GELIOS v. GELIOS (2024)

MEMORANDUM DECISION

Statement of the Case

[1] Danielle Gelios (“Mother”) and Timothy Gelios (“Father”) are the parents of four children and have been divorced since December 2023. At the time the trial court determined custody, parenting time, and support, only two of the four children were minors. The trial court awarded Father sole legal and primary physical custody of the minor children with Mother having supervised parenting time. Mother now appeals and raises one issue for our review: Whether the trial court clearly erred in determining legal and physical custody of the minor children.

[2] We affirm.

Facts and Procedural History

[3] Mother and Father were married in 2003 and primarily lived in Michigan before moving to Indiana with their four children in 2014. In the summer of 2021, Mother and Father separated and agreed to equally share custody of the two minor children. At that time, Mother was in a suboxone treatment program; she was also taking benzodiazepines without a prescription.

[4] In April 2022, Father filed for divorce. The next month, Mother was arrested and charged with leaving the scene of an accident with bodily injury; one of the older children was in the car with Mother when this occurred. Then in July 2022, while the minor children were in her care, Mother “cut her own wrists and had to be taken by ambulance” to the hospital. Appellant's App. Vol. II at 19.

[5] In August 2022, Mother told Father that she was not going to follow the previously established schedule for parenting time with the minor children, and she filed a motion for a provisional order regarding custody. In September 2022, the trial court appointed a guardian ad litem (“GAL”) at Mother's request, and in October 2022, the trial court issued a provisional order that awarded Mother and Father joint legal custody and Mother primary physical custody of the minor children.

[6] In July 2023, Father filed a motion for access to Mother's mental health records. Prior to Father filing this motion, the GAL had requested Mother to execute releases for her treatment records, but Mother did not cooperate. After a hearing on Father's motion, Mother signed the necessary releases in the courtroom. However, Mother revoked those releases shortly afterward; she signed new releases in August 2023, but her revocation of the original releases delayed the dissolution proceedings. Once the GAL was able to obtain Mother's medical records, she discovered that Mother's drug screen results were positive for substances for which Mother did not have valid prescriptions.

[7] In September 2023, Father filed a petition to modify custody and parenting time. Two weeks later, Mother was arrested and charged with operating a vehicle while intoxicated. Due to Mother's inability to stand unassisted, law enforcement officers took Mother to a hospital for a blood draw. There, she admitted she had taken Valium, among other drugs. Mother did not have valid prescription for Valium.

[8] On November 15, 2023, after a hearing, the trial court issued a second provisional order that maintained joint legal custody of the minor children but awarded Father primary physical custody of the minor children. The trial court ordered Mother to have parenting time pursuant to the Indiana Parenting Time Guidelines, but it also ordered that her parenting time had to be supervised by at least one of her parents. Additionally, the trial court required Mother to engage in services for substance abuse, refrain from operating a vehicle if the children were in it, and ensure her drug screens were released to the GAL.

[9] On December 13, 2023, the parties appeared for a bifurcated final dissolution hearing on the child-related issues. On December 27, 2023, the trial court issued the Decree of Dissolution of Marriage, reserving all child-related issues for a separate order. On March 18, 2024, the trial court issued its Order on Custody, Parenting Time, and Support, which included the following relevant findings and conclusions:

25. ․ [Mother] consistently tested positive for benzodiazepines from July 2021 to August 2022. She did not have a valid, current prescription for benzodiazepines at that time. Father was not aware of Mother's use of benzodiazepines at that time.

26. During their initial separation, Mother often requested Father to talk to the boys to tell them that they had to go to school. Mother reported they often refused to go to school on her parenting time days. Mother also asked Father to keep the boys during some of her parenting time days because she hadn't slept for days after “stopping all my bipolar sh[*]t.” Mother's reference was regarding stopping medication that she had previously been prescribed after being diagnosed with bipolar disorder. Mother also told Father that she was planning to admit herself to the hospital because she couldn't deal with all the stress.

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32. Mother alleged that Father introduced her to illegal substances. If accurate, that is certainly unfortunate. However, this is a no fault divorce and the Court is concerned about substance use only so far as it impacts the children's best interests. Mother did not have any credible evidence that Father had a substance use disorder at the time of the trial.

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47. The GAL had spoken to Mother's suboxone treatment provider ․ about Mother's use of benzodiazepines along with the suboxone. The GAL was advised that Mother was in great danger of overdosing by mixing the two drugs. Mother's response to the GAL when she expressed her concerns about Mother overdosing, was that she and her parents had Narcan that they could use in the event she overdosed.

48. At this same time, Mother was continuing to test positive for benzodiazepines. Mother did not have a current, valid prescription for benzodiazepines.

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56. The GAL is concerned about Mother's lack of candor with her, the Court, and her treatment providers. The Court shares that concern.

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58. The children have acclimated well to being in Father's primary care and custody since the Court's Order in November.

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72. There is evidence of a disability. Namely, Mother has active substance use disorder and has been diagnosed with bipolar disorder.

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90. The parents do not agree to joint legal custody.

91. The parents are not willing and able to communicate and cooperate.

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94. The emotional environment at Mother's home is not currently conducive to joint legal custody due to the substance use disorder and her other mental health concerns.

Appellant's App. Vol. II at 19–26. Based on these findings and conclusions, among others, the trial court awarded Father sole legal custody of the minor children and primary physical of the minor children subject to Mother's parenting time, which was still to be supervised by at least one of her parents. This appeal ensued.¹

Discussion and Decision

The Trial Court Did Not Clearly Err in Determining Custody of the Minor Children

[10] Mother argues that the trial court erred in determining custody of the minor children. The trial court here entered findings and conclusions pursuant to Indiana Trial Rule 52, so we will “not set aside the findings or judgment unless clearly erroneous” and give “due regard ․ to the opportunity of the trial court to judge the credibility of the witnesses,” Ind. Trial Rule 52(A). “Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them.” Steele-Giri v. Steele, 51 N.E.3d 119, 125 (Ind. 2016) (quoting In re Paternity of Winkler, 725 N.E.2d 124, 126 (Ind. Ct. App. 2000)).

[11] Our review is also guided by the following considerations unique to family law cases:

[T]here is a well-established preference in Indiana “for granting latitude and deference to our trial judges in family law matters.” In re Marriage of Richardson, 622 N.E.2d 178 (Ind. 1993). Appellate courts “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.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)). “On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.” Id. “Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.” Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) (citations omitted).

Steele-Giri, 51 N.E.3d at 124. Furthermore, we accept as true any findings not challenged on appeal. See R.M. v. Ind. Dep't of Child Servs., 203 N.E.3d 559, 564 (Ind. Ct. App. 2023) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)).

[12] Notably, Father did not file a brief in this case, so we review to determine if Mother “has made a prima facie showing of reversible error.” Ferguson v. State, 40 N.E.3d 954, 957 (Ind. Ct. App. 2015) (citing Cox v. State, 780 N.E.2d 1150, 1162 (Ind. Ct. App. 2002)). “Prima facie means at first sight, on first appearance, or on the face of it.” Posso v. State, 180 N.E.3d 326, 336 (Ind. Ct. App. 2021) (quoting Vukovich v. Coleman, 789 N.E.2d 520, 524 n.4 (Ind. Ct. App. 2003)).

[13] Indiana Code section 31-17-2-8 provides that a trial court “shall determine custody and enter a custody order in accordance with the best interests of the child.” In making this determination, “there is no presumption favoring either parent,” and the court must “consider all relevant factors,” including, as relevant here, the mental and physical health of all individuals involved. Ind. Code § 31-17-2-8.

[14] Mother challenges the trial court's decision to award Father primary physical custody and sole legal custody of the minor children. We first address Mother's arguments regarding physical custody before turning to her arguments regarding legal custody.

 Physical Custody

[15] In challenging the trial court's decision to award Father primary physical custody of the minor children, Mother specifically argues that the trial court did not properly consider her allegations that Father has a history of substance abuse and domestic violence; she also contends that the trial court did not properly consider her “current stability and support system,” Appellant's Br. at 29. Despite Mother's assertions to the contrary, her arguments are merely requests for us to reweigh the evidence and reassess witness credibility, which we cannot do, see Steele-Giri, 51 N.E.3d at 124 (quoting Best, 941 N.E.2d at 502). For instance, Mother relies heavily on perceived inadequacies in the GAL's investigations concerning Father's alleged history of substance abuse and domestic violence. The credibility of and weight assigned to the GAL's investigations and conclusions regarding these allegations was solely within the trial court's discretion. See id. (quoting Kirk, 770 N.E.2d at 307). Mother also claims that she showed “great improvements in her stability and sobriety, since her arrest” in “the few months prior to the final hearing.” Appellant's Br. at 30. It was for the trial court to determine the significance of Mother's alleged improvements. See Steele-Giri, 51 N.E.3d at 124 (quoting Kirk, 770 N.E.2d at 307). On this record, we will not second guess the trial court's decisions on any of these matters. See id. (quoting Best, 941 N.E.2d at 502).

 Legal Custody

[16] Regarding her challenge to the trial court's decision to award Father sole legal custody of the minor children, Mother argues the trial court should have awarded the parties’ joint legal custody. In support, Mother asserts that the trial court did not properly consider that “sole legal custody will allow Father to exclude Mother from decision-making,” the parties’ inability to communicate does not necessitate an award of sole legal custody, Mother's mental health and substance abuse do “not impair joint legal custody obligations,” and she is “better equipped to meet” the minor children's needs. Appellant's Br. at 33.

[17] First, Mother's argument that Father having sole legal custody of the minor children will allow him to exclude Mother from decision-making is unpersuasive. Sole legal custody inherently means that one parent is excluded from making final decisions for the child. See I.C. § 31-9-2-67 (defining “joint legal custody” as the child's parents sharing authority and responsibility for decision making). To the extent Mother argues that at some point in the future Father may use his sole legal custody of the minor children to alienate them from Mother, this claim is not yet ripe for our review, see Morales v. Rust, 228 N.E.3d 1025, 1033–34 (Ind. 2024) (quoting Holcomb v. Bray, 187 N.E.3d 1268, 1287 (Ind. 2022)) (holding that a claim is ripe for adjudication if it “reflect[s] a ‘real or actual controversy, or at least the ripening seeds of controversy’ ” and “originate[s] from ‘actual facts,’ not ‘abstract possibilities’ ”), reh'g denied (Apr. 22, 2024), cert. denied, ––– S.Ct. ––––, 2024 WL 4426707 (U.S. Oct. 7, 2024).

[18] Second, Mother argues that although she and Father “may not currently be capable of effectively communicating and cooperating, ․ [s]imply being stressed out talking to the other parent does not automatically mean inability to communicate.” Appellant's Br. at 33. To determine whether joint legal custody is appropriate, the trial court must consider, among other factors, the parents’ “willingness and ability to communicate and cooperate in advancing the child's welfare.” Pilkington v. Pilkington, 227 N.E.3d 885, 897 (Ind. Ct. App. 2024) (citing Milcherska v. Hoerstman, 56 N.E.3d 634, 641 (Ind. Ct. App. 2016)), trans. not sought; see also I.C. § 31-17-2-15(2). In other words, “the trial court decides ‘whether the parents have the ability to work together for the best interests of their children.’ ” Pilkington, 227 N.E.3d at 897 (quoting Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind. Ct. App. 2004)).

[19] As demonstrated by her argument quoted above, Mother concedes that she and Father are not currently capable of communicating and cooperating to advance the minor children's welfare. Furthermore, the trial court found that in Mother's communications with Father, she “often becomes angry with Father,” she “often criticizes Father for things that occurred in the past,” she “often criticizes Father for ․ his current care of the children,” and she “calls Father names and curses at him frequently.” Appellant's App. Vol. II at 25. Mother does not dispute these findings, so we take them as true, see R.M., 203 N.E.3d at 564 (citing Madlem, 592 N.E.2d at 687).

[20] Third, Mother claims her substance abuse and mental health do not “impair joint legal custody obligations” because she “is improving in these areas and has the assistance of the maternal grandparents.” Appellant's Br. at 33. Again, it was for the trial court to determine the significance of Mother's alleged improvements. See Steele-Giri, 51 N.E.3d at 124 (quoting Kirk, 770 N.E.2d at 307). We will not step into the trial court's shoes and make such a determination on a cold record. See id. (quoting Kirk, 770 N.E.2d at 307).

[21] Fourth, Mother argues that she is “better equipped” than Father to care for the minor children. Appellant's Br. at 31. Mother points to her history of making medical and religious decisions for the minor children as well as Father's work schedule that she claims “is not conducive to taking the children to necessary medical appointments.” Id. at 33. Mother's argument is yet another request for us to reweigh the evidence and reassess witness credibility, which we cannot do, see Steele-Giri, 51 N.E.3d at 124 (quoting Best, 941 N.E.2d at 502). For instance, Mother's argument is contrary to the following findings entered by the trial court: “Mother was not having [the minor children] seen by a consistent pediatrician,” Appellant's App. Vol. II at 25; Mother had time to make appointments for the minor children because she did not work; “Father did attend appointments and school events when he was able to do so,” id. at 24; and “Father's schedule is somewhat flexible, and he has the option to work from home several days each week,” id. The trial court further found that “Mother has active substance use disorder and has been diagnosed with bipolar disorder.” Id. Mother does not challenge any of these findings, so we take them all as true, see R.M., 203 N.E.3d at 564 (citing Madlem, 592 N.E.2d at 687).

[22] Based on the foregoing, Mother has not made a prima facie showing of reversible error, so we cannot say the trial court clearly erred in awarding Father sole legal custody and primary physical custody of the minor children.² We therefore affirm the trial court on all issues raised.

[23] Affirmed.

FOOTNOTES

1.   Mother fails to support with citations to the record several statements of fact in her Argument, which is required by Indiana Appellate Rule 46(A)(8)(a). Mother also fails to include only relevant information in the Statement of Facts, which is required by Appellate Rule 46(A)(6), and to state those facts in accordance with the appropriate standard of review, which is required by Appellate Rule 46(A)(6)(b). Because this appeal concerns Mother's relationship with the minor children and because her noncompliance with Appellate Rule 46 does not substantially impede our review of her claims, we choose to address their merits. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015); In re M.I., 127 N.E.3d 1168, 1171 (Ind. 2019) (quoting Neal v. DeKalb Cnty. Div. of Fam. & Child., 796 N.E.2d 280, 285 (Ind. 2003)).

2.   Because we conclude that the trial court did not clearly err in determining custody, we do not address Mother's argument regarding the need to recalculate child support based on her belief that she would have more overnights with the minor children should we reverse the trial court's decision on physical custody.

Felix, Judge.

Pyle, J., and Weissmann, J., concur.