Justin Timothy Boss, Appellant-Respondent v. Carrie Kathryn Boss, Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] Justin Timothy Boss (“Father”) and Carrie Kathryn Boss (“Mother”) have joint legal custody of their son, S.B. (“Child”), and Mother has primary physical custody. Father filed a petition to modify custody and parenting time, which the trial court denied. On appeal, Father argues that this ruling is an abuse of discretion. We disagree and therefore affirm.

Facts and Procedural History

[2] Father and Mother were married in October 2019. One year later, Mother petitioned to dissolve the marriage. On December 3, 2020, the parties entered into a mediated settlement agreement. On December 8, the trial court approved the agreement, adopted it as an order of the court, and issued a dissolution decree. Child was born on December 12. Pursuant to the agreement, the parties had joint legal custody of Child, Mother had primary physical custody, and Father had several hours of parenting time three days per week. At that time, Mother resided in Wabash, and Father resided in Fort Wayne.

[3] In July 2021, Father filed a petition to modify custody and parenting time. In July 2022, after a hearing, the trial court did not modify custody but ordered that Father have parenting time “as the Parties shall agree” or, “[i]n the event an agreement can not be reached, ․ pursuant to the Indiana Parenting Time Guidelines for a Child 3 Years of Age and Older.” Appellant's App. Vol. 2 at 65. The court acknowledged that Child had not “attained the age of three” but believed that it was in Child's best interest “to expand visitation following that schedule at this time.” Id.

[4] Just over a year later, in August 2023, Father filed another petition to modify custody and parenting time. The trial court held a two-day hearing in February and March 2024. Father testified that he wanted sole legal custody and joint physical custody of Child. Tr. Vol. 2 at 151-52. Mother requested findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), and both parties submitted proposed orders.

[5] In May 2024, the trial court issued an order denying Father's petition that reads in pertinent part as follows:¹

6. On June 27, 2023, Father notified Mother through Our Family Wizard “OFW” that he and his wife had purchased a house in Wabash, Indiana and would be taking possession on July 28, 2023.

7. After the Prior Order, Father married Annie Boss. Annie has a four-year-old daughter who lives primarily with her. The two are expecting a child together, and it is anticipated that Father's wife will be a stay-at-home mother once the child is born.

8. Child is adjusted to Father's new home in Wabash. There are no concerns about Father's home environment. He enjoys a relationship with Father's wife and daughter, and there are no concerns about their interaction with Child.

9. On July 23, 2023[,] Mother notified Father that she had accepted a new job and would be working from home. She said she was listing her house for sale and moving in with her parents. She did both shortly thereafter, moving in with her parents before the house was sold. A few weeks after starting her virtual teaching job, she left that employment to be a stay-at-home mother.

10. That Father seems to have a double standard when it comes to parenting styles and communication. Testimony revealed multiple occasions where Father would complain about Mother's actions or communication styles, but then turn around and do the same or similar thing.

11. It is clear from the evidence presented that Child is comfortable and happy in the home Mother now shares with her parents. He has his own space in the home and has plenty of opportunities for activities at the home. Child is bonded with his grandparents. There are absolutely no concerns about the home or the grandparent[s’] involvement in Child's life.

12. According to all of the testimony, Child continues to be happy, healthy, and well-adjusted. There has been absolutely no evidence presented to indicate that Child has any needs that are not being met by either of his parents.

13. That both Parties are loving and fit parents, and both Parties’ homes are appropriate for a minor child. That both Parties and each only want what is best for the child, even though their ideas of what is best may differ.

․.

15. The party seeking modification of custody [under Indiana Code Section 31-17-2-21], bears the burden of demonstrating that modification is in the best interests of the child and there is [a] substantial change in one or more of the factors the court may consider under Ind. Code 31-17-2-8.․

․.

22. Father argues that there has been a change in the factors set forth in I.C. 31-17-2-21(a)(2) based upon his relocation to Wabash. He further argues that Mother's move to her parents’ home and change in employment status constitutes a change in the factors considered regarding custody.

․.

24. The Court finds that the changes made by Father, the noncustodial parent, are not sufficient to warrant a modification of custody.[2] Additionally, the changes made by Mother have been changes that are positive for Child. Mother has indicated sound reasoning for those changes in her life which were not motivated by Father's involvement with Child. The Court finds Mother's testimony to be credible regarding the time line of the changes in her employment and the reasons for those changes.

25. Child is thriving in his current home with Mother. He enjoyed a close and loving bond with all of the adults in that household. Mother is able to spend essentially all of her time with Child. There are absolutely no concerns about Child's well-being in his current circumstances. As such, the Court finds that the changes made by Mother do not warrant a modification of that custody.

26. The Guardian Ad Litem report recommended joint physical custody. Based upon the report and testimony of the Guardian Ad Litem, that opinion rests upon the fact that both Father and Mother are fit and proper parents. The Guardian Ad Litem opined that when a child has two fit and proper parents, the child should have as much time with each parent as possible. Neither the Guardian Ad Litem Report nor the testimony of the Guardian Ad Litem presented any issues or areas of concern regarding Child's well-being, development or care in Mother's primary physical custody. While the Court understands the recommendation of the Guardian Ad Litem, nothing in the report or testimony of the Guardian Ad Litem rises to the level of meeting the burden for a modification of custody and/or parenting time.

27. That there were several issues that were not fully investigated by the Guardian Ad Litem, further, the Guardian Ad Litem agreed that had she known some of the history and/or background of some of the parent's [sic] decisions, it may have changed her opinion and recommendations.

28. As the history of this case demonstrates, these parties have been involved in litigation (almost constantly) since prior to Child's birth. Litigation over custody and parenting time has been primarily initiated by Father. This is the second time that this Court has conducted extensive hearings on the issues of custody and parenting time in Child's short life. The constant cloud of litigation hanging over everyone's head is not conducive to communication and co-parenting. Continued litigation is not in Child's best interest. It is the Court's hope that moving forward, the parties will be able to co-parent without Court intervention.

29. That the Parties have an ongoing issue with communication. That even when using the Our Family Wizard application, those conversations are strained. The parties have been able to work out agreements regarding some additional parenting time (despite Father claiming in his testimony that Mother had never offered him any additional parenting time); an extended parenting time week for Father; and parenting time when Father was traveling for work during which Father's wife exercised visitation with Child. These are all positive indications that communication can improve and is improving.

30. That there was very little evidence provided to even hint at the fact that there has been a substantial change in one of the factors of I.C. 31-17-2-21, therefore the Court does not even get to the best interest evaluation.

31. Even if[ ] there has been a substantial change in one of the factors of I.C. 31-17-2-21, there has simply been no evidence presented to establish that a modification of custody and/or parenting time is in Child's best interests. It is clear that Father wants more time with Child. However, this Court is concerned with Child's best interests. Father has simply not met his burden to establish that Child's best interests require any modification of the current custody arrangement and parenting time schedule.

Appealed Order at 2-6.

[6] Father filed a motion to correct error, which the trial court denied. Father now appeals.

Discussion and Decision

[7] Father contends that the trial court erred in denying his petition. Pursuant to Indiana Code Section 31-17-2-21, a trial court may not modify a child custody order unless the modification is in the child's best interests and there is a substantial change in one or more of the factors enumerated in Indiana Code Section 31-17-2-8. Section 8 provides that the court shall consider the following factors: the age and sex of the child; the wishes of the child's parent or parents; the wishes of the child, with more consideration given if the child is at least fourteen years of age; the interaction and interrelationship of the child with the child's parents, sibling, and any other person who may significantly affect their best interests; the child's adjustment to their home, school, and community; the mental and physical health of all individuals involved; evidence of a pattern of domestic or family violence by either parent; evidence that the child has been cared for a by de facto custodian; and a designation in a power of attorney of the child's parent or de facto custodian. Ind. Code § 31-17-2-8. “The alleged change in circumstances is evaluated in the context of the child's environment, and the effect of the change on the child is what makes it either substantial or inconsequential.” Sanford v. Wilburn, 185 N.E.3d 451, 455 (Ind. Ct. App. 2022). “Even if there is a substantial change, the trial court still can only modify custody if it is in the child's best interests.” Id. (citing I.C. § 31-17-2-21(a)(1)).

[8] “The party seeking to modify custody bears the burden of demonstrating the existing custody should be altered.” Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016). “[T]his ‘more stringent standard’ is required to support a change in custody, as opposed to an initial custody determination[ ] where there is no presumption for either parent because ‘permanence and stability are considered best for the welfare and happiness of the child.’ ” Id. (quoting Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)). Thus, “there is a presumption in favor of maintaining the status quo[.]” Sanford, 185 N.E.3d at 455.

[9] “Additionally, there is a well-established preference in Indiana ‘for granting latitude and deference to our trial judges in family law matters.’ ” Steele-Giri, 51 N.E.3d at 124 (quoting In re Marriage of Richardson, 622 N.E.2d 178, 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.’ ” Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). We review custody modification rulings only for an abuse of discretion, and we will reverse only if the trial court's decision is clearly against the logic and effects of the facts and circumstances before it or the reasonable inferences drawn therefrom. McDaniel v. McDaniel, 150 N.E.3d 282, 288 (Ind. Ct. App. 2020), trans. denied. “[I]t 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.” Kirk, 770 N.E.2d at 307.

[10] When a trial court enters findings of fact and conclusions thereon pursuant to party's request under Trial Rule 52(A), “we review for clear error, employing a two-tiered standard of review.” M.G. v. S.K., 162 N.E.3d 544, 547 (Ind. Ct. App. 2020). “First, we must determine whether the evidence supports the trial court's findings of fact and second, we must determine whether those findings of fact support the trial court's conclusions thereon.” Id. at 547-48. “Findings are clearly erroneous only when the record leaves us with a firm conviction that a mistake has been made.” Id. at 548. We neither reweigh evidence nor reassess witness credibility, and we “consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment.” Id. at 547, 548.

[11] Father first asserts that the trial court erred in not finding a substantial change in Child's age, Father's “wishes” regarding the custody arrangements, and Father's relationship with Child. Appellant's Br. at 10. Regarding Child's age, Father observes that Child “was three, going on four, at the time of the 2024 hearings in the trial court” and that “[a]t the time of the original custody determination, [Child] was not even born.” Appellant's Br. at 9-10. This observation disregards that Father contractually agreed to the original custody arrangements, which he petitioned to modify before Child was even a year old, and that the court preemptively modified those arrangements to allow Father parenting time pursuant to the Guidelines for a child three years of age or older. As for Father's “wishes,” they had not changed substantially since he filed his first petition to modify custody, in which he requested sole legal custody and primary physical custody.³ And with respect to Father's relationship with Child, it is unsurprising that Father would become more involved as Child matures, and we will not second-guess the trial court's decision not to accord this factor substantial weight for purposes of Indiana Code Section 31-17-2-21.

[12] Father also asserts that the trial court's best interests determination is erroneous, based on the court's rejection of the guardian ad litem's (“GAL's”) recommendation for joint physical custody. Father acknowledges that a court is not obligated to accept a GAL's opinion regarding custody. See Appellant's Br. at 13 (citing Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct. App. 2000)). But Father claims that the court's “rejection of the GAL's recommendation here is harmful because there was no other evidence about what was in [Child's] best interests, save for arguably each party's wishes about his custody.” Id.

[13] On the contrary, the trial court essentially found that maintaining the status quo is in Child's best interests, due mainly to the parties’ “ongoing issue with communication.” Appealed Order at 5. And that issue is attributable in significant part to Father's litigiousness. Id. As Mother's counsel pointed out in cross-examining the GAL, an increase in Father's parenting time would “increase the obligation to communicate[,]” Tr. Vol. 2 at 34, which in turn would increase the potential to disrupt Child's current “happy, healthy, and well-adjusted” life. Appealed Order at 2. In sum, Father has failed to establish that the trial court abused its discretion in denying his petition to modify custody and parenting time. Therefore, we affirm.

[14] Affirmed.

FOOTNOTES

1.   We have replaced references to “Petitioner,” “Respondent,” and Child's given name with “Mother,” “Father,” and “Child” where appropriate.

2.   In finding 23, which appears to have been adopted from Mother's proposed order, the trial court stated,The burden remains on the non-custodial parent to prove the present custody arrangement is unreasonable or the change in custody is necessary for the child's welfare. [Elbert v. Elbert], 579 N.E.2d 102 (Ind. Ct. App. 1991). “The court in determining said child custody, shall make modification thereof only upon [a] showing of changed circumstances so substantial and continuing as to make the existing custody order unreasonable․.”Appealed Order at 4 (quoting, but not citing, Ind. Code § 31-1-11.5-22(d) (1993)). This statute, which was the predecessor to Indiana Code Section 31-17-2-21, was amended in 1994 to remove the unreasonableness requirement. Julie C. v. Andrew C., 924 N.E.2d 1249, 1258 (Ind. Ct. App. 2010). “Thus, a petitioner is no longer required to show that an existing custody order is unreasonable before a court will modify it.” Id. Father makes no argument in this regard, however, and because finding 23 is the only finding in which “unreasonable” is used, we consider the above excerpt harmless surplusage.

3.   We obtained a copy of Father's first petition from the Odyssey case management system.

Bailey, Judge.

Judges Vaidik and DeBoer concur. Vaidik, J., and DeBoer, J., concur.