MELLOW v. MELLOW (2025)

MEMORANDUM DECISION

[1] Jesse D'Mellow (“Father”) appeals the Pike Circuit Court's order granting Brandy D'Mellow's (“Mother's”) request to modify physical custody of the parties’ two children and to modify Father's parenting time. Father argues that the custody modification was not in the children's best interests.

[2] We affirm.

Facts and Procedural History

[3] Mother and Father have two minor children, Z.D., born in August 2018, and A.D., born in August 2021. Mother is a recruiter for the Army National Guard, and much of her recruiting takes place in high schools in southwest Indiana during school hours. Because Mother is a recruiter, she is not subject to military deployment. Father is disabled because he suffers from PTSD and anxiety, and he is unemployed. During the marriage, the parties lived in Fort Branch, Indiana.

[4] Mother moved to Petersburg, Indiana, in November 2023, and she filed a petition to dissolve the marriage on February 1, 2024. Shortly thereafter, Father moved to Henderson, Kentucky, which is in a different time zone than Mother's Petersburg residence.¹

[5] The parties executed a settlement agreement and decree of dissolution, which they filed with the trial court on April 2, 2024. On May 13, the parties appeared for a child support hearing, and, during the hearing, the parties agreed to amend the settlement agreement. Specifically, they agreed that the parties would share joint legal and physical custody of the minor children. They also agreed that “it is in the best interests of the minor child(ren) to follow a parenting time schedule that does NOT follow the Indiana Parenting Time Guidelines,” but each parent should have equal parenting time. Appellant's App. Vol. 2, p. 15.

[6] On June 10, Mother filed a verified petition for modification of parenting time, child support, and other related issues. In the petition, Mother alleged that there was a substantial and continuing change of circumstances warranting a modification of the parties’ settlement agreement concerning custody, parenting time, and child support. Id. at 26.

[7] The court held a hearing on the petition on August 5. Mother testified that, several months before the 2024-25 school year, Mother enrolled the children in a daycare/preschool in Jasper. Tr. p. 38. Mother stated that she had enrolled Z.D. in Jasper Consolidated Schools and that he was scheduled to begin school that week. Tr. p. 7. The drive to Z.D.’s school takes approximately thirty minutes from Mother's home. Mother stated that she and Father had previously agreed to enroll Z.D. in Jasper Consolidated Schools. Id. Mother does not live in the Jasper Consolidated Schools District but enrolled Z.D. in those schools because she believes the Jasper schools would provide the best education for the children. Mother also informed the court that the parties’ equal parenting time schedule would not be feasible once Z.D. started school because of the distance between Mother's and Father's homes and the fact that Father's residence is located in a different time zone. Id. at 14.

[8] Mother also testified that she is a public figure on social media and she posts to social media frequently. Id. at 16. Father submitted videos to the court that Mother had recorded and posted to social media while driving both with and without her children in the car. Id. at 16-17. Mother admitted to driving her vehicle at speeds exceeding 100 miles per hour, which she also posted about on social media.

[9] Father testified that he had moved to Henderson, Kentucky, in February 2024 with his fiancée and her two young children. He stated that, because he is unemployed, he has more flexibility in his schedule than Mother. He wanted to enroll Z.D. in the school system in Henderson. And Father testified that the children would not need to attend daycare if the court awarded him physical custody and Z.D. attended school in Henderson. Tr. p. 32. Finally, Father expressed concern about Mother driving with the children.

[10] On August 7, the trial court issued its order, which provided that it is in Z.D.’s best interests to attend school in the Greater Jasper Consolidated Schools District. The order also modified the parties’ settlement agreement and decree of dissolution to allow Father to enjoy parenting time at all times agreed to by the parties, but nothing less than what is set forth in the Indiana Parenting Time Guidelines. Father was also awarded additional parenting time with the children during the Jasper School Corporation's fall and spring breaks each year. The court also ordered Mother not to use “her cell phone or any other electronic device for purposes of social media posts or videos while driving with the children or either child in her automobile.” Appellant's App. p. 10.

[11] Father now appeals.

Discussion and Decision

[12] Father argues that the trial court abused its discretion when it modified the parties’ custody and parenting time agreement. Specifically, the court concluded that it is in Z.D.’s best interest to attend school at Jasper Consolidated Schools, and, therefore, the parties’ joint physical custody was modified to award Mother physical custody of the children.²

[13] We review custody modifications for abuse of discretion. Wilson v. Myers, 997 N.E.2d 338, 340 (Ind. 2013). And deference to trial courts is particularly important in family-law matters:

There is a well-established preference in Indiana for granting latitude and deference to our trial judges 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. 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. Appellate judges are not to reweigh the evidence nor reassess witness credibility, and the evidence should be viewed most favorably to the judgment.

Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (cleaned up). We will affirm if any evidence or legitimate inferences support the trial court's judgment. Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002). Lastly, we observe that neither party requested findings of fact and conclusions of law. See Tr. p. 43.

[14] Indiana Code section 31-17-2-21 provides that a trial court “may not modify a child custody order unless: (1) the modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under [Indiana Code section 31-17-2-8].” Indiana Code section 31-17-2-8 provides that the trial court is to consider several important factors, such as (1) the age and sex of the child, (2) the wishes of parents and the child, (3) the relationship of the child with family members, and (4) the mental and physical health of the family members, among other factors. Importantly, “[t]he party seeking to modify custody bears the burden of demonstrating the existing custody should be altered.” Steele-Giri, 51 N.E.3d at 124 (citing Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)). And “the court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child.” I.C. § 31-17-4-2; see also Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013) (quoting Marlow v. Marlow, 702 N.E.2d 733, 735 (Ind. Ct. App. 1998), trans. denied).

[15] Before the parties’ marriage was dissolved, Father moved to Henderson, Kentucky, which was a greater distance from Mother's home in Petersburg than Father's previous home in Fort Branch. Because the children were not yet school-aged, the parties were able to share physical custody. Given the distance between the parties’ homes and their locations in different time zones, the parties’ agreed that the physical custody arrangement became unworkable when it was time for Z.D. to attend kindergarten.

[16] Mother's employment as a national guard recruiter requires her presence in local area high schools. Based on her personal observations, Mother determined that Jasper Consolidated Schools would be the best school system for the children even though she does not reside in that school district. And several months prior to enrolling Z.D. in kindergarten, Mother had enrolled the children in a daycare/preschool in the Jasper Consolidated Schools District.

[17] In his brief, Father observes that Mother's home is a thirty-minute drive to Z.D.’s school, that he did not agree that Z.D. should be enrolled in Jasper Consolidated Schools, and that he believes it was in Z.D.’s best interests to be enrolled in the school district where Father resides because the school is close to Father's home. Appellant's Br. at 10. Father also directs our attention to Mother's admission that she was posting videos on social media while driving and has driven at speeds exceeding 100 miles per hour. For this reason, Father understandably has concerns about children's safety while they are in the car with Mother.³ Finally, Father disputes Mother's testimony concerning the flexibility of her work schedules and her involvement in the Jasper Consolidated Schools District.

[18] Father's arguments are simply a request to reweigh the evidence and the credibility of the witnesses. The trial court heard and considered this evidence before concluding that modification of the parties’ custody agreement was in Z.D.’s best interest. Moreover, while Father did not explicitly agree with Mother's proposal to enroll Z.D. in Jasper Consolidated Schools, he told Mother, “it didn't quite matter where they went to school. Because they have two (2) parents that love them very much.” Tr. p. 30.

[19] We agree with Mother that because of the distance between the parties’ homes and their location in different time zones, Z.D.’s enrollment in kindergarten is a substantial change in circumstances justifying modification of the parties’ shared physical custody agreement. And Father's argument that the custody modification is not in the children's best interests is merely a request to reweigh the evidence and the credibility of the witnesses, which our court will not do.⁴

[20] For all of these reasons, we affirm the trial court's order modifying custody of the parties’ children.⁵

[21] Affirmed.

FOOTNOTES

1.   Fort Branch, Indiana, where the parties lived before their separation, is in the same time zone as Henderson, Kentucky. But Mother moved to Petersburg approximately three to four months before Father relocated to Kentucky with his fiancée and her children.

2.   Mother argues that Father agreed to Z.D. attending Jasper schools if he could have visitation every other weekend and a mid-week visit; therefore, she claims that Father invited any error and is estopped from challenging the trial court's order. We do not agree with Mother's characterization of the record. Father was asked a hypothetical question about a potential outcome of the modification proceedings. Tr. Vol. 2, p. 37. When asked if he would be okay with the visitation arrangement set forth above if the court ordered the parties to enroll the children in Jasper schools, Father replied, “[i]f it went that way. Yes, ․ I would love ․ to see my kids anytime.” Id. Father did not agree to that parenting time schedule under all circumstances and in his testimony, he did not agree that Z.D. should be enrolled in Jasper schools.

3.   Mother testified that she would not create any more social media videos while she is driving even when the children are not in the car, and that she realized what she had done was “wrong.” Tr. p. 24.

4.   Father observes that the trial court's order does not expressly state that modification of custody is also in the parties’ younger child's best interest. As we noted above, the parties did not request findings of fact and conclusions of law. Moreover, we presume that trial courts know and follow the law. See Hecht v. Hecht, 142 N.E.3d 1022, 1031 (Ind. Ct. App. 2020). Absent a new substantial change in circumstances, the parties’ younger child will also be enrolled in school in a couple years. Implicit in the trial court's order modifying custody is the conclusion that it is in the children's best interests to be raised together in the same household and in the same school system. There is no evidence that separating the siblings would be in their best interest, and Father did not present any argument that the court should consider separate custody orders for the children.

5.   Father's parenting time was modified because of the change of custody. Father does not present any separate argument that the trial court abused its discretion when it modified his parenting time with the children.

Mathias, Judge.

Foley, J., and Felix, J., concur.