Paternity: Christine Ling Chen v. Robert Lee Brewer

Indianapolis, IN - Family law paternity lawyer represented Appellee custody issue.

Mother and Father are the parents of Child, who was born out of wedlock on

April 22, 2018. Paternity for Child was established by execution of a paternity

affidavit. Following Child's birth and the establishment of paternity, Parents

cohabitated with Child and did not have any formal custody, parenting time, or

support orders in place.

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[3] On February 13, 2020, Mother was arrested for allegedly committing domestic

violence against Father in the presence of Child. The Department of Child Appellee

Services ("DCS”) became involved with the family and, on February 14, 2020,

executed a safety plan which restricted Mother's access to Child and prohibited

Mother from returning to the family home. On February 28, 2020, Father filed

a petition seeking sole legal and physical custody of Child. Mother has since

requested joint legal and shared physical custody.

[4] On July 10, 2020, Parents entered into a verified agreement for temporary

custody and parenting time ("the Agreement”). Pursuant to the terms of the

Agreement, Mother agreed

to schedule a full psychological evaluation within 14 days of the

date this agreement is signed, and further agree to execute

necessary releases for health and medical records to confirm

proper disclosure of issues that must be addressed and

compliance with recommended treatment, in sufficient time to

obtain such records so that they may be reviewed prior to the

final hearing in this matter. Mother shall promptly advise Father

of the name of the provider conducting her psychological

evaluation so that Father may schedule a separate appointment

with that therapist for purposes of sharing his perspective on

family issues pertaining to Mother, Father and [Child]. Mother

shall ensure that she follows any recommendations for treatment

included in the evaluation report specifically related to each

parents' ability to make decisions in the best interests of [Child].

Mother's course of treatment shall address anger and stress

management and Mother shall satisfactorily address any medical

issues that may be deemed to be contributing to her outbursts and

health issues that could pose risk to [Child]. Father shall provide

Mother a copy of his psychological evaluation completed during

the pending CHINS matter.

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Appellant's App. Vol. II pp. 32–33. Parents further agreed that it was in Child's

best interests "that Father have sole legal custody of [Child] and that Father

remain the primary care giver for [Child] pending final determination of

custody, parenting time and child support.” Appellant's App. Vol. II p. 31.

[5] Following an August 31, 2020 hearing, the trial court ordered Mother to pay

child support in the amount of $90.00 per week and awarded Mother limited

parenting time. The parties thereafter continued to request hearings regarding

parenting time. On November 12, 2020, the trial court indicated that no further

hearings would be held until Mother fully complied with the portion the

Agreement relating to her completion of a psychological examination.

[6] On November 13, 2020, Mother submitted documentation indicating that she

had completed a comprehensive psychological evaluation with Dr. David L.

Lombard, a licensed clinical psychologist, on August 27, 2020. The validity of

this psychological evaluation was disputed throughout the proceedings.

[7] The trial court scheduled a two-day evidentiary hearing for May 4 and 5, 2021.

Mother subsequently requested permission to have Dr. Lombard testify

telephonically or virtually, rather than in person. Father objected to this

request. The trial court ultimately denied Mother's request and ordered that

Dr. Lombard's report would "not be admitted into evidence, unless [he was]

available to be examined and cross examined in person at the hearing.”

Appellant's App. Vol. II p. 82.

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[8] Pursuant to the trial court's prior order, Dr. Lombard's report was excluded

from evidence at the evidentiary hearing after Mother failed to call him to

testify in person. On May 25, 2021, the trial court issued an order in which it

found as follows:

3. The Court has considered all relevant factors and makes its

decision regarding custody, child support and parenting time in

accordance with the best interests of the Child.

****

6. As a part of [the Agreement], Mother was to schedule a

full psychological examination within l4 days of the agreement;

Mother further agreed to "promptly advise Father of the name of

the provider conducting her psychological evaluation so that

Father may schedule a separate appointment with that therapist

for purposes of sharing his perspective on family issues pertaining

to Mother, Father and [Child].”

7. Mother submitted her Notice of Compliance with Court

Order on November l3, 2020[,] alleging that she completed a

comprehensive psychological evaluation on August 27, 2020.

This "comprehensive psychological evaluation” is not considered

a "full psychological examination” as set forth in [the

Agreement]. Therefore, Mother failed to complete a full

psychological evaluation as agreed upon by the parties.

8. As a part of [the Agreement], Mother was to "ensure that

she follows any recommendations for treatment included in the

[psychological] evaluation.” Since Mother failed to complete a

full psychological evaluation as agreed upon by the parties,

recommendations for her treatment are unknown.

9. As a part of [the Agreement], "Mother's course of

treatment shall address anger and stress management.” Mother

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engaged in numerous counseling sessions. However, she never

disclosed her arrest for domestic battery and other details that

would be necessary to properly address anger and stress

management. Therefore, Mother failed to complete treatment

that addressed anger control and stress management.

10. The parties are unable to meaningfully communicate on

parenting issues, and joint custody is contrary to the best interests

of the Child.

****

12. It is in the Child's best interest that Father be awarded sole

legal custody of the Child.

****

l4. It is in the Child's best interest that the Court deviate from

Indiana Parenting Time Guidelines for purposes of Mother's

parenting time, because Mother failed to complete a full

psychological evaluation as agreed upon by the parties, since

recommendations for her treatment are unknown, and because

Mother failed to complete treatment to address anger control or

stress management. Mother will have parenting time with the

Child according to the Indiana Parenting Time Guidelines,

except Mother shall not have any overnights, and shall not have

any extended parenting time in accordance with Section

II(D)(2)&(3) of the Indiana Parenting Time Guidelines....

15. Father is not required to provide Mother with the

opportunity for additional parenting time in accordance with

Section I(C)(3) of the Indiana Parenting Time Guidelines.

However, this does not prohibit Father from allowing Mother the

opportunity for additional parenting time.

16. The ultimate goal is for Mother to have parenting time

according to the Indiana Parenting Time Guidelines without the

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deviations in paragraphs 14 and 15 of this Order. In order to

work toward that ultimate goal, Mother will need to submit to

and complete a comprehensive clinical psychiatric or

psychological evaluation and meaningfully engage in any

recommended follow-up treatment. In addition, Mother will

need to complete treatment that addresses anger control and

stress management. It will be necessary for Father to be an active

participant in Mother's psychological evaluation, recommended

follow-up treatment, and anger and stress management

treatment, to the extent that [his participation] ensures the

persons involved in the evaluations and treatment are aware of

his perspective on family issues pertaining to Mother, Father and

the child. Both Father and Mother shall cooperate in this

process, and shall follow any recommendations from the

professionals involved in Mother's treatment plan for when and

how to transition from her current parenting time to parenting

time according to the Indiana Parenting Time Guidelines

without the deviations in paragraphs l4 and 15 of this Order.

Appellant's App. Vol. II pp. 16–18. The trial court also ordered Mother to pay

child support in the amount of $124.81 per week.

Discussion and Decision

[9] Mother raises four issues on appeal, which we rephrase as whether the trial

court (I) erred in relying on evidence that was excluded from the record, (II)

abused its discretion in granting sole legal custody to Father, (III) abused its

discretion by restricting her parenting time without making any findings relating

to physical endangerment or emotional impairment to Child, and (IV) erred in

including insurance premiums and childcare expenses in its calculation of child

support.

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I. Alleged Reliance on Excluded Evidence

[10] Mother contends that the trial court erroneously relied on excluded evidence,

asserting that

[t]he trial court's determination regarding child custody and

parenting time was based on the court's consideration, and

analysis, of the validity of the psychological assessment report

authored by Dr. Lombard after his evaluation of Mother. The

trial court's reliance on evidence that was not introduced or

admitted at the evidentiary hearing is clearly erroneous and

constitutes an abuse of discretion.

Appellant's Br. p. 20. "Clear error occurs when our review of the evidence

most favorable to the judgment leaves us firmly convinced that a mistake has

been made.” Maddux v. Maddux, 40 N.E.3d 971, 974–75 (Ind. Ct. App. 2015).

For his part, Father contends that Mother's assertion "is a gross

mischaracterization of the proceedings and the trial court's findings.”

Appellee's Br. p. 12.

[11] In raising this contention, Mother points to three of the trial court's findings,

specifically:

6. As a part of [the Agreement], Mother was to schedule a

full psychological examination within l4 days of the agreement;

Mother further agreed to "promptly advise Father of the name of

the provider conducting her psychological evaluation so that

Father may schedule a separate appointment with that therapist

for purposes of sharing his perspective on family issues pertaining

to Mother, Father and [Child].”

7. Mother submitted her Notice of Compliance with Court

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Order on November l3, 2020[,] alleging that she completed a

comprehensive psychological evaluation on August 27, 2020.

This "comprehensive psychological evaluation” is not considered

a "full psychological examination” as set forth in [the

Agreement]. Therefore, Mother failed to complete a full

psychological evaluation as agreed upon by the parties.

8. As a part of [the Agreement], Mother was to "ensure that

she follows any recommendations for treatment included in the

[psychological] evaluation.” Since Mother failed to complete a

full psychological evaluation as agreed upon by the parties,

recommendations for her treatment are unknown.

Appellant's App. Vol. II pp. 16–17.

[12] In each of the challenged findings, the trial court's language clearly indicates

that it was referencing the Agreement, which was properly before the court for

consideration. Findings #6 and #8 accurately reflect the language of the

Agreement, while Finding #7 accurately reflects the procedural history of the

case, i.e., that Mother filed a notice of completion of an examination. Father

argued, both prior to and during the evidentiary hearing, that the examination

to which Mother claimed to have submitted did not satisfy the requirements set

forth in the Agreement. The question of whether the examination satisfied the

requirements of the Agreement was therefore squarely before the trial court and

the trial court could, without considering any statements contained in Dr.

Lombard's excluded report, look to the Agreement and determine that the

examination did not satisfy its requirements. In addition, nothing in the record

indicates that Mother completed a different examination that complied with the

requirements of the Agreement or provided any information about treatment

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that was recommended by any such examination. The trial court, therefore, did

not err in finding that Mother had failed to complete an evaluation as agreed

upon by the parties or by stating that recommendations for potential necessary

treatment are unknown.

[13] The trial court's findings were based upon evidence squarely before it for

consideration. Nothing in any of the challenged findings even suggests that the

trial court considered excluded evidence. As such, we conclude that the

challenged findings are supported by the record and are not clearly erroneous.

II. Custody

[14] "In an initial custody determination, both parents are presumed equally entitled

to custody, and the '[t]he court shall determine custody and enter a custody

order in accordance with the best interest of the child.'” Purnell v. Purnell, 131

N.E.3d 622, 626 (Ind. Ct. App. 2019) (quoting Ind. Code § 31-17-2-8). "There

is no presumption favoring either parent.” Id. (citing Ind. Code § 31-17-2-8). In

determining the child's best interest, the trial court must consider all relevant

factors, including specifically 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 siblings; and

(C) Any other person who may significantly affect

the child's best interests.

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(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.

Ind. Code § 31-17-2-8. The trial court's decisions on child custody "are

reviewed only for an abuse of discretion.” Sabo v. Sabo, 858 N.E.2d 1064, 1068

(Ind. Ct. App. 2006).

[15] There is a well-established preference in Indiana "'for granting latitude and

deference to our trial judges in family law matters.'” Steele-Giri v. Steele, 51

N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of Richardson, 622 N.E.2d

178, 178 (Ind. 1993)). In this regard, the Indiana Supreme Court has explained

that:

[a]ppellate deference to the determinations of our trial court

judges, especially in domestic relations matters, is warranted

because of their unique, direct interactions with the parties faceto-face, often over an extended period of time. Thus enabled to

assess credibility and character through both factual testimony

and intuitive discernment, our trial judges are in a superior

position to ascertain information and apply common sense,

particularly in the determination of the best interests of the

involved children.

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Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011). "It is not enough on appeal that

the evidence might support some other conclusion; rather, the evidence must

positively require the result sought by the appellant.” Purnell, 131 N.E.3d at

627 (citing D.C. v. J.A.C., 977 N.E.2d 951, 957 (Ind. 2012)). "Accordingly, we

will not substitute our own judgment if any evidence or legitimate inferences

support the trial court's judgment.” Id.

[16] In finding that it was in Child's best interests for Father to be awarded sole legal

custody, the trial court specifically noted that it considered "all relevant factors

and makes it decision ... in accordance with the best interests of the Child.”

Appellant's App. Vol. II p. 16. Mother contends that "the trial court's award of

sole legal custody to Father is against the logic and effects of the facts and

circumstances” of the case. Appellant's Br. p. 20 (capitalization omitted). We

cannot agree.

[17] Mother argues that the trial court "improperly considered [her] psychological

evaluation in its custody determination and therefore erred in its decision

regarding custody of the parties' minor Child.” Appellant's Br. p. 21. On the

contrary, Mother's mental health was clearly an appropriate factor for the trial

court to consider pursuant to Indiana Code section 31-17-2-8(6), and given

given that the record contained allegations that Mother had previously

threatened to harm both Father and Child, it was not inappropriate for the trial

court to consider the fact that Mother had failed to complete the agreed upon

mental health evaluation and recommended treatment in considering Child's

best interests.

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[18] While the trial court's findings did not suggest that Mother had ever physically

harmed Child, the findings did note that Mother had been arrested for allegedly

committing domestic violence against Father while in the presence of Child.

This is an appropriate factor for the trial court to consider pursuant to Indiana

Code section 31-17-2-8(7). We also believe that one may reasonably infer that

witnessing domestic violence between Mother and Father likely had a negative

effect on Child. DCS Case Manager Amanda Myers, who worked with Father

in creating Child's safety plan, testified as such, stating that "the evidence

strongly supports that it is not healthy and it is not in the best interest of the

child,” to see a parent being physically aggressive toward the other parent. Tr.

Vol. II p. 90.

[19] Further, since the episode of domestic violence by Mother, Father had been

Child's sole caregiver. The record contains evidence suggesting that Child is

comfortable with Father and is well-adjusted to his care. The record does not

demonstrate the same for Mother, instead indicating that Child was hesitant

around and did not want to be touched by Mother. Mother had also indicated

to Father on multiple occasions that she would leave, leaving Child with

Father. It is unclear where Mother would go or what she would do for

employment if she left given that in discussing her prior employment prior to

her relationship with Father, Mother alluded to working in the illicit massage

industry and working undercover for police "just for prostitution and also drugs

and also for fake marriage, just that type” of thing, reporting to "Eddy, from

Washington.” Tr. Vol. III p. 232.

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[20] The record also supports the trial court's findings that the parties were unable to

meaningfully communicate with each other regarding issues relating to Child,

with Mother admitting that she had previously refused to communicate with

Father because "he wants to have the full custody.” Tr. Vol. IV p. 6. Mother

had also previously sought unnecessary medical care for Child, unnecessarily

taking Child to the hospital on at least three occasions.

[21] Despite Mother's claim, we cannot say that the trial court's determination

"amounts to punishing Mother for non-compliance with the custody

agreement.” Appellant's Br. p. 23. The trial court's findings show that the trial

court considered the relevant considerations regarding Child's best interests in

awarding sole legal custody to Father. The trial court, therefore, did not abuse

its discretion in this regard.

III. Parenting Time

[22] In making decisions regarding the amount of parenting time to award a

noncustodial parent, trial courts "give foremost consideration to the best

interests of the child.” Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App.

1998), trans. denied. When reviewing the trial court's resolution of a visitation

issue, we reverse only when the trial court abused its discretion. Id. "If the

record reveals a rational basis supporting the trial court's determination, no

abuse of discretion occurred.” Id. Furthermore, because judgments in custody

matters "typically turn on essentially factual determinations,” factual

determinations "will be set aside only when they are clearly erroneous.”

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Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). "We will not substitute

our own judgment if any evidence or legitimate inferences support the trial

court's judgment.” Id. at 1257–58. Likewise, "[w]e will not reweigh the

evidence or reassess the credibility of witnesses.” Marlow, 702 N.E.2d at 735.

[23] Again, with regard to parenting time, the trial court found as follows:

l4. It is in the Child's best interest that the Court deviate from

Indiana Parenting Time Guidelines for purposes of Mother's

parenting time, because Mother failed to complete a full

psychological evaluation as agreed upon by the parties, since

recommendations for her treatment are unknown, and because

Mother failed to complete treatment to address anger control or

stress management. Mother will have parenting time with the

Child according to the Indiana Parenting Time Guidelines,

except Mother shall not have any overnights, and shall not have

any extended parenting time in accordance with Section

II(D)(2)&(3) of the Indiana Parenting Time Guidelines....

15. Father is not required to provide Mother with the

opportunity for additional parenting time in accordance with

Section I(C)(3) of the Indiana Parenting Time Guidelines.

However, this does not prohibit Father from allowing Mother the

opportunity for additional parenting time.

16. The ultimate goal is for Mother to have parenting time

according to the Indiana Parenting Time Guidelines without the

deviations in paragraphs 14 and 15 of this Order. In order to

work toward that ultimate goal, Mother will need to submit to

and complete a comprehensive clinical psychiatric or

psychological evaluation and meaningfully engage in any

recommended follow-up treatment. In addition, Mother will

need to complete treatment that addresses anger control and

stress management. It will be necessary for Father to be an active

participant in Mother's psychological evaluation, recommended

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follow-up treatment, and anger and stress management

treatment, to the extent that [his participation] ensures the

persons involved in the evaluations and treatment are aware of

his perspective on family issues pertaining to Mother, Father and

the child. Both Father and Mother shall cooperate in this

process, and shall follow any recommendations from the

professionals involved in Mother's treatment plan for when and

how to transition from her current parenting time to parenting

time according to the Indiana Parenting Time Guidelines

without the deviations in paragraphs l4 and 15 of this Order.

Appellant's App. Vol. II pp. 17–18.

[24] Indiana Code section 31-14-14-1(a) provides that "[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.” In

challenging the portion of the trial court's order relating to parenting time,

Mother is seemingly arguing that the amount of parenting time she was

awarded is unreasonable. In support of her claim that the trial court

erroneously restricted her parenting time, Mother again asserts that the trial

court relied on excluded evidence. For the reasons stated above, Mother's

claim fails, and we again conclude that the trial court did not rely on excluded

evidence, but rather on evidence properly before the court, i.e., the Agreement.

The trial court's findings make it clear that the goal is to increase Mother's

parenting time with Child once she successfully complies with the Agreement,

including submitting to a full psychological examination in the manner

described in the Agreement and completing any recommended services.

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Mother has complete control over if and when she does so. In the meantime,

for the reasons discussed above relating to Child's best interests, we cannot say

that the trial court abused its discretion in limiting Mother's parenting time with

Child.

IV. Child Support

[25] Child support calculations are made utilizing the income shares

model set forth in the Indiana Child Support Guidelines. See

McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004).

The Guidelines apportion the cost of supporting children

between the parents according to their means, on the premise

that children should receive the same portion of parental income

after a dissolution that they would have received if the family had

remained intact. See id. The trial court is vested with broad

discretion in making child support determinations. Carter v.

Dayhuff, 829 N.E.2d 560, 569 (Ind. Ct. App. 2005). A

calculation of child support under the Guidelines is presumed to

be valid. McGill, 801 N.E.2d at 1251.

We will reverse a trial court's grant or denial of a request for

modification of child support only where the court has abused its

discretion. Carter, 829 N.E.2d at 569–70. An abuse of discretion

occurs when the trial court misinterprets the law or the decision

is clearly against the logic and effect of the facts and

circumstances before the court. Id. We do not reweigh the

evidence or judge the credibility of the witnesses upon review;

rather, we consider only the evidence most favorable to the

judgment and the reasonable inferences to be drawn therefrom.

Id. at 570.

Sandlin v. Sandlin, 972 N.E.2d 371, 374–75 (Ind. Ct. App. 2012).

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[26] Mother contends that the trial court "erred when it calculated Mother's child

support obligation because (1) the trial court included a portion of the childcare

expenses in Mother's child support obligation, and (2) the trial court included a

portion of the medical insurance premium in Mother's child support

obligation.” Appellant's Br. p. 27. However, review of the trial court's child

support order indicates that the trial court did not assign a portion of either

childcare or medical insurance costs to Mother, but rather assigned the full

amount of each to Father. With respect to Father's work-related childcare

expenses, the child-support worksheet adopted by the trial court assigns

responsibility for "$170.00” in weekly work-related childcare expenses to

Father and "$0.00” to Mother. Appellant's App. Vol. II p. 22. With respect to

medical insurance costs, the trial court, relying on demonstrative exhibits

submitted to the trial court by Father's counsel, notes an insurance cost of

"$52.85” which it credits to Father as an expense paid by Father. Appellant's

App. Vol. II p. 22. Given that the trial court's support order does not assign

any portion of the childcare or medical insurance expenses to Mother and that

the portions relating to Father's income as well as that imputed to Mother are

consistent with the amounts reflected in the record, we must agree with Father

that the trial court's "support calculations are consistent with the evidence and

testimony, properly calculated using the Indiana Child Support Guidelines.”

Appellee's Br. p. 14. The trial court did not abuse its discretion in this regard.

The judgment of the trial court is affirmed.