Bethany Zarse, Appellant-Respondent v. Brock Zarse, Appellee-Petitioner (2025)

Statement of the Case

[1] Brock Zarse (“Father”) filed for the dissolution of his marriage to Bethany Zarse (“Mother”); the couple had one child together, D.Z. (“Child”). The trial court entered a dissolution decree, establishing joint legal custody of Child and awarding primary physical custody to Father. Mother appeals and presents two issues for our review:

1. Whether the evidence supports certain findings made by the trial court; and

2. Whether the findings support the trial court's conclusion that primary custody to Father was in Child's best interests.

[2] We affirm.

Facts and Procedural History

[3] Mother and Father married in 2011 and lived together in Monticello, Indiana; Child was born in 2016. On April 12, 2022, Father petitioned for dissolution. On July 25, the parties entered an agreed provisional order, giving exclusive possession of the marital residence to Father; determining that the parties shall have joint legal custody of Child; awarding primary physical custody of Child to Mother; and establishing parenting time for Father.

[4] Mother and Child moved four times after the couple separated. First, they moved in with Mother's sister Rebekah at her house in Brownsburg, Indiana where they stayed for “a couple months.” Tr. Vol. II at 205. Rebekah's home became the pick-up and drop-off location when Father would exercise parenting time. Second, Mother and Child moved to Anderson, Indiana to live with Mother's new boyfriend Adam where they stayed for “two to three months.” Id. at 206. Third, after Mother broke up with Adam, Mother and Child moved into a hotel for a few days with Mother's new boyfriend Keith. Fourth, Mother, Child, and Keith moved into an apartment together in Noblesville, Indiana. Although Mother had moved from Brownsburg, Rebekah's home remained the pick-up and drop-off location.

[5] While Mother and Child lived in Brownsburg, Child started attending school in the Brownsburg school district, using Rebekah's address for registration. Even after Mother and Child moved to Anderson and then Noblesville, Child continued to attend school in Brownsburg and Mother continued to use Rebekah's address for registration. Because Child was living outside of the Brownsburg school district, Child had an approximately 45-minute commute to school and was at risk of being expelled because the address had not been updated. Based on these circumstances, on August 4, 2023, Father filed an emergency motion to amend the provisional order, seeking to gain physical custody of Child and enroll Child at a school in Monticello. On August 10, after a hearing on the issue, the trial court issued an order denying Father's motion, ordering Child to remain in school in Brownsburg and requiring Mother to update Child's registration paperwork with the Brownsburg school district.

[6] Sometime in late 2023 or early 2024, Child started seeing therapist Crysty Huffman. Previously, Mother and Father had agreed to take Child to therapy and decide on a therapist together. However, Mother chose Huffman as a therapist without consulting Father. During Child's therapy sessions, Huffman noted that Mother's frequent relocations caused anxiety for Child.

[7] Earlier in the proceedings, Luisa White had been appointed as the Guardian ad Litem (“GAL”) for Child. Throughout the dissolution process, White had contact with Father, Mother, Rebekah, and Keith. In early 2024, two weeks before the final hearing, Rebekah called White to say that Mother and Keith had started making allegations that she (Rebekah) had been “smoking weed.” Tr. Vol. II at 61. Rebekah believed that Mother and Keith were trying to retaliate against her because she had expressed concerns about Keith. Specifically, Rebekah believed that Keith used drugs and was “in a biker gang.” Appellant's App. Vol. II at 71. As a result of these accusations, Rebekah decided “she didn't want anything to do with” Mother and stopped allowing Mother to use her house as a pick-up and drop-off location for Child. Tr. Vol. II at 55.

[8] The trial court held a bifurcated final hearing on January 29 and April 24, 2024. A few days before the second hearing, Mother, Keith, and Child moved to a house in Noblesville, and Mother sent White documentation claiming that Child would be enrolled in a Noblesville school in the fall of 2024. At the second day of the hearing, Mother claimed that she never sent that documentation to White and that Child would remain in school in Brownsburg. On June 4, 2024, the trial court entered a decree dissolving the marriage, awarding the parties joint legal custody of Child, and awarding primary custody of Child to Father subject to Mother's parenting time. This appeal ensued.

Discussion and Decision

Standard of Review

[9] Mother claims that the trial court erred by awarding primary physical custody to Father. Here, the trial court sua sponte issued findings of fact and conclusions of law, so we will set aside the trial court's decision only if it is clearly erroneous. Roetter v. Roetter, 182 N.E.3d 221, 225 (Ind. 2022) (quoting Dunson v. Dunson, 769 N.E.2d 1120, 1123 (Ind. 2002)). Thus, “we determine whether the evidence supports the findings, and second, whether the findings support the judgment.” Perrill v. Perrill, 126 N.E.3d 834, 839 (Ind. Ct. App. 2019) (quoting Carmer v. Carmer, 45 N.E.3d 512, 516–17 (Ind. Ct. App. 2015)). “Issues not covered by the findings are reviewed under the general judgment standard, which means that, as a reviewing court, we should affirm based on any legal theory that is supported by the evidence.” Boucher v. Doyle, 228 N.E.3d 520, 524 (Ind. Ct. App. 2024) (citing Kakollu v. Vadlamudi, 175 N.E.3d 287, 295 (Ind. Ct. App. 2021)), trans. not sought. 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)).

[10] Further, we show great deference to the trial court's decision in family law matters:

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 v. Steele, 51 N.E.3d 119, 124 (Ind. 2016).

[11] We first address Mother's arguments that certain findings made by the trial court are unsupported by the record. Next, we address Mother's claim that the findings do not support the conclusion that primary physical with Father is in Child's best interests.

1. The Evidence Supports the Trial Court's Findings

[12] Mother claims that the record does not support some of the trial court's findings. “Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them.” Steele-Giri, 51 N.E.3d at 125 (quoting In re Paternity of Winkler, 725 N.E.2d 124, 126 (Ind. Ct. App. 2000)). Mother claims that the evidence fails to support the following findings:

19. That minor Child interacts well and has a great relationship with her Father. Minor Child interacts well and has a great relationship with Mother. Mother's actions of instability of housing has caused some anxiety for the minor Child, per her therapist. The minor Child has demonstrated emotional and mental stress due to the constant changes in her life, more directly the constant moving and traveling. That the minor Child had to interact with different people/men in the times leading up to the final hearing. Mother abruptly moved out of one relationship and residence, into a hotel room (of which introduced a new adult male) whom all slept overnight in this hotel room for two nights, and then moved into an apartment. The Mother, Child, and Mother's companion then moved into a different residence again.

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22. That minor Child has adjusted to Father's residence and community. The minor Child has an inability to adjust to communities with her Mother, as she has moved around repeatedly. Minor Child has adjusted to her school, but wishes to come back to her Monticello school and residence.

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25. That this Court specifically takes note of the following items, but not limited to:

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c. Mother and her choosing of a medical professional (Child's therapist) without appropriate discussion with Father.

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h. Mother's repeated enrollment issues with Brownsburg School Corporation, using different residence rules for enrollment, failing to update current addresses with the school, and ultimately landing in a residence outside of minor Child's school district, which makes for a lengthy commute for minor Child to attend school.

i. Mother and her timing of abruptly stopping the relationship with Mother's sister and her relationship with her current significant other, Keith.

Appellant's App. Vol. II at 222–23. We address each challenged finding in turn.

a. Mother's Instability Caused Anxiety for Child

[13] Mother claims that the record does not support the trial court's finding that her instability caused anxiety for Child. However, there is significant evidence that Mother's conduct and lifestyle have resulted in anxiety for Child. During the pendency of the dissolution, Mother moved with Child on multiple occasions, introducing Child to multiple romantic partners in the process. GAL White testified that the most recent move had caused some anxiety for Child. Specifically, when Father had asked Child how she was doing in the new house, Child “started crying and told [Father] she wasn't allowed to tell him about the move.” Tr. Vol. II at 107.

[14] Mother does not claim that the trial court incorrectly found that she moved between multiple residences and relationships throughout the dissolution. Rather, Mother argues that the trial court “gave unusual significance to Mother's residences and relationships during the first nine (9) months of the dissolution” and that “Father's choices also contributed to Child's anxiety in the early months of the dissolution.” Appellant's Br. at 18. These arguments are requests for us to reweigh the evidence, which we will not do, see Steele-Giri, 51 N.E.3d at 124.

b. Child Adjusted to Father's Living Situation and Community

[15] Mother also claims the record does not support the trial court's finding that Child had adjusted well to Father's home while having difficulty adjusting to Mother's home. White testified that Child had developed a “community connection” while living with Father. Tr. Vol. II at 53. There, Child had positive relationships with Father's parents as well as Father's girlfriend and her child. Ultimately, White believed that Child would “thrive” while living with Father. Id. at 62. Additionally, Father testified that both he and Mother have extended family that live near him and Child had started going to a church in the community.

[16] Conversely, White expressed concern about the possibility of Child staying primarily with Mother. Specifically, living with Mother would require Child to go to school in Brownsburg while living in Noblesville. The distance would pose a difficulty in Child's ability to participate in after-school activities and build relationships with other children. Additionally, Mother provided inconsistent evidence about what school Child would be attending if she were awarded primary physical custody. Mother sent White documentation about Child attending school in Noblesville in 2024, but then later testified that she intended to keep Child in school in Brownsburg, claiming she never sent the documentation. On appeal, Mother asks us to focus on the fact that Child is “a friendly and social person who could easily adjust and make friends in new areas.” Appellant's Br. at 19. It was for the trial court to decide the significance of these factors, and we will not step into the shoes of the trial court to make this determination. See Steele-Giri, 51 N.E.3d at 124.

c. Mother Chose a Therapist for Child Without Proper Consultation with Father

[17] Mother claims the evidence does not support the trial court's finding that she chose Huffman as Child's therapist without involving Father in the selection. However, both Father and White testified that Mother chose Huffman without discussing the choice with Father. Instead of pointing us to contrary evidence, Mother asks us to focus on “the fact that it was Mother who identified Child's anxiety and sought to obtain therapeutic assistance for her” as well as Father's alleged failure to object to her selection of Huffman. Appellant's Br. at 20. These are merely requests for us to reweigh the evidence, which we will not do, see Steele-Giri, 51 N.E.3d at 124.

d. Mother Caused Issues with Child's School Enrollment

[18] Mother contends that the record does not support the trial court's finding that she had enrollment issues with Child's school in Brownsburg. The record shows that Mother initially used Rebekah's address to enroll Child in the Brownsburg school system. Mother moved out of district after the initial enrollment but never updated her address with the Brownsburg school district, which put Child at risk of being expelled. Additionally, Mother's moves resulted in a 45-minute commute to school.

[19] Mother points us to the trial court's August 10, 2023, order denying Father's request to amend the provisional order. There, the trial court ordered Child to continue attending school in Brownsburg. However, the order also requires Mother to “update Child's necessary registration paperwork with the Brownsburg School Corporation,” Appellant's App. Vol. II at 157, which it appears Mother failed to do. Thus, the trial court's finding is supported by the evidence.

e. Mother's Relationship with Keith Affected Her Relationship with Rebekah

[20] Lastly, Mother challenges the trial court's finding concerning her sister Rebekah and Keith. The record shows that Mother's relationship with Keith had a negative effect on her relationship with Rebekah. When Mother and Father separated, Rebekah provided support to the entire family by letting Mother and Child move into her house, allowing her home to be the pick-up and drop-off point for visitation exchanges and acting as a “healthy kind of mediator” between Mother and Father, Tr. Vol. II at 54.

[21] However, this relationship became strained after Mother started dating Keith. Rebekah had “expressed concern about Keith's temperament,” worrying that he would “become aggressive suddenly.” Appellant's App. Vol. II at 71. Additionally, she believed that “Keith is into cocaine, is a heavy drinker and ․ he was in a biker gang.” Id. Based on these concerns, Rebekah believed that Mother and Keith started making accusations that she smoked “weed” because they wanted to “intimidate[ ] her and retaliate[ ] against her.” Tr. Vol. II at 61. Due to these accusations, Rebekah stopped allowing the couple to use her house as an exchange location and “she didn't want anything to do with [Mother].” Id. at 55. On appeal, Mother argues that it was her decision to stop using her sister's home as an exchange location because of Rebekah's alleged “flagrant marijuana use.” Appellant's Br. at 23. Additionally, Mother claims that the concerns that Rebekah had about Keith were based on “hearsay innuendo.” Id. at 24. Mother's argument is a request for us to reweigh the evidence, which we cannot do, see Steele-Giri, 51 N.E.3d at 124.

2. The Findings Support the Conclusion that Primary Physical Custody for Father Is in the Best Interests of Child

[22] Mother claims that the trial court erred by concluding that primary physical custody with Father was in Child's best interests. 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 child's adjustment to home, school, and community. Ind. Code § 31-17-2-8.

[23] Mother's argument amounts to her claim that she is “undisputably the most stable consistent presence in the Child's life.” Appellant's Br. at 27. Notably, Mother's argument regarding the custody determination does not include citations to any legal authority. Instead, Mother points to evidence in the record that purports to paint her parenting in a positive light, asking us to reweigh the evidence. For example, Mother asks us to consider that she has recently moved into a “larger, nicer home” and has “maintained the same relationship for more than a year with her fiancé.” Id. In contrast, the trial court found that the instability of Mother's living situation caused stress to Child while Child adjusted well to Father's home and community, and we will not second guess the trial court's determinations on these matters, see Steele-Giri, 51 N.E.3d at 124.

Conclusion

[24] In sum, the evidence supports Mother's challenged findings, and the findings support the trial court's conclusion that primary physical custody of Child with Father was in the best interests of Child. We conclude that the trial court's decision to award Father primary physical custody of Child was not clearly erroneous, and we affirm that decision.

[25] Affirmed.

Felix, Judge.

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