alleged.
102. As the result of not being able to conduct a joint
session with the parents, Dr. McIntire met with them separately.
While Dr. McIntire met with [Father] first, [Mother] had
provided her with a substantial amount of information prior to
that meeting. Dr. McIntire then met with Mother. Dr. McIntire
testified that with regard to any effect of "primacy biasâ€: " ...
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 21 of 43
while I agree with that literature, I'll point out that [Mother] had
the first word in this evaluationâ€.
103. The effects of "primacy†versus "recency†were
presumably considered by Dr. McIntire in reaching her
professional conclusions. She testified as to her familiarity with
the concept and what, if any, affect it had on her outcomes.
Someone had to be interviewed first and someone second. This
process did not substantially undermine the process or the
evaluator's conclusions. Dr. Jenuwine acknowledged that he
could not say with certainty that Dr. McIntire's meeting with
Father first had any impact on her report.
104. The Court weighs the testimony of experts as it does
any other witness. When faced with competing experts, the
Court must decide whether their testimony can be reconciled, if
not, which it will choose to believe or disbelieve. The Court
considers, among other things, the source of the witness's
information, any bias, prejudice, or interest, as well as their
manner of testifying.
105. As to the experts who testified in this case:
a. Dr. McIntire was appointed by the court to conduct
an independent custody evaluation.
b. Drs. Jenuwine and Krupsaw were retained and paid
by Mother.
c. Dr. McIntire personally interviewed all interested
parties and conducted relevant testing.
d. Neither Dr. Jenuwine, nor Dr. Krupsaw met with
any of the interested parties in connection with this matter.
e. Dr. McIntire testified in a straightforward
professional manner. On being recalled, she effectively
refuted any and all criticisms and misrepresentations of her
work.
f. Dr. Krupsaw, in the end, did not substantially refute
Dr. McIntire's findings. Among other things, he
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 22 of 43
acknowledged Dr. McIntire's work to be consistent with
current basic professional practice guidelines and standards.
g. Dr. Krupsaw also testified that he himself did not
follow the practice of conducting joint sessions with the
parties when conducting custody evaluation. He preferred a
"leapfrog†kind of style. This being one of the methodologies
criticized by Mother's other expert, Dr. Jenuwine because of
the "primacy'' effect.
h. Dr. Jenuwine testified in a manner[] which the
Court found to be evasive, condescending, and unconvincing.
106. The award of attorney fees to Father is reasonable,
given the nature of the litigation, the conduct of the parties,
Mother's unreasonable attempts to limit Father's parenting time,
the shear [sic] volume of the pleadings in the matter, and the
number and length of the hearings to date. The $9,000.00
awarded represents less than 1/8 of the amount paid by Mother
to only one of her four attorneys, which strikes the Court as a fair
measure of reasonableness.
107. Mother's 2019 tax return reflects her family gross
income to be $122,860.00. While the Court does not consider
her spouse's income in determining the award of attorney fees,
the Court does consider that her husband supports her and that
Mother is voluntarily unemployed. Petitioner previously
operated her own business, which she later sold. She is capable of
gainful employment. Her financial circumstances simply allow
her not to have to work.
CONCLUSIONS AND JUDGMENT
[....]
The Court has thoroughly reviewed the evidence relating
to allegations of domestic violence between the parties. The
Court considers such evidence, it's [sic] potential impact on
[Child], as well as any effect on the validity of the custody
evaluation performed.
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 23 of 43
The Court has thoroughly reweighed all the evidence in
this matter, including the veracity of the witnesses, in light of all
the facts and circumstances, including the civil judgment entered
in favor of Petitioner/Mother and against Respondent/Father
and his then fiancé[e], subsequent to this Court's original custody
modification order.
The Court has thoroughly reweighed the methodologies,
conclusions, and opinions of the expert witnesses considering the
behavior of all the parties in this matter and specifically those of
the Father and Girlfriend in the independent lawsuit and
judgment.
The Court does find the independent finder of fact's
Judgment in [Cause No. CT-122] informative as to the matters
before this Court.
The Court does not believe that the jury's conclusion in
that independent matter mandates a particular result in this case.
Rather, it is a factor to be considered, in light of all the evidence.
Mother asks the Court to take judicial notice of other
matters, including attachments to subsequent pleadings, emails,
and her therapy records for treatment subsequent to this Court's
child custody modification order. Those matters were submitted
to the Court outside of any hearing. They have not been
subjected to cross examination by the opposing party. The
opposing party is entitled to be heard prior to the trial court
taking judicial notice of any fact. Ind. Evid Rule 201 (e).
Moreover, the Indiana Court of Appeals has specifically directed
that this court reconsider the evidence in this matter and that
''No new evidence shall be introduced at the hearing, only
argument regarding the current evidence before the trial court for
reconsideration in accordance with the analysis in this Court's
opinion.†It would be fundamentally unfair to consider only
subsequent evidence or judicially noticed facts favorable to one
party without the opposing party being allowed the same
opportunity or at least the occasion for cross examination.
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 24 of 43
Dr. McIntire relied extensively on her own interviews with
the relevant parties, her personal observations, and standardized
psychological testing performed, as well as medical and mental
health records received from previous providers. Her decision
not to consider "numerous filings, work product/documents and
depositions†provided directly by one parties' [sic] attorney
appears consistent with her function, which was to provide an
independent unbiased evaluation.
While the Court gives due consideration to the testimony
of each of the expert witnesses, as it does with all witnesses, the
Court's determination in this matter reflects the Court's
independent determination, based upon all the evidence.
The Court gives significant weight to the testimony of
[CASA Heap].
The Court concludes there has [been] substantial and
continuing change in circumstance warranting a modification of
the current custody order including, but not limited to, the
following:
1. Mother's ongoing mental health issues and instability,
2. Mother's refusal to address the same,
3. The impact of Mother's unaddressed mental health issues
on [Child],
4. Mother's fear inducing behavior toward [Child],
5. Mother's alienating behaviors toward Father,
6. Mother's pattern of conduct frustrating Father's parenting
time,
7. The effect of deprivation of quality parenting time with
both parents on [Child],
8. Father is more likely to address [Child]'s need for
treatment of his speech impediment, as well as his
mental/emotion health,
9. Father will facilitate a positive relationship with Mother.
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 25 of 43
Modification of custody and parenting time are in the best
interest of [Child].
The Court specifically notes that this modification of
custody and parenting time is not intended to be punitive in
nature, or as a sanction, rather it is genuinely in [Child]'s best
interest.
Father is hereby granted sole legal and primary physical
custody of [Child], effective immediately.
Mother is hereby awarded parenting time according to the
age-appropriate Indiana Parenting Time Guidelines (as
amended).
Transportation of [Child] shall continue to be provided by
a responsible third-party for Mother.
Mother is not to be present during any parenting time
exchanges or during the transportation period.
The parties shall sign up for Our Family Wizard within ten
(10) days from the date of this Order. The parties shall use this
platform for all communication except emergency
communication.
Parenting Time exchanges shall continue to take place at
the TA Travel Center at I-70 and S.R. 39.
The parties shall cease any and all communication
regarding court proceedings and this matter with [Child]. The
parties shall not allow any third party to discuss these matters
with [Child].
The parties shall encourage [Child] to have a positive
relationship with both parents and their household members.
[....]
Father's request for attorney fees is granted. Mother shall
pay reasonable attorney fees in the amount of $9,000.00 to
Attorney Heather George Myers within sixty (60) days from the
date of this Order.
Mother's request for attorney fees and expenses denied.
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 26 of 43
Order pp. 3–22
[7] On October 25, 2021, Mother filed her notice of appeal and filed an emergency
motion to stay the trial court's order pending appeal the next day, which we
granted the day after that. We denied Father's motion to reconsider the stay on
November 24, 2021. Meanwhile, on October 4, 2021, Father had petitioned for
transfer in Day-Ping I, which petition the Indiana Supreme Court denied on
January 11, 2022. See Day-Ping v. Ramey, 180 N.E.3d 934 (table).
Discussion and Decision
I. Sole Legal and Primary Physical Custody
[8] Mother contends that the trial court abused its discretion in awarding Father
sole legal and primary physical custody of Child. Indiana Code section 31-17-
2-8 provides as follows:
The court shall determine custody and enter a custody order in
accordance with the best interests of the child. In determining
the best interests of the child, there is no presumption favoring
either parent. The court shall consider all relevant factors,
including the following:
(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
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 27 of 43
(C) any other person who may significantly affect the
child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(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, and if the evidence is sufficient, the court shall
consider the factors described in section 8.5(b) of this chapter.
(9) A designation in a power of attorney of:
(A) the child's parent; or
(B) a person found to be a de facto custodian of the child.
[9] In cases where a modification of custody is sought, the following also applies:
(a) The 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 section 8 [...] of this
chapter.
(b) In making its determination, the court shall consider the
factors listed under section 8 of this chapter.
(c) The court shall 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 by section 8 [...] of this chapter.
Ind. Code § 31-17-2-21.
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 28 of 43
[10] "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.†In re Marriage of Sutton, 16 N.E.3d 481, 485 (Ind. Ct. App.
2014). While the trial court must consider all the factors listed in Ind. Code
section 31-17-2-8, it only has to find one substantial change in the factors to
warrant a modification of custody. Kanach v. Rogers, 742 N.E.2d 987, 989 (Ind.
Ct. App. 2001). In general, a custody modification should not be used to
punish a parent's noncompliance with a custody order. Montgomery v.
Montgomery, 59 N.E.3d 343, 350 (Ind. Ct. App. 2016), trans. denied. "However,
'[i]f one parent can demonstrate that the other has committed misconduct so
egregious that it places a child's mental and physical welfare at stake, the trial
court may modify the custody order.'†Id. (quoting Maddux v. Maddux, 40
N.E.3d 971, 979 (Ind. Ct. App. 2015), trans. denied).
[11] Finally,
[a] child custody determination falls within the sound discretion
of the trial court, and its determination will not be disturbed on
appeal absent a showing of abuse of discretion. In Re
Guardianship of R.B., 619 N.E.2d 952, 955 (Ind. Ct. App. 1993).
We are reluctant to reverse a trial court's determination
concerning child custody unless the determination is clearly
erroneous and contrary to the logic and effect of the evidence. Id.
We do not reweigh evidence nor reassess witness credibility, and
we consider only the evidence which supports the trial court's
decision. Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App.
1996).
Spencer v. Spencer, 684 N.E.2d 500, 501 (Ind. Ct. App. 1997). "[A]ppellate
courts are in a poor position to look at a cold transcript of the record and
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 29 of 43
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.†B.L. v. J.S., 59 N.E.3d
253, 259 (Ind. App. 2016) (citations and internal quotations omitted), trans.
denied.
A. Substantial and Continuing Change in Circumstances
[12] Mother contends that the trial court erred in concluding that there had been a
substantial and continuing change in circumstance such that a change in
custody was warranted. Mother challenges the trial court's conclusions
regarding her interference with Father's parenting time, her fear-inducing and
alienating behaviors, her mental-health, and likely future behavior of the
parents with regard to Child.
1. Parenting Time
[13] While Mother does not claim that she has no history of impeding Father's
exercise of parenting time, she argues that the trial court erred in considering it
on the basis that whatever issues may have existed have been resolved. The
evidence Mother uses to support this argument is that Father has had regular
visitation with Child since August of 2020, or since the trial court found her in
willful contempt for denying Father visitation and ordered her incarcerated if
she continued to do so. We have little hesitation in rejecting this argument. It
is worth remembering that (1) prior to the trial court's contempt finding, Father
had not had any visitation with Child for approximately nine months due to
Mother's "pattern of behavior clearly intended to frustrate†the trial court's
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 30 of 43
parenting-time order and (2) the trial court had to threaten Mother with thirty
days of incarceration before visitation resumed. Order p. 4. Under the
circumstances, we cannot say that the trial court's reliance on Mother's pattern
of obstructive behavior as a factor justifying a change in custody is clearly
erroneous, even if she has been temporarily deterred by the threat of
incarceration.
2. Fear-Inducing and Alienating Behaviors
[14] Mother argues that the trial court erred in relying on evidence of her fearinducing and alienating behaviors. While Mother does not deny such behavior,
she argues that, even if it did occur, it should be disregarded because it has not
succeeded in actually causing Child to fear and hate Father. To support this
argument, Mother cites to Dr. McIntire's observation that Child does not
demonstrate any fear of Father, CASA Heap's observation that Child exhibits
no fear of Father or Father's family, and Father's testimony that he generally
has a good relationship with Child and that Child shows no signs of fearing
him. There is, however, also evidence of Child's frequent outbursts over the
years when leaving Mother for visitation with Father, which Mother argues
have been caused by separation anxiety.
[15] While it is not disputed that transfers from Mother to Father have greatly
distressed Child—and seems reasonable to cite separation anxiety as the
cause—it certainly does not follow that none of this has anything to do with
Mother's behavior. Dr. McIntire's report includes the following evidence
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 31 of 43
regarding Mother's alienating behavior, which we believe is worth relating at
length:
[T]he interaction of [Mother's] persecutory ideation and
enmeshment with [Child] have resulted in a concerning pattern
of behaviors which have alienated [Child] from his father and
caused intermittent acute fear of [Father]. [Child] demonstrated
vast knowledge of Mother's allegations, dating back to prior to
his birth and his infancy which—whether true or not—he never
should have known. He has knowledge of the most recent court
hearing, including that Mother was sentenced to jail, that this
"surprised†Mother, and that the Judge "doesn't listen†to
[Mother and her husband]. He repeats claims that he is allergic
to Father's pets and that [Father] "won't let†him play soccer,
"tricks†him with toys, "is mean,†cut his hair and that he had a
cut on his eye and "couldn't talk when my mom got me†(all of
which Mother alleges occurred following [the] 2017 removal),
and that "[Father and Girlfriend] tried to hit my mom on
purpose†in a vehicle. He freely reported that his mother told
him many of these things, but also that some was revealed "in
email to my mom.†Whether [Child] actually overhead all of
these statements over the years (as Mother claimed) or was told
directly by his mother is immaterial, as she is fully responsible to
maintain an appropriate boundary with her child, rather than tell
and/or expose him to information which induces fear, reduces
his ability to feel safe, and undermines his ability to trust others,
including but not limited to his father.
Additionally, there is evidence that she made fear-inducing
statements to him about this evaluator before he had to spend
time with her in Mother's absence. These included that she is
"friends with the Judge†who is a "bad Judge†and doesn't
"listen to†the Pings, and that she is "bad Linda†who will
"trick†him. This set [Child] up for at least discomfort, if not a
traumatic experience.
Finally, [Mother] has engaged in a series of actions which
convince [Child] he is not safe without her. One example is the
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 32 of 43
GPS/recording watch which [Child] was to wear on parenting
time. Independent of Father's allegation that [Child] was told by
[Mother] that it was to keep him safe and he was not to take it
off, Mother clearly sent it, continued insistence upon it after
being asked not to, and created a situation in which [Child] felt
fear and anger when it was taken, such that he subsequently tried
to hide the watch. It is likely that her insistence on the watch, as
well as reporting to this evaluator that one of her primary issues
with [Father] is his alleged "secrecy of where he's taking him,â€
emanate from a real fear that [Father] will steal [Child], despite
lack of evidence to support this notion. This also accounts for
the Fall Break fiasco which preceded a sharp increase in [Child]'s
distress and the end of visits in fall 2019. Sadly Mother's
paranoid actions have shaped an identical fear in [Child].
Sending him recently with a whistle recapitulates this lesson.
There are multiple reports of [Mother] following [Child] in a
vehicle after he has been exchanged to Father or his
representative, and evidence that that this happened at least
twice: once when she found them on a visit in a friend's
apartment and once when, per her own admission, she and her
mother-in-law followed [Girlfriend] to her place of work, where
her mother-in-law got out of her car, approached [Girlfriend's
car], and start[ed] a verbal altercation. Again, these are
behaviors that not only upset [Child], but triangulated him into
adult conflicts and reinforced a perception that he is in danger.
Finally, [Mother]'s efforts "to have long extended good-byesâ€
(per Adult & Child visit logs) were addressed with her in 2017
because this emotional clinging increases [Child]'s distress about
separation. Yet even in late 2019 (after Fall Break) Mother had
[Child] in her lap in the front seat at exchanges, was cuddling
him, and made no effort to remove him from the car or her lap.
Overall, there is a pattern of alienating behaviors which not only
undermine [Child]'s relationship with [Father] but cause him
fear, distress, and increased dependence on and continued
enmeshment with his mother. While her goal is likely to reduce
[Child]'s immediate distress and is rooted in fears she truly
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 33 of 43
experiences, over time these behaviors have an opposite, greater,
and detrimental effect. [Mother] is increasing the likelihood of
greater, more enduring stress for [Child], as well as adjustment
issues and impairment as he matures.
Ex. Vol. VII pp. 242–43. To the extent that Child suffers from separation
anxiety, the trial court was free to infer from the above that Mother's actions
are primarily—if not entirely—responsible. The trial court did not err in citing
Mother's fear-inducing and alienating behavior as supporting a change in
custody.
3. Mother's Mental Health
[16] Mother challenges the trial court's identification of her refusal to address
ongoing mental-health issues as a circumstance supporting a change of custody.
Mother claims that she is doing all that is necessary to address whatever
mental-health issues she might have, which she also seems to characterize as
overblown. This challenge is not supported by the record. As far back as
September of 2017, clinical psychologist Dr. Janine Miller found that Mother
"may present with a paranoid orientation.†Appellant's App. Vol. II p. 8. As
for Dr. McIntire, she opined in her custody evaluation that
[Mother] has a lengthy psychiatric history including multiple
diagnoses (ADHD, Depression, Panic Disorder, Generalized
Anxiety Disorder) and medicinal management of symptoms, but
she has refused referrals to therapy. This evaluation and the 2017
report additionally reveal significant levels of chronic paranoia
which, while likely characterologically based, may become more
severe under acute stress. Finally, she demonstrates themes of
somatization including but not limited to stress-related
nonepileptiform seizures.
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 34 of 43
No professional can retroactively determine if the marital
violence Mother reports ever happened, though at least some
aspects of her claims are infeasible.
However, there is evidence that her pattern of claiming harm to
herself and [Child] since the divorce are typically exaggerated,
inconsistent, and/or overtly false; they are rooted in her
persecutory ideation and anxiety. While at times she appears to
volitionally lie or maneuver circumstances, there is evidence that
she believes many of the accusations she has made. There is no
evidence across this evaluation that supports her various claims
of abuse of [Child] (sexual and physical abuse, neglect, and
cruelty) by [Father].
Ex. Vol. VII p. 67. Dr. Krupsaw agreed that Mother's symptoms were
consistent with paranoia.
[17] Mother's paranoia is further displayed in her reports to Riley Hospital, the
DCS, CASA Heap, and Dr. McIntire. During the custody evaluation, Mother
made paranoid accusations when she accused Dr. McIntire of "turning up the
thermostat to make her uncomfortable so [Dr. McIntire] could say [Mother]
was flushed.†Tr. Vol. II p. 112. Mother also stated Dr. McIntire hung "a print
in the waiting room to intimidate [Child].†Tr. Vol. II p. 113.
[18] There is also ample evidence that Mother's paranoia has negatively affected
Child. Dr. McIntire found that "Mother's paranoid actions have shaped an
identical fear in [Child].†Ex. Vol. VI p. 243. Mother's mental-health issues
have created an enmeshment between Mother and Child that "creates
discomfort, if not distress, for both of them when they must separate.†Ex. Vol.
VII p. 25. Further, Mother's anxiety "bleeds off onto†Child and creates
distress in Child. Tr. Vol. II pp. 120, 211. CASA Heap also expressed concerns
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 35 of 43
about Mother's mental health. In CASA Heap's opinion, Child's situation has
gotten worse since she completed her report in April of 2018. While Child is
bonded to Mother and her family, CASA Heap opined that the harm caused to
Child by Mother's unaddressed mental-health issues outweighs the bond
between them.
[19] Moreover, Mother has repeatedly failed to act upon suggestions from her
providers to seek counseling. Dr. McIntire opined that "[u]nfortunately, people
who are paranoid are usually not willing to go to therapy because they don't
trust anybody. So there is a double bind with trying to get them what they
need.†Tr. Vol. II pp. 113–14. At the time of the evidentiary hearing in
January of 2021, Mother had not engaged in the type of counseling
recommended by Dr. McIntire, specifically, "therapy with a doctoral-level
clinician who is informed that the purpose of therapy is to address paranoia,
separation difficulties, and parental alienation, rather than focus on alleged
victimization.†Ex. Vol. VII p. 69. Dr. McIntire recommended that the
therapist receive and review a copy of the custody evaluation. Dr. McIntire
concluded that "changing custody, without reducing the psychopathology that
has driven this case, will not eliminate the ongoing psychological harm to
[Child.]†Ex. Vol. VII p. 69.
[20] Mother testified that she began seeing Joseph Kowalow to "continue refining
myself and to continue seeking peace and promoting peace in a co-parenting
relationship and outside[.]†Tr. Vol. III p. 151. Mother, however, had had
only one session with Dr. Kowalow as of the date of the hearing, and it had
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 36 of 43
been the day before. Moreover, Mother had not provided Dr. Kowalow with a
copy of Dr. McIntire's report as recommended by Dr. McIntire.
[21] While Mother sought to discredit Dr. McIntire's custody evaluation through
the testimony of Drs. Krupsaw and Jenuwine, it is well-settled that "the factfinder is not required to accept the opinions of experts regarding custody.â€
Maddux, 40 N.E.3d at 980 (citing Clark v. Madden, 725 N.E.2d 100, 109 (Ind.
Ct. App. 2000)). In any event, Dr. Krupsaw found Dr. McIntire's custody
evaluation "'to be consistent with current basic professional practices
guidelines/standards[.]'†Tr. Vol. III p. 106. As for Dr. Jenuwine, while he
raised questions regarding Dr. McIntire's custody evaluation and her methods,
he had neither personally examined or evaluated any of the parties nor
performed a custody evaluation himself.
[22] Here, the trial court found that Dr. Jenuwine testified "in a manner[] which the
Court found to be evasive, condescending, and unconvincing.†Order p. 16.
Additionally, the trial court found that "Dr. McIntire [had] testified in a
straightforward professional manner†and that she had "effectively refuted any
and all criticisms and misrepresentations of her work.†Order p. 15. As for Dr.
Krupsaw's testimony, the trial court found that "in the end, [it] did not
substantially refute Dr. McIntire's findings.†Order p. 15. Consequently, the
record supports the trial court's conclusion that Mother's ongoing and
apparently worsening mental-health issues and instability, Mother's refusal to
address these issues, and the effect of Mother's unaddressed mental-health
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issues on Child are all substantial changes that warrant a modification of
custody to Father.
4. The Trial Court's Conclusions Regarding Likely Future Behavior
[23] Finally, Mother challenges the trial court's conclusions that Father is more
likely to address Child's health issues and would facilitate a positive
relationship with Mother. Although these are, of course, predictions regarding
future behavior, Mother argues, without citation to authority, that they cannot
be used to justify a custody change. It seems to us, however, that predictions of
future behavior will always factor into such decisions. The whole point, after
all, is to fashion a custody arrangement that will benefit Child moving forward.
With this in mind, we conclude that the trial court's findings in this regard have
ample support in the record.
[24] As for addressing Child's medical issues, most notably a speech impediment,
there is ample evidence to support a conclusion that this is an issue that Mother
has not properly acknowledged and that Father would do more to address. Dr.
McIntire's report indicates that while Child's "speech and language are
obviously impaired [and] a barrier for him and a source of frustration[,]â€
Mother denies that there is a problem and "has never acknowledged or treated
this growing handicap.†Ex. Vol. VII. p. 242. In contrast, Child's
developmental delay "is an expressed concern of [Father,]†Ex. Vol. VII p. 23,
who at one point had set up an evaluation for Child. As it happened, Mother
never took Child to the evaluation, afterwards telling Child's pediatrician that
he had been evaluated and had been found not to need speech therapy. The
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trial court did not err in concluding that a change in custody would likely result
in Child receiving the medical care he needs for his speech impediment and
associated developmental delay.
[25] As for whether Father would facilitate a positive relationship with Mother,
there is ample evidence to support that conclusion as well. Mother's history of
alienating behavior has already been discussed. In contrast, Dr. McIntire
testified that throughout her entire evaluation she had not found any evidence
that Father had ever told Child inappropriate things about the litigation
between Father and Mother and that she had not witnessed any behaviors from
Father that would lead her to believe that Father would not encourage a
relationship between Child and Mother. CASA Heap described Father as a
"kind, stable parent†who is loving toward Child. Tr. Vol. II. p. 186.
[26] We have explicitly endorsed the principle that "[p]ast behavior is a valid
predictor for future conduct†in at least one custody case, Arms v. Arms, 803
N.E.2d 1201, 1210 (Ind. Ct. App. 2004), and we do so here. With this in mind,
we cannot say that the trial court erred in taking Mother's and Father's past
behavior into account here. We conclude that the trial court did not err in
making a finding of substantial and continuing change in circumstances
warranting a change in custody. In the end, much of Mother's argument on
Court of Appeals of Indiana | Memorandum Decision 21A-DR-2353 | April 27, 2022 Page 39 of 43
this point amounts to nothing more than an invitation to reweigh the evidence,
which we will not do. See Spencer, 684 N.E.2d at 501.
1
B. The Effect of Cause No. CT-122 on This Litigation
[27] Mother argues that awarding Father custody of Child would be to allow him to
benefit from his own wrongdoing, specifically the actions that led to the civil
judgment in favor of Mother against Father and Girlfriend in Cause No. CT122. "Actions for and incidental to divorce are essentially equitable in nature.â€
Pierce v. Pierce, 620 N.E.2d 726, 731 n.3 (Ind. Ct. App. 1993). "Equity dictates
that a right cannot arise to anyone out of his or her wrong.†Id. Accordingly,
"[a] parent may not sow seeds of discord and reap improved custody rights.â€
Id. at 731. "When a parent requests a modification of custody, the substantial
change in circumstances cannot be the result of that parent's misconduct with
regard to custody.†Meade v. Levett, 671 N.E.2d 1172, 1177 (Ind. Ct. App.
1996).
[28] The trial court drew the following conclusions regarding the litigation in Cause
No. CT-122:
1
Mother also argues that the trial court erred in concluding that a change in custody was in Child's best
interests. We see nothing in this argument to distinguish it from her argument regarding the trial court's
finding that there was a substantial and continuing change warranting a change in custody, as it consists
entirely of Mother's challenges to the evidence she challenged in this section and further invitations to
reweigh evidence in her favor. Put another way, the same evidence that supports that trial court's conclusion
that a change in custody is warranted supports a conclusion that a change in custody is in Child's best
interests. Because this ground has been adequately covered, we do not address it again in a separate section
of this memorandum decision.
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The Court does find the independent finder of fact's
Judgment in [Cause No. CT-122] informative as to the matters
before this Court.
The Court does not believe that the jury's conclusion in
that independent matter mandates a particular result in this case.
Rather, it is a factor to be considered, in light of all the evidence.
Order p. 18.
[29] We agree with the trial court's observation that the judgment in Cause No. CT122 does not require a particular result in this case. At most, the result of that
case establishes nothing more than that Father and Girlfriend knowingly made
one false report against Mother.2
While we certainly do not condone such
behavior, the trial court correctly viewed the false report as a factor to be
considered in light of the entirety of the evidence before it. That evidence
paints a picture of an extremely contentious custody battle in which,
unfortunately, both sides have leveled what the trial court found to be false
allegations of abuse against the other, among many other things. In light of
this, and the entirety of the other evidence (which has already been discussed in
detail), we cannot say that the trial court abused its discretion in concluding
that Father and Girlfriend's one false report did not require it to deny Father's
petition for a change of custody.
2
The record contains evidence of false allegations of abuse by Mother in February of 2017 that resulted in
the temporary suspension of Father's parenting time.
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II. Attorney's Fees
[30] A trial court may award reasonable attorney fees in a dissolution matter
pursuant to Indiana Code § 31-17-7-1. "When making such an award, the trial
court must consider the resources of the parties, their economic condition, the
ability of the parties to engage in gainful employment and to earn adequate
income and other factors that bear on the reasonableness of the award.†Hanson
v. Spolnik, 685 N.E.2d 71, 80 (Ind. Ct. App. 1997) (citing In re the Marriage of
Lewis, 638 N.E.2d 859, 861 (Ind. Ct. App. 1994)), trans. denied. "Additionally,
misconduct that directly results in additional litigation expenses may be
properly taken into account in the trial court's decision to award attorney's
fees.†Id. Reversal of an award of attorney fees is proper only where the trial
court's award is clearly against the logic and effect of the facts and
circumstances before the court. In re Marriage of Julie C., 924 N.E.2d 1249, 1261
(Ind. Ct. App. 2010) (citing Claypool v. Claypool, 712 N.E.2d 1104, 1110 (Ind.
App. 1999), trans. denied).
[31] The trial court made the following findings regarding the award of attorney's
fees to Father:
106. the award of attorney fees to Father is reasonable,
given the nature of the litigation, the conduct of the parties,
Mother's unreasonable attempts to limit Father's parenting time,
the shear [sic] volume of the pleadings in the matter, and the
number and length of the hearings to date. The $9,000.00
awarded represents less than 1/8 of the amount paid by Mother
to only one of her four attorneys, which strikes the Court as a fair
measure of reasonableness.
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107. Mother's 2019 tax return reflects her family gross
income to be $122,860.00. While the Court does not consider
her spouse's income in determining the award of attorney fees,
the Court does consider that her husband supports her and that
Mother is voluntarily unemployed. Petitioner previously
operated her own business, which she later sold. She is capable
of gainful employment. Her financial circumstances simply
allow her not to have to work.
Appellant's App. Vol. II p. 69.
[32] We cannot say that the trial court abused its discretion in awarding Father
$9000.00 in attorney's fees. The trial court was entitled to conclude that
Father's decision to further litigate by moving for a change of custody was
essentially forced upon him by Mother's interference with his parenting time,
which had not occurred for approximately nine months when Father filed.
Under the circumstances, it is reasonable to infer that Father moved for a
change of custody because he feared he might not see Child again for quite
some time—if ever—if he did not. Moreover, the evidence regarding Mother's
resources indicate that she is well able to pay the award, with her husband
supporting her and earning over $120,000.00 per year and the large amounts
she has spent on her own representation. Consequently, we conclude that the
trial court's award of $9000.00 in attorney's fees was not unreasonable given
Mother's available resources, the income of her husband, Mother's actions
which increased the cost of litigation, and Mother's ability to be gainfully
employed.