LEE v. LEE (2024)

MEMORANDUM DECISION

[1] This case involves the modification of a child custody arrangement between Kara Lee (Mother) and Zachariah Lee (Father). Mother appeals the trial court's order granting Father primary physical custody of their 7-year-old child, S.L. (Child), arguing that the court wrongfully considered facts not in evidence and improperly weighed “the relative disparity of wealth” between Mother and Father. We affirm.

Facts

[2] Mother and Father were married in July 2018, a little over one year after Child's birth. Mother has three other daughters from previous relationships: L.W., P.F., and R.F (collectively, Siblings). R.F. has a genetic birth defect and uses a wheelchair. P.F. has had heart surgeries and has minor physical limitations.

[3] Mother and Father divorced in November 2021. Mother was awarded primary physical custody of Child, with Father granted only supervised visitation. Around this time, Father was charged with sexual abuse against L.W. The charges were eventually dismissed and expunged. In September 2023, Father petitioned to modify custody, seeking primary physical custody of Child.

[4] The trial court held two fact-finding hearings with several witnesses, including Mother, the assigned Guardian Ad Litem (GAL), and Child's paternal grandmother. The GAL's report and testimony addressed the parties’ living situations and financial circumstances. Child then lived in Mother's household, which also included Siblings, Child's aunt, and Child's maternal grandmother. In contrast, Father lived with just his mother in a house on a farm. The GAL noted that Father could provide Child with her own room and access to various amenities. The GAL also expressed his view that L.W. had been molested but that he did not believe Father was the perpetrator. The GAL expressed concerns about Father's brother, recommending that he never be left alone with Child.

[5] After considering this evidence, the trial court modified the custody arrangement, awarding primary physical custody of Child to Father. The court granted Mother “at least the minimum” amount of parenting time set forth in the parenting time guidelines, the equivalent of Father's parenting time under the prior custody arrangement. App. Vol. II, p. 16.

Discussion and Decision

[6] Because neither party requested specific findings, and the trial court's order contains none, we review the trial court's decision as a general judgment and will affirm “upon any theory consistent with the evidence.” Baxendale v. Raich, 878 N.E.2d 1252, 1257 (Ind. 2008). We do not reweigh evidence or witness credibility and will set aside the trial court's conclusions only if clearly erroneous. Id. “We will not substitute our own judgment if any evidence or legitimate inferences support the trial court's judgment.” Id.

I. Consideration of Evidence

[7] Mother first argues that the trial court “improperly weighed facts not in evidence” in deciding whether to modify custody.¹ Appellant's Br., p. 7. Mother faults the trial court's reference to its personal understanding about the dismissal and expungement of the criminal charges against Father for allegedly sexually abusing Child's older sister.

[8] The trial court made the following statement at the close of the factfinding hearing:

Okay. I would also like to allay any fears that, no matter what you think happened in the past, ask around, this County prosecutes to the fullest anything to do with sex crimes against children․ And in this instance, the evidence demonstrated that the case against Father should be dismissed. So, no matter how you might have some feelings, this wasn't done lightly. This case was dismissed and it was determined that this man should not be prosecuted for this. So, no matter what you think ․ the State of Indiana said it would be wrong to prosecute this individual. So, we have to take it; not only that he was presumed innocent, but that he was innocent. So, I'm not going to give that a lot of weight, the fact that, that he was once charged with that.

Tr. Vol. II, p. 201 (cleaned up).

[9] Even assuming the comments went beyond the evidence presented at the custody hearing, the comments were not improper. The trial court's remarks were extraneous commentary, intended to offer a window into the court's thought process. “We afford trial judges ample ‘latitude to run the courtroom and maintain discipline and control of the trial.’ ” In re J.K., 30 N.E.3d 695, 698 (Ind. 2015) (quoting Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997)). The trial court's order modifying custody does not reference or rely on any fact or opinion mentioned in the challenged comments.

[10] Further, the fact that charges were brought and subsequently dismissed was known to both parties and the trial court. While the judge's interpretation of the dismissal's significance may have exceeded the evidence before it, being based on his personal knowledge of the county's criminal justice system, the mere fact of the dismissal was already before the trial court. All in all, Mother's claim that the trial court's “decision to treat these allegations with little weight” was error is merely a request for this Court to reweigh the evidence. Appellant's Br., p. 9. We will not do so. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (citing Brickley v. Brickley, 210 N.E.2d 850, 852 (Ind. 1965)).

II. Custody Modification

[11] Next, Mother claims that the trial court improperly based its decision largely on Father's wealth. This was an error, Mother says, because the relative wealth of the parents is not a proper factor for determining a child's best interests.

[12] Existing custody arrangements will be modified only if: “(1) the modification is in the best interests of the child; and (2) there is a substantial change in one ․ or more of the factors that the court may consider.” Ind. Code § 31-17-2-21(a). Our legislature has provided a list of nine non-exclusive factors for the factfinder to consider when determining a child's best interests. These 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.

(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.

Ind. Code § 31-17-2-8. As Mother notes, the relative wealth of the parents is not among the listed factors.

[13] As to the change in circumstances warranting modification of the custody arrangement, the GAL testified that it was “obvious” that the dismissal of the pending charges against Father and the attending expungement made for “no comparison to the situation that existed then, when this Order was entered and the situation that exists now.” Tr. Vol. II, p. 28. “When evaluating whether a change of circumstances has occurred that is substantial enough to warrant a modification of custody, the context of the whole environment must be judged, ‘and the effect on the child is what renders a change substantial or inconsequential.’ ” Montgomery v. Montgomery, 59 N.E.3d 343, 350 (Ind. Ct. App. 2016) (quoting In re Marriage of Sutton, 16 N.E.3d 481, 485 (Ind. Ct. App. 2014)).

[14] The trial court's decision to grant custody to Father is supported by substantial evidence in the record and falls within the court's broad discretion in custody matters. While economic factors were discussed generally at the hearing, these were not the sole or even primary basis for the recommended modification. The GAL's report and testimony highlighted several non-economic factors favoring Father, including Child's expressed desire to live with him, Child's potential for having her own room, and the overall environment of Father's home. These considerations go beyond economic advantage and speak to Child's emotional well-being and comfort. See Sanford v. Wilburn, 185 N.E.3d 451, 455 (Ind. Ct. App. 2022) (emphasizing that “the effect of the change on the child is what makes it either substantial or inconsequential”).

[15] The trial court's decision is also bolstered by the testimony and evidence presented at the hearing. Father demonstrated his ability to provide a stable and nurturing environment for Child, including appropriate living arrangements and a commitment to her educational and emotional needs. Although nothing in the evidence reflected that Mother could not also satisfy Child's needs, we rely on the GAL's testimony that there is simply “no comparison” between the two potential living environments. Tr. Vol. II, p. 27.

[16] And while Mother argued that separating Child from Siblings would be detrimental, the trial court was within its discretion to weigh this factor against others, such as Child's expressed wishes and the potential benefits of living with Father. Indeed, we note that the trial court strongly weighed Siblings as a factor in Mother's favor, noting that “it takes an awful lot, basically striking water from a rock, to get me to ever remove one child from others.” Id. at 201.

[17] In sum, the trial court's decision reflects consideration of several of the statutory factors outlined in Indiana Code § 31-17-2-8. The court considered the child's wishes, her interaction and interrelationship with Father, and her potential adjustment to a new home and community. See In re K.I., 903 N.E.2d 453, 460 (Ind. 2009) (“[A] substantial change in any one of the statutory factors will suffice [to support a modification.]”).

Conclusion

[18] Finding no reversible error in the trial court's consideration of the evidence and no abuse of discretion in the trial court's custody modification order, we affirm.

[19] Affirmed.

FOOTNOTES

1.   In her reply brief, Mother alleges for the first time that the trial court's comments showed bias against her. Because an appellant is not permitted to raise new arguments in a reply brief, this claim is waived. Ind. Appellate Rule 46(c) (“No new issues shall be raised in the reply brief.”).

Weissmann, Judge.

Vaidik, J., and Foley, J., concur.