Date: 05-05-2022

Case Style:

Chad Burton v. Keesha (Burton) Richardville

Case Number: 19A-DR-01482

Judge: Paul D. Mathias

Court:

COURT OF APPEALS OF INDIANA

On appeal from The Daviess Circuit Court

Plaintiff's Attorney:

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Defendant's Attorney: Joseph L. Verkamp

Description:

Indianapolis, IN - Divorce lawyer represented Appellant with appealing from an order denying his motion for modification of child custody.

Mother and Father have one minor child, M.B., who was born in May 2007.
The parties’ marriage was dissolved by decree in May 2010. The dissolution
decree provided that Mother and Father would share joint legal custody of
M.B., that Mother would have primary physical custody, and that Father
would have standard parenting time. Father agreed to pay child support in the
amount of $129 per week. Mother received the marital residence and agreed to
accept the full responsibility for the mortgage on the residence. Appellant’s
App. pp. 14–23.
[4] Since the parties’ divorce, Mother has been M.B.’s primary caregiver. The
parties both reside in and M.B. attends school in Daviess County. Father’s
employment results in approximately $1,115 in pay per week, and Mother’s
employment results in approximately $748 in pay per week. Mother, a nurse, is
occasionally subject to call-in during emergency situations. M.B., age twelve as
of the date of the trial court’s order in this case, is a good student and
participates in various athletic activities. She has one stepsister and two halfsisters, all of whom are younger than M.B. Both Mother’s and Father’s
Court of Appeals of Indiana | Memorandum Decision 19A-DR-1482 | December 31, 2019 Page 3 of 19
households have experienced changes in the years since their divorce. Mother
remarried and gave birth to a second daughter with her husband. Divorce
proceedings in Mother’s second marriage were ongoing at the time of the
hearing in this custody modification matter. Father also remarried; his wife has
a daughter from a previous relationship who lives in the home with Father, and
together, Father and his wife have one daughter.
[5] On August 29, 2018, Father filed a Petition to Modify Child Custody and
Support. His petition alleged that substantial change in the parties’
circumstances necessitated a modification of custody. Appellant’s App. p. 27.
Father sought for the trial court to grant him primary physical custody of M.B.,
order Mother to pay child support, and for Mother to have standard parenting
time. Id. at 28. Father subsequently filed a Verified Motion for Contempt on
October 10, 2018, alleging that Mother had failed to make timely payments of
the mortgage on their marital residence, in violation of the settlement
agreement that was part of the trial court’s dissolution decree. Id. at 29.
[6] An evidentiary hearing was held on April 23, 2019, regarding both of Father’s
motions. Father alleged the following changed circumstances necessitated that
the trial court grant his motion to modify custody: Father’s wish to have
primary physical custody of M.B.; M.B.’s changed relationship with Mother;
M.B.’s wish to be in the primary physical custody of Father; M.B.’s age; M.B.’s
health; and M.B.’s adjustment to home and school. Father also alleged that
Mother had willfully refused to make mortgage payments, resulting in damage
to his credit score, which he argued warranted the trial court finding Mother in
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contempt. After hearing, the trial court interviewed M.B. in camera. On May
31, 2019, the trial court issued findings of fact and conclusions of law in its
order denying Father’s motion to modify custody and denying his motion for
contempt. This appeal followed. Additional facts will be provided as needed.
I. Custody Modification
[7] The general provision governing custody modification is found in Indiana Code
section 31-17-2-21. Modifications are permitted only if the modification is in the
best interests of the child and there has been a substantial change in one or
more of the factors identified in Indiana Code section 31-17-2-8 (“Section 8”).
Ind. Code § 31-17-2-21(a). The Section 8 factors relevant to the child’s best
interests 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
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, 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.
I.C. § 31-17-2-8.
[8] A parent who seeks modification of custody bears the burden of proving that
the existing custody order should be altered. Julie C., 924 N.E.2d at 1256 (citing
Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). When evaluating whether a
change to one or more Section 8 factors is a substantial change, the context of
the whole environment must be judged, and “the effect on the child is what
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renders a change substantial or inconsequential.” Jarrell v. Jarrell, 5 N.E.3d
1186, 1193 (Ind. Ct. App. 2014), trans. denied. The statutory requirement that a
court find a substantial change in at least one factor, in addition to determining
that modification is in the child’s best interests, “signals that the policy of
stability” should also guide a trial court’s consideration of a petition to modify
custody. Joe v. Lebow, 670 N.E.2d 9, 20 (Ind. Ct. App. 1996).
[9] Decisions by trial courts to modify child custody, parenting time, and child
support are all reviewed for abuse of discretion. Miller v. Carpenter, 965 N.E.2d
104, 108 (Ind. Ct. App. 2012). Where, as here, neither party requested findings
of fact and conclusions thereon, our standard of review is as follows:
When the trial court enters findings sua sponte, the specific
findings control only as to the issues they cover, while a general
judgment standard applies to any issue upon which the court has
not found. The specific findings will not be set aside unless they
are clearly erroneous, and we will affirm the general judgment on
any legal theory supported by the evidence. A finding is clearly
erroneous when there are no facts or inferences drawn therefrom
that support it. In reviewing the trial court’s findings, we neither
reweigh the evidence nor judge the credibility of the witnesses.
Rather, we consider only the evidence and reasonable inferences
drawn therefrom that support the findings.
Julie C. v. Andrew C., 924 N.E.2d 1249, 1255 (Ind. Ct. App. 2010) (internal
citations omitted).
[10] Here, the trial court concluded that there had been no substantial change in
circumstances in any Section 8 factor. Appellant’s App. pp. 11–12. As an initial
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matter, Father contends that the trial court erred as a matter of law by relying
on a “superseded legal standard.” Appellant’s Br. at 22. Father also argues that
because the trial court erred in its factual findings, its conclusion of law was
unsupported by the evidence. Id. We address each in turn.
A. Whether the Trial Court Applied an Outdated Legal Standard
[11] Father takes issue with the trial court’s citation to Lamb v. Wenning, 600 N.E.2d
96 (Ind. 1992), which predates the legislature’s 1994 amendment to the
applicable custody modification law. Specifically, the trial court quoted from
Lamb in reference to the standard it used in evaluating Father’s petition to
modify custody:
8. When considering a custody change a “more stringent
standard” is required than for an initial custody determination
because [“]permanence and stability are considered best for the
welfare and happiness of the child.” Lamb v. Wenning, 600
N.E.2d 96 (Ind. 1992).
The parties were divorced in the year 2010 and for the past nine
years [M.B.] has been in the custody of her Mother and [M.B.]’s
best interest would best be served that such custody continue.
Appellant’s App. p. 12.
[12] Father correctly points out that the 1994 amendment eliminated the prior, “very
strict” requirement that a party who seeks custody modification must prove that
the existing custody arrangement is made unreasonable by substantial changes
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to the Section 8 factors. See In re Marriage of Sutton, 16 N.E.3d 481, n.5 (quoting
Joe, 670 N.E.2d at 19).
[13] We have previously explained the effect of the 1994 amendment to the custody
modification law:
. . . [T]he legislature has deleted or modified certain language
which embodied the strict standard. Most notably, the statutory
language requiring that the changed circumstances “make the
existing custody order unreasonable” has been deleted. Further,
the requirement that there be substantial and continuing changes
in the “circumstances” has been modified, so that the court need
now find only a “substantial change” in one or more of the
factors which the court considers in determining the child’s best
interests. . . . We find from these rules strong support [] that the
legislature deliberately lessened the [strict] standard for
modification.
However, a plain reading of the revised statute makes equally
clear that the legislature has not simply adopted the “best
interests” standard . . . applied at the time of the initial custody
determination []. While the revised statute still requires the trial
court to find that a modification in custody is in the child’s best
interests, it is also required to find a “substantial change” in one
of the factors which are considered in determining the child’s best
interests.
. . . [W]e note that the rule applicable to initial custody
determinations that “there shall be no presumption favoring
either parent” has not been incorporated into the modification
context.
Joe, 670 N.E.2d at 19–20 (internal citations omitted).
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[14] Therefore, we agree with Father only to the extent that the trial court erred in
citing to an outdated legal standard. However, we do not believe the trial court
applied the more stringent standard to which petitioners were held before 1994,
as in Lamb. Our review of the record indicates that the trial court properly
considered whether Father had proven a substantial change in one or more
Section 8 factors in addition to demonstrating that custody modification was in
M.B.’s best interests overall, as is required under the current statutory scheme.
Accordingly, we now review whether the trial court abused its discretion when
it denied Father’s petition for custody modification.
B. Whether the Trial Court Abused its Discretion
[15] Father argues that the trial court made several clear errors in its findings of fact
and conclusions of law. And, Father argues, to the extent the trial court relied
on erroneous findings to reach its decision, the court abused its discretion in
denying his petition to modify custody. Appellant’s Br. at 22. The trial court’s
conclusions regarding the presence of changed circumstances in the Section 8
factors that Father alleged are as follows:
2. There has been no substantial change in circumstances in this
case in any of the factors identified in Ind. Code § 31-17-2-21. . . .
3. The Court gives the child’s wishes consideration but does not
assign controlling weight.
4. While there may be evidence that relationships the Child has
with parents, siblings and others could be better or could be
improved, the evidence does not demonstrate that there has been
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a substantial change in circumstances that, coupled with the best
interest of the Child, require a change in custody.
Appellant’s App. pp. 11–12.
[16] The parties presented evidence concerning a number of the Section 8 factors,
and the trial court made specific findings regarding Father’s wishes, M.B.’s
relationships with her siblings and peers, and M.B.’s wishes. Father explained
at the hearing that although he did not seek physical custody of M.B. at the
time of his dissolution of marriage to Mother, his wishes have changed since
then. Specifically, Father now believes he should have custody of M.B. because
Mother left M.B. unsupervised and tasked with caring for younger children on
three or four occasions. Appellant’s Br. at 22–24. Mother described two
evenings on which M.B. and her sibling were home alone while Mother, a
nurse, worked late. Tr. p. 129. Father described a third instance, on an
afternoon when he picked up M.B., where no adult was present to supervise the
other children, requiring Father to wait twenty-five to thirty minutes before an
adult arrived. Tr. pp. 28–30. The trial court, however, found as fact that M.B.
and her half sibling were “left alone one evening.” Appellant’s App. p. 11. This
factual finding is clearly erroneous because Mother agreed that M.B. had been
left alone on two occasions. Tr. p. 129. The error, however, is of little
consequence when considered in the context of the court’s other findings that
supported its judgment. Therefore, this specific finding need not be set aside,
despite its misstatement of one of the reasons why Father now wishes to have
physical custody of M.B.
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[17] Father also takes issue with the trial court’s conclusion regarding M.B.’s
adjustment to and relationships at home and school, specifically the court’s
conclusion that M.B. “has always seemingly had a good relationship with both
parents; has a healthy relationship with her younger half sibling and fellow
students in school and those in the community.” Appellant’s App. p. 12. Father
points to conflicting evidence that M.B. has experienced bullying at school and
that she feels jealous of attention given by her Mother to her younger half-sister.
Tr. pp. 113, 126. Father presented evidence in the form of M.B.’s journal entries
reflecting discord in her relationships with peers at school. Ex. Vol.,
Respondent’s Ex. 2.
[18] The trial court’s use of the superlative “always” is, of course, an overstatement
in the sense that no relationship can be adequately described as always in one
state or another. This descriptive error, however, does not indicate an abuse of
discretion by the trial court, which could have heard Father’s evidence of
typical turmoil between an adolescent child and her peers, younger sibling, and
parent, and nevertheless reasonably concluded in light of Mother’s testimony
that M.B.’s relationships are generally good and healthy. See Kirk, 770 N.E.2d
at 307 (“[W]e are in a poor position to look at a cold transcript of the record,
and 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[.]”)
[19] The last challenge to a specific finding by the trial court has to do with M.B.’s
own wish, which Father contends is to live with him rather than with Mother.
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Appellant’s Br. at 27. The court, after conducting an in camera review with
M.B., noted that it “gives the child’s wishes consideration but does not assign
controlling weight.” Appellant’s App. p. 12. This was well within the trial
court’s discretion for two reasons. First, because Indiana Code section 31-17-2-
8(3) directs courts to give more consideration to children who are at least
fourteen years old, and M.B. was eleven at the time of hearing. And second,
because, again, the trial court is the better judge of the significance of witness
testimony. M.B.’s wishes were considered with all the other relevant Section 8
factors in the context of whether custody modification is in her best interests,
but her wishes are not dispositive of the issue.
[20] Father’s appeal is also based on evidence he presented regarding several other
Section 8 factors, about which the court did not issue specific findings. Those
factors are M.B.’s health, M.B.’s relationship with her Mother, and M.B.’s age.
At hearing, Father expressed concern for M.B.’s mental health and now argues
that the court abused its discretion in not concluding that the evidence
represented a substantial change in M.B.’s health. Appellant’s Br. at 25. The
court heard from Father and M.B.’s stepmother about changes in M.B.’s mood
and her “up-and-down” feelings; Father attributes these changes to M.B.’s
“current home life with Mother and [] issues at school.” Id. Also, Father notes
that M.B. has “concerns over her weight” that contribute to what he says is a
substantial change in her health. Id. at 26. Father’s concerns about M.B.’s
health were not accompanied, however, by him taking a more active role in
M.B.’s health care: Father did not participate in counseling with M.B. and did
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not know the identity of her primary care physician. Tr. p. 79. The trial court
could hear this evidence and reasonably conclude that Father’s concerns about
M.B.’s health do not amount to the substantial change required by statute
before modifications to custody may be made.
[21] Father also argues there has been substantial change in M.B.’s relationship with
Mother, based on M.B.’s reports to Father that she is unhappy with the amount
of attention she receives from mother and that Mother shows “favoritism” to
M.B.’s younger half-sister. Appellant’s Br. at 26. Mother testified that M.B.
knows she is loved “unconditionally” at home, and that M.B. reciprocates her
love for Mother. Appellee’s Br. at 9–10. Again, we are confident that the trial
court gave due consideration to M.B.’s wishes and considered Father’s
observations about the changing nature of M.B.’s relationship with her parents,
and reasonably concluded that Father had not proved substantial change in the
relationship that warranted modification of custody. The trial court noted there
was evidence “that relationships [M.B.] has with parents, siblings and others
could be better or could be improved.” Appellant’s App. p. 12.
[22] Finally, Father points out that with age, M.B.’s interests and hobbies have
changed, and that he is better suited than Mother to support M.B.’s interest in
athletics. Appellant’s Br. at 27. Once again, we are mindful that the trial court
was in the best position to assess the facts and the credibility of the witnesses.
For the trial court to conclude that evidence of M.B.’s interests changing with
her growth does not equate to substantial change as contemplated by Indiana
Code section 31-17-2-21 is not an abuse of the trial court’s discretion.
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[23] For all of these reasons, we conclude that the trial court’s factual findings were
not clearly erroneous and that the evidence did not demonstrate a substantial
change in one or more Section 8 factors. Father’s claims amount to a request
for us to reweigh the evidence, which we will not do. Thus, the trial court’s
judgment on modification of custody was consistent with the evidence, and we
affirm it.
II. Contempt
[24] Father also argues that the trial court abused its discretion by declining to find
Mother in contempt for failing to make mortgage payments on the marital
home, as the parties’ dissolution decree requires. Appellant’s Br. at 18. A party
that is willfully disobedient to a court’s order may be held in contempt of court.
City of Gary v. Major, 822 N.E.2d 165, 170 (Ind. 2005). “[C]ontempt of court
involves disobedience of a court which undermines the court’s authority,
justice, and dignity. Hopping v. State, 637 N.E.2d 1294, 1297 (Ind. 1994). We
review the trial court’s judgment under an abuse of discretion standard, it being
“soundly within the discretion of the trial court to determine whether a party is
in contempt[.]” Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012)
(citation omitted). And, we limit our review to a consideration of the evidence
and reasonable inferences drawn therefrom that support the trial court’s
judgment. Piercey v. Piercey, 727 N.E.2d 26, 31 (Ind. Ct. App. 2000). “Crucial to
the determination of contempt is the evaluation of a person’s state of mind, that
is, whether the alleged contemptuous conduct was done willfully.” Witt, 964
N.E.2d at 202. Establishing the existence and knowledge of arrearage may not
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amount to willful disregard of a court order, Sutton v. Sutton, 773 N.E.2d 289,
297 (Ind. Ct. App. 2002); however, the person alleged to be in contempt bears
the burden of showing that the violation was not willful. Williamson v. Creamer,
722 N.E.2d 863, 865 (Ind. Ct. App. 2000).
[25] The parties’ dissolution decree requires the following of Mother in relation to
mortgage payments:
That Wife shall assume and be responsible for all expenses
incidental to her ownership of [the former marital real estate]
including, without limitation, the mortgage indebtedness owing
to Region Bank, real estate taxes and insurance.
* * *
16. That the parties stipulate as of this date (the date of this
Agreement) that each party has the financial resources and
potential earning ability to pay the indebtedness above allocated.
Appellant’s App. pp. 18–20.
[26] Mother’s monthly mortgage payment is approximately $660. Ex. Vol.,
Respondent’s Exs. 17, 20. A Regions Bank mortgage statement addressed to the
parties revealed that, as of December 17, 2018, past due payments totaled
$1,966.81, plus other fees due including $128.20 in late charges and a $25.00
property inspection fee. Ex. Vol., Respondent’s Ex. 17. As of April 17, 2019,
past due payments totaled $1,327.26, plus other fees due including $230.76 in
late charges and a $37.50 property inspection fee. Ex. Vol., Respondent’s Ex.
20. Upon question by her counsel, Mother admitted that she had made late
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payments. Tr. p. 123. Mother explained that being “tight on money” and “on
your own without a supplemental income” contributed to the arrearage. Tr. pp.
123, 125. She denied deliberately refusing to obey the terms of the dissolution
decree. Tr. p. 125. The remainder of her testimony pertaining to Father’s
contempt allegation was limited to how she intended to make timely payments
in the future. Tr. pp. 123–25.
[27] On cross examination, Mother explained:
Q: . . . Well, ma’am, it sounds like you’re pretty much in a
financial hole. So what’s your plan for getting out of it so that
you’re caught up on this mortgage payment?
A: Working extra. I have the ability to be able to take call and
work extra, so I’ve been trying to do that to make more money to
be able to pay my bills and –
Q: Okay.
A: – get them caught up.
Q: How long have you had the ability to take extra work?
A: How long have I?
Q: Yes.
A: Always.
Tr. pp. 131–32.
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[28] The court then engaged in a brief exchange with Mother:
Q: Let me ask this. Keesha, do you agree that your – I think we
have some documents that show [$]2,700. You think you’re
about [$]2,200 behind?
A: Yeah. If the – including May, what’s due –
Q: Is the home [] listed for sale?
A: No.
Q: You going to try to sell it?
A: No. I don’t want to.
Q: Well [] you understand the – your order from your decree is
that you make the payments, and by not mak[ing] the payments,
you’re not just hurting [Father’s] credit, you’re dragging yours
down too, right?
A: Yes.
Q: So refinance is probably going to be almost impossible to do.
Your credit score’s sinking too much, correct?
A: Probably.
Q: Have you tried that?
A: No, I have not.
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Q: Have you tried to borrow any funds to catch it up from
anyone else?
A: My parents have helped me a little bit.
Tr. pp. 132–33.
[29] The trial court found that Mother’s arrearage was due to her “financial situation
in the current dissolution of her marriage.” Appellant’s App. p. 12. It went on
to conclude that she had not willfully refused to abide by the court’s order and
was therefore not in contempt. Appellant’s App. p. 13.
[30] Though our review for contempt matters is highly deferential, there must be
evidence in the record before us from which the trial court could determine that
alleged contemptuous conduct was not willful. See, e.g., Steele-Giri v. Steele, 51
N.E.3d 119, 129 (Ind. 2016) (affirming denial of contempt because father’s
conduct was not willful, as the record contained evidence of his state of mind;
namely, that he lacked the knowledge that his actions violated an order of the
court related to the parents’ shared decision-making responsibility for child’s
education). Here, Mother’s explanation of the arrearage—especially as to her
state of mind—lacked the level of detail from which the trial court could
conclude or even infer that Mother’s actions were not willful. The trial court’s
denial of Father’s motion to hold Mother in contempt was therefore an abuse of
discretion. Thus, we reverse the denial to hold Mother in contempt and remand
for proceedings not inconsistent with this opinion

Outcome: We afford substantial deference to trial court judges in family law matters and
note that “on appeal it is not enough that the evidence might support some
other conclusion . . . it must positively require the conclusion contended for by
appellant before there is a basis for reversal.” Kirk, 770 N.E.2d at 307 (footnote
omitted). Here, we conclude that there was ample evidence to support the trial
court’s determination that a custody modification was not required and was not
in M.B.’s best interests. However, we conclude that there was insufficient
evidence supporting the trial court’s determination that Mother’s
noncompliance with an order of the court was not willful. Thus its denial of
Father’s motion to hold Mother in contempt was an abuse of discretion.

[32] Affirmed in part, reversed in part, and remanded.

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