Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
ANTHONY C. LAWRENCE
THOMAS L. HULSE
Hulse Lacey Hardacre Austin & Shine, P.C.
COURT OF APPEALS OF INDIANA
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Fredrick R. Spencer, Judge
Cause No. 48C01-0608-DR-981
May 21, 2007
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAKER, Chief Judge
Appellant-petitioner Richard Brown appeals from the denial of his petition to modify
custody. In particular, Richard argues that the trial court erroneously concluded that he failed
to establish a substantial change in circumstances necessitating a modification of the child
custody agreement in place between Richard and appellee-respondent Kristi Brown regarding
their minor daughter, F.B. Finding no error, we affirm the judgment of the trial court.
Richard and Kristi were married in 1997, and F.B. was born of the marriage on
December 24, 1997. Their marriage was dissolved on March 19, 2003, and the settlement
agreement provided that Kristi would have physical custody and the parties would share joint
legal custody of F.B.
At some point following the dissolution, Kristi decided to relocate to New Mexico to
be nearer to her family. Kristi believed that it would be best for F.B. to finish the school year
in Pendleton before relocating, so Kristi and Richard agreed that Richard would have
physical custody of F.B. from January 28, 2005, until July 22, 2005, at which time physical
custody would be returned to Kristi. The trial court approved the agreement.
On June 6, 2005, prior to the date on which physical custody was to be returned to
Kristi, Richard filed a petition to modify custody, arguing that Kristi’s new life in New
Mexico and F.B.’s adjustment to life with Richard constituted a substantial change in
circumstances warranting a custody modification. The trial court held a hearing on Richard’s
petition on October 18 and 19, 2006. 1 At the hearing, it was established that Kristi relocated
A number of procedural events occurred between the time of the filing of the petition and the hearing
thereon that are irrelevant to our disposition herein. Briefly, however, we note that the trial court initially
to New Mexico on January 31, 2005. Initially, she lived with her parents for six weeks until
she found her own place to live. She worked at Wal-Mart, where she met her current
husband, with whom she has a child who was six weeks old at the time of the modification
hearing. Kristi, her husband, and their child are currently living with her husband’s parents.
They moved into her in-laws’ residence because they wanted to care for Kristi’s father-inlaw, who had been experiencing health problems. Kristi’s father-in-law has recovered and, at
the time of the hearing, Kristi, her husband, and their child planned to move into their own
Richard remarried in April 2005, and he and his wife adopted a child who was four
years old at the time of the hearing. F.B. became attached to the child, who she considered to
be her sister, and was also attached to other members of her extended family in the area.
Richard owns a computer consulting business and his wife is a financial systems coordinator
for the National Department of Labor. Their annual household income is approximately
Richard and Kristi are both concerned about F.B.’s education. Kristi points out that
during the year and a half in which F.B. had been living with Richard, F.B.’s grades began to
decline. Kristi states that she has always helped F.B. with her school work and that, in New
Mexico, F.B. would attend the same school that Kristi had attended as a child. Kristi’s
granted Richard’s petition and subsequently granted Kristi’s Trial Rule 60 motion for relief from that
judgment, ordering that the status quo remain such that Richard continued to have temporary custody of F.B.
pending a hearing on his petition. The trial judge originally assigned to the case then recused himself and
appointed a panel for the selection of a special judge. A succession of special judge panels was named and,
mother-in-law is a college graduate, a permanent substitute teacher, and a tutor, and is
available to help F.B. if needed. F.B. has a common difficulty with the pronunciation of the
letter “r,” and if F.B. needs speech therapy, it is available to her in New Mexico.
Richard, on the other hand, emphasizes that he and his wife are heavily involved in
F.B.’s education. Richard was a classroom coordinator and volunteered with different school
activities. He maintained consistent contact with F.B.’s teacher and ensured that homework
was a priority for F.B.
Kristi’s father-in-law serves as an interim pastor in a New Mexico church. Kristi
attends that church and would take F.B. with her if she moved to New Mexico. Richard and
his wife were members of a church in Indiana and ensured that F.B. participated in church
F.B. spoke with the trial court following a visit to New Mexico. She said that she had
a “great time” with her mom and that she felt more comfortable in New Mexico than in
Indiana. Tr. p. 433-34. Numerous witnesses testified that Kristi had a strong bond and
loving relationship with F.B. Kristi also testified that Richard is “a good father.” Id. at 191.
On October 27, 2006, the trial court denied Richard’s petition to modify custody,
finding that Richard “has not proved by a preponderance of the evidence that there has been a
substantial change of circumstances such as to make the prior order of custody
unreasonable.” Appellant’s App. p. 73. The trial court awarded custody of F.B. to Kristi,
finally, after an interim special judge took over the case and then recused himself, the Honorable Judge
Fredrick Spencer assumed jurisdiction on August 8, 2006.
ordered Richard to pay child support in the amount of $61 per week, ordered that Richard
will have parenting time pursuant to the Parenting Time Guidelines, and ordered Richard to
pay a portion of Kristi’s attorney fees. Richard now appeals.
DISCUSSION AND DECISION
I. Standard of Review
Richard argues that the trial court erroneously concluded that there has not been a
substantial change in circumstances such that a custody modification is warranted. Custody
modification decisions are reviewed for an abuse of discretion with a preference for granting
latitude and deference to trial judges. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). We set
aside judgments only when they are clearly erroneous, and will not substitute our own
judgment if any evidence or legitimate inferences support the trial court’s judgment. Id.
Therefore, on appeal, it 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. Id. In reviewing the trial court’s judgment, we do not weigh the evidence
or judge the credibility of the witnesses and consider only the evidence most favorable to the
judgment and the reasonable inferences that may be drawn therefrom. In re Marriage of
Richardson, 622 N.E.2d 178, 179 (Ind. 1993).
II. The Statutory Factors
Under Indiana Code section 31-17-2-21, a court may not modify a child custody order
unless modification is in the child’s best interest and there is a substantial change in one of
several factors that a court may consider in initially determining custody. Kirk, 770 N.E.2d
at 307. These factors are:
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the
child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s
(5) The child’s adjustment to the child’s:
(B) school; and
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic violence by either parent.
(8) Evidence that the child has been cared for by a de facto
custodian . . . .
I.C. § 31-17-2-8. In the initial custody determination, both parents are presumed equally
entitled to custody, but a petitioner seeking subsequent modification bears the burden of
demonstrating that the existing custody arrangement should be altered. Id.
Initially, Richard argues that the trial court erroneously failed to make findings
regarding each of the factors included in Indiana Code section 31-17-2-8. Although it is true
that the trial court is required to consider each of the factors, nothing in the statute or
elsewhere requires the trial court to make findings related thereto. Indeed, it is well
established that the trial court need not make specific findings regarding the statutory factors
unless such findings are requested. Hegerfield v. Hegerfield, 555 N.E.2d 853, 856 (Ind. Ct.
App. 1990). Here, neither party made such a request. We will presume, therefore, that the
trial court correctly followed the law. See Lynn v. Windridge Co-Owner’s Assoc., Inc., 830
N.E.2d 950, 954-55 (Ind. Ct. App. 2005) (holding that when reviewing a general judgment,
the presumption that the trial court correctly followed the law is one of the strongest
presumptions applicable to the consideration of an appeal). Keeping in mind our standard of
review, which requires that we consider only evidence favorable to the trial court’s judgment,
we turn to a consideration of each of the statutory factors set forth in Indiana Code section
A. Age and Sex of F.B.
At the time of the hearing, F.B., a girl, was approximately eight years old. This factor
does not weigh in favor of or against either of the parties.
B. The Wishes of F.B.’s Parents
Obviously, Richard wishes F.B. to remain in Indiana, whereas Kristi wishes F.B. to
relocate to New Mexico.
C. F.B.’s Wishes
F.B. told the trial court that she had a “great” time visiting her mother in New Mexico
and that she felt more comfortable in New Mexico than in Indiana. Tr. p. 433-34. That said,
it is apparent that F.B. loves both of her parents and her “new” stepfamilies a great deal.
D. Relationships Between F.B., Her Parents, and Her Other Family Members
The record reveals that F.B. and Kristi have a loving relationship and that they have a
strong bond. Id. at 270-71, 433-34. Kristi is an attentive mother who is involved in F.B.’s
education and schoolwork. She attends church and would ask F.B. to attend church with her
if she moves to New Mexico. Kristi’s husband, child, parents, and parents-in-law live in
New Mexico and would provide an extended support system for F.B.
It is equally apparent that F.B. enjoys a healthy and loving relationship with Richard,
his wife, and his daughter, as well as the other family members who live in Indiana.
Although Richard emphasizes the strength of F.B.’s relationship with his wife, we note that
we have disapproved of reliance on such evidence in the past:
We . . . disapprove of the court’s reliance on evidence regarding the
relationship M.B. formed with his step-mother and the care rendered by
her during Father’s custodial period . . . . [T]here is no evidence that
the step-mother would make a demonstrably better “parent” than
Mother or that M.B. does not have a loving relationship with Mother.
The court’s explanation for its order improperly elevates a step-parent’s
importance over that of the natural parent. Our courts should not
discourage a custodial parent from allowing a child to spend extra time
with the non-custodial parent for fear that any “adjustment” made or
“relationship” formed by the child with a third-party during that time
might later be deemed a substantial change in circumstances.
Bryant v. Bryant, 693 N.E.2d 976, 979-80 (Ind. Ct. App. 1998).
Furthermore, we note that although Richard emphasizes the comparative financial
circumstances of the parties, it is inappropriate to modify a child custody arrangement as a
means to effect an improvement in the child’s standard of living. Winderlich v. Mace, 616
N.E.2d 1057, 1059 (Ind. Ct. App. 1993). There is no evidence in the record that Kristi and
her husband will be financially unable to provide or care for F.B.; consequently, the fact that
they earn less income than that of Richard and his wife does not weigh in favor of a
modification of custody.
Finally, Richard insists that F.B.’s school in Indiana is superior to the school she
would attend in New Mexico. He has not established, however, that she would be deprived
of an adequate and appropriate education in New Mexico.
As a petitioner seeking the modification of a custody agreement, it is incumbent upon
Richard to establish a substantial change in these factors. He has not provided evidence of a
substantial change in the relationships at issue herein such that a modification is warranted.
E. F.B.’s Adjustment to Home, School, and Community
Richard filed the petition to modify custody shortly before F.B. was to return to
Kristi’s custody and relocate to New Mexico. The trial court ordered preservation of the
status quo, meaning that at the time of the hearing on Richard’s petition, F.B. had been living
with Richard in Indiana for nearly two years. F.B. was well adjusted to all aspects of her life
in Indiana and had not yet had time to adjust to life in New Mexico.
Kristi willingly allowed F.B. to remain with Richard temporarily upon Kristi’s
relocation to New Mexico so that F.B. could finish her school year. It would not be fair to
penalize Kristi for her willingness to sacrifice a few months of time with F.B. so that F.B.
could finish the school year. In Bryant v. Bryant, the mother was the child’s physical
custodian and resided with the child in Italy. 693 N.E.2d 976. She allowed the child to live
with the father in the United States for the school year, and in reversing the trial court’s
modification of custody, we “question[ed] the court’s reliance on evidence regarding M.B.’s
adjustment to life in the United States as proof of a substantial change. The court’s
conclusion effectively penalizes Mother for having allowed M.B. to live with Father for the
school year.” Id. at 979; see also Fridley v. Fridley, 748 N.E.2d 939, 942 (Ind. Ct. App.
2001) (holding that custodial parent’s relocation, in and of itself, is insufficient to warrant a
change of custody). Similarly, we conclude herein that it is improper to conclude that F.B.’s
adjustment to her life in Indiana and lack of adjustment to her life in New Mexico is a
substantial change in circumstances such that a change in custody is warranted.
F. The Final Three Factors
There is no indication in the record that any of the parties or individuals involved
herein have any mental or physical health difficulties that should be taken into account, that
there are any problems with domestic violence, or that there has been a de facto custodian
Ultimately, it is apparent that Kristi, Richard, and their respective families all love
F.B. a great deal and want what is best for her. In that sense, F.B. is very lucky.
Unfortunately, in ruling on this appeal we must necessarily separate her—geographically—
from either her father or her mother. We find substantial evidence in the record supporting
the trial court’s conclusion that Richard has not established a substantial change in
circumstances such that a change of custody is warranted. Richard directs us to evidence
supporting his desired outcome, but that is merely a request that we reweigh the evidence and
judge the credibility of witnesses—a practice in which we do not engage when reviewing a
trial court’s ruling on a petition for modification of custody.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and CRONE, J., concur.