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In November 2010 the talk around the high conflict parenting campfire was that the Indiana Court of Appeals in Paternity of CH had granted trial judges the authority to appoint a Level II parenting coordinator over the objection of parents. A reading of the opinion though revealed that Mother’s basis for appeal was her contention that the court lacked authority to appoint the PC without a request by either party. What the mother, Kristy A. Lamm, failed to acknowledge was that the trial court on its own volition suggested PC to the parties and she, contrary to her assertion that
she did not agree to the appointment of a parent coordinator, had stated during the hearing, “absolutely . . . that would be great,” when the trial court announced that it was going to appoint a PC.
I was reminded of that when I read the 07 August 2014 opinion in Rippe v Rippe. In that appeal counsel for Appellant Jeanne Rippe, Timothy Logan, challenges three trial court orders. The final of the three addressed the issue of wife’s contempt for failing to disperse about a half million dollars to husband as ordered by the court. Instead of having a hearing Mr. Logan and counsel for husband on the record stipulated that they agreed to proposed findings and conclusions on the outstanding matters, including wife’s contempt finding, which the trial court adopted as its order ver batim.
The Court rightly opined, citing a long held standard, that the issue was waived by Mr. Logan failing to object to the agreement at the trial court level. The opinion states, “To the extent Wife’s arguments challenge the November 2013 order, we note that Wife agreed to the provisions in this order at the November 2013 hearing and did not raise any objections to it. She cannot challenge the agreement for the first time on appeal. See Northern Indiana Public Service Co. v. Sloan, 4 N.E.3d 760, 766 (Ind. Ct. App. 2014), trans. denied. The issues in this order are waived. See Einhorn v. Johnson, 996 N.E.2d 823, 828, n. 4 (Ind. Ct. App. 2013), trans. denied, (finding waiver where a party failed to make an argument to the trial court).”
As to the other two trial court orders, both of which were final appealable orders when issued in 2011 the Court also rightly noted that it lacked jurisdiction because a Notice of Appeal was not filed within 30 days. I take this opportunity to stress the importance of the time limitations in the Indiana Rules of Appellate Procedure. Time limits are not discretionary. Failure to file on time in a jurisdictional sense means that the document does not exist. Mr. Logan and all attorneys who file appeals should be aware of these most basic of rules but it is always an ongoing display of incompetence that I see when reading the opinion in Indiana child custody cases.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Thursday, August 21, 2014
The Importance of Timing and Preserving Issues for Appeal
Tuesday, April 8, 2014
Indiana Court of Appeals Reverses Primary Parenting Time Modification from Mother to Father
In the unpublished opinion of Gallagher v Gallagher a panel of the Indiana Court of Appeals provided some useful guidance on sufficiency of evidence and the substantial change in circumstances requirement to modify physical custody. Last month I wrote Shared Parenting Time, Joint or Sole Legal Custody, and Joint or Primary Physical Custody - Indiana which explains some of the custody laws and the processes involved. You may also refer to that for definitions of the custody terms used here. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In Gallagher the parents by agreement had shared legal custody while mother had primary physical. Father moved to modify the agreement based primarily upon an improvement in his condition, particularly the stability he has attained including plans to marry. At the hearing the GAL advised to maintain the status quo since both parties had shown improvement during his involvement and no parent could handle parenting on their own. I tend to agree with the GAL on the point that a child generally has a better outcome when two parents are involved in his life but it is unusual to hear it said.
Mother indicated that she wished to maintain the custody arrangement. Father and his fiancé testified that it was in the Children’s best interest to be in their Father’s custody. At the close of the hearing, the trial court concluded that a substantial change in circumstances had occurred and that modification of custody was in the Children’s best interests. As a result, the trial court maintained joint legal custody but awarded Father primary physical custody of the Children. Mother then appealed based upon her assertion that Father failed to meet his burden of demonstrating that there has been a substantial change of circumstances and that custody modification was in the Children’s best interests. Her argument has segmented in three challenges to the court's findings being; (1) Mother had exposed Children to several boyfriends; (2) Mother had allowed her Child to skip school; and (3) Mother’s mental health.
Lesson #1
When your position is attacked on appeal you have an obligation to defend it. Failure to do, as the appellate court explains, allows for a reduced burden to be applied by the party seeking to challenge the ruling. The court noted that Father did not file an appellee’s brief. When an appellee does not submit a brief, the court will not undertake the burden of developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, they apply a less stringent standard of review and may reverse if the appellant establishes prima facie error. Id. Prima facie error is “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006). Thus, if mother could demonstrate that it appears that the trial court erred then the appellate panel needs look no further to reverse.
Lesson #2
Know what a substantial change is before seeking a modification. Father was required to demonstrate that there was a substantial change in at least one of the statutory factors. Custody orders may not be modified 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 [enumerated in I.C. § 31–17–2–8].” I.C. § 31–17–2–21; Browell v. Bagby, 875 N.E.2d 410, 413 (Ind. Ct. App. 2007), trans. denied. Particularly the court found that 1]
The parties’ [C]hildren have been exposed to several of [Mother’s] boyfriends, including one who is now in prison; 2] The [C]hildren had better attendance when they lived with [Father]. They have adjusted well to both homes; and 3] [Mother] has improved regarding substance abuse issues. Her life is the most stable it has been.
As for 1] the appellate panel concluded, “Mother contends that even if her [boyfriend] is now in prison, it doesn’t support the finding that there was a substantial change in the circumstances. We agree. There is no evidence to suggest that [boyfriend’s] involvement with the Children significantly affected their interest in any harmful way.”
As for 2] the appellate panel concluded, “Evidence presented at trial shows that [child] was absent from school seven times, but five of those absences were excused. Mother argues that while this finding is supported by the evidence, it revealed nothing more than an isolated act of misconduct which does not support a modification of custody. We note that the noncustodial parent must show something more than isolated acts of misconduct by the custodial parent to warrant a modification of child custody. See Wallin v. Wallin, 668 N.E.2d 259, 261 (Ind. Ct. App. 1996).”
As for 3] the appellate panel concluded, “Mother argues that the finding that her mental health, physical health, and substance abuse issues have improved only reaffirms her position that her life is stable. Mother therefore argues that the evidence did not support the modification of custody. . . . We agree with Mother that the evidence is contrary to the finding that there has been substantial change in the circumstances to justify a modification.”
Lesson #3
If you don't feel that the trial court acted within the confines of the law then appeal. This is a fundamental part of due process – the right to review of the trial court's ruling. There are limited circumstances in which an appeal may be taken or is justified. The appeal process is not an opportunity for a panel to rehear the case but, rather, is an opportunity to present to the panel that the trial court's ruling was contrary to law subject to the relevant standard of review. The panel in Gallagher explained the standard of review for parenting time modification:
When reviewing a custody determination, we afford the trial court considerable deference as it is the trial court that observes the parties’ conduct and demeanor and hears their testimony. Kondamuri v. Kondamuri, 852 N.E.2d 939, 945–46 (Ind. Ct. App. 2006). We review custody modifications for an abuse of discretion “with a preference for granting latitude and deference to our trial judges in family law matters.” Werner v. Werner, 946 N.E.2d 1233, 1244 (Ind. Ct. App. 2011) (quoting K.I. ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009)), trans. Denied. We will not reweigh the evidence or judge the credibility of witnesses. Kondamuri, 852 N.E.2d at 946. Rather, we will reverse the trial court’s custody determination based only upon a trial court’s abuse of discretion that is “clearly against the logic and effect of the facts and circumstances or the reasonable inferences drawn therefrom.” Id. “[I]t is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by the appellant before there is a basis for reversal.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002).
In this case Father bore the burden of establishing that the existing custody order was unreasonable and should be altered due to a substantial change in circumstances which has occurred since the date of the previous custody decree and affecting the Children’s welfare. See Cunningham v. Cunningham, 787 N.E.2d 930, 935 (Ind. Ct. App. 2003). Although the trial court made these findings;
A] The parties’ [C]hildren have been exposed to several of [Mother’s] boyfriends, including one who is now in prison;
B] The [C]hildren had better [school] attendance when they lived with [Father]. They have adjusted well to both homes; and
C] [Mother’s] mental health and physical health has improved. She has improved regarding substance abuse issues. Her life is the most stable it has been. [Father’s] life is the most stable it has been in some time as well;
although mother did not agree.
Particularly mother contended that she did not have several boyfriends. The Court agreed: “[W]e find no evidence to demonstrate that Mother had exposed the Children to several boyfriends. The only evidence in the record indicates that Mother had two boyfriends. Mother began dating J.W., the father to her four-year-old son, in 2009, and he later became incarcerated for nonpayment of child support. Mother contends that even if J.W. is now in prison, it doesn’t support the finding that there was a substantial change in the circumstances. We agree. . . .[W]e find that the trial court erred in finding the evidence about Mother’s past relationships demonstrated she had exposed the Children to several boyfriends. As such, we find that there was no substantial change to warrant a modification of custody ”
Next mother argues that the child's absences from school were an isolated incident not sufficient to modify custody. The Court agreed: “Evidence presented at trial shows that T.G. was absent from school seven times, but five of those absences were excused. Mother argues that while this finding is supported by the evidence, it revealed nothing more than an isolated act of misconduct which does not support a modification of custody. . . .[W]e find that this was an isolated act, and we don’t find it to be so egregious so as to support a modification of custody. ”
Finally, mother contends that the finding that her mental health, physical health, and substance abuse issues have improved only reaffirms her position that her life is stable. Mother therefore argues that the evidence did not support the modification of custody. The Court agreed finding: “[T]he evidence is contrary to the finding that there has been substantial change in the circumstances to justify a modification. Rather, a deterioration of Mother’s mental or physical health would in essence support the trial court finding that there has been a substantial change. See Owen v. Owen, 563 N.E.2d 605 (Ind. 1990) (holding that a worsening mental condition may constitute a change in circumstances sufficient to necessitate modification of custody). It would therefore follow that an improvement in Mother’s mental and physical condition should not have necessitated the trial court to modify the custody.”
In this case the trial court articulated its' findings as to the statutory factors in which a substantial change had occurred which warranted a change in primary physical custody. However, the evidence was weak, was not ongoing, or did not support the findings consistent with the statutory mandate that there must be a substantial change in the various factors that would justify a custody modification. You can read more about the appeal process here.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
