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Date: 01-31-2022
Case Style:
Paternity: Christine Ling Chen v. Robert Lee Brewer
Case Number: 21A-JP-1184
Judge: Cale J. Bradford
Court:
COURT OF APPEALS OF INDIANA
On appeal from The Bartholomew
Superior Court
Plaintiff's Attorney:
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Defendant's Attorney: Julianne Cartme
Description:
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.
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 3 of 18
[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.
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 4 of 18
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.
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 5 of 18
[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
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 6 of 18
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
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 7 of 18
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.
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 8 of 18
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
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 9 of 18
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
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 10 of 18
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.
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 11 of 18
(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.
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 12 of 18
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.
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 13 of 18
[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.
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 14 of 18
[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.”
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 15 of 18
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
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 16 of 18
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.
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 17 of 18
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).
Court of Appeals of Indiana | Memorandum Decision 21A-JP-1184 | January 25, 2022 Page 18 of 18
[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.
Outcome: The judgment of the trial court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: