Kyle Bergstedt, Appellant-Respondent v. Ashley Bergstedt, Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] Kyle Bergstedt (“Father”) appeals the trial court's denial of his petition to modify custody and child support. On appeal, Father argues that: (1) the trial court abused its discretion by taking judicial notice of his current wife's prior dissolution matter; (2) the trial court erred by using Father's disability to deny Father's petition for modification of custody; and (3) the trial court erred when calculating child support owed by Father.

[2] We conclude that Father waived his argument regarding judicial notice and, waiver notwithstanding, any error was harmless. Further, the trial court's denial of Father's petition to modify custody was not clearly erroneous. The trial court's modification of child support, however, is not supported by the evidence or a written finding to explain the deviation. Accordingly, we affirm the trial court's denial of Father's petition to modify custody, but we reverse the child support order and remand with instructions for the trial court to either amend the child support order or enter written findings justifying a deviation.

Issues

[3] Father raises multiple issues, which we restate as:

I. Whether the trial court abused its discretion by taking judicial notice of a dissolution matter involving Father's current spouse.

II. Whether the trial court erred by denying Father's petition to modify custody.

III. Whether the trial court erred in calculating Father's child support.

Facts

[4] Father and Ashley Bergstedt (“Mother”) married in 2006 and had two children (“the Children”): V.B., who was born in 2010, and W.B., who was born in 2018. Father retired from the military in 2018.

[5] In 2019, Mother filed a petition for dissolution of marriage, and the parties’ marriage was dissolved later that year. Pursuant to the parties’ settlement agreement, which was approved by and incorporated into the trial court's order, the parties were awarded joint legal custody of the Children; Mother was awarded physical custody of the Children; and Father was awarded parenting time. The trial court ordered Father to pay child support of $176 per week. At that time, the parties agreed that, “[d]ue to Father's history of eye strain and migraines,” Father would “refrain from driving with the children if he is experiencing symptoms which inhibit his ability to do so.” Appellant's App. Vol. II p. 62.

[6] After the dissolution, Father relocated to his grandparents’ farm in his hometown in northwest Ohio. Father has a 100% disability rating by the Veterans’ Administration due to several different issues, including migraines, eye pain, depression, carpal tunnel syndrome, back pain, and a leg injury. Father is a part-time contractor and farmer. Father married Stepmother in 2020. Stepmother has a fourteen-year-old daughter and currently has only supervised parenting time with her child due to Stepmother's mental health issues and coaching her daughter to make false abuse allegations against the child's father.

[7] In May 2023, Father filed a petition to modify custody, parenting time, and child support. Father requested that he be awarded primary physical and legal custody of the Children. Father also requested the appointment of Kimberly Mattingly as guardian ad litem (“GAL”).

[8] After a January 2024 status conference, the trial court noted in the chronological case summary that it was setting a half-day remote final hearing. A virtual hearing was held on May 15, 2024.¹ Father, Mother, and the GAL testified at the hearing. Stepmother did not testify.

[9] Father testified at the hearing that V.B. enjoys farming, horses, and training dogs during his parenting time. Father disagreed with Mother's disciplinary methods regarding V.B.; claimed that he had been denied some parenting time with the Children; claimed that Mother did not consult him regarding schooling for the Children; claimed that Mother refused to transport V.B. to physical therapy for her jaw pain; and contended that Stepmother and the Children get along well.

[10] During cross-examination of Father, Mother sought to admit Petitioner's Exhibit 10, which was an October 2018 order in a dissolution action between Stepmother and her former husband. The order made findings regarding Stepmother's psychological evaluations, which noted multiple mental health diagnoses; the serious risk of harm to the child while in Stepmother's care; and Stepmother's false allegations of abuse against her former husband. Mother argued that the document was “identified and [ ] affirmed by a supporting witness.” Tr. Vol. II p. 54. Mother also asked the trial court to take judicial notice of the entire dissolution cause of action involving Stepmother. Father objected that judicial notice of “all of the contents of that file” was improper and that the 2018 order contained hearsay and was not “particularly relevant in this case.” Id. at 55. The trial court admitted Exhibit 10 over Father's objection and also took judicial notice of the dissolution cause of action.

[11] Father then noted that he would have the same objections to Exhibit 11 (a July 2021 order denying Stepmother's petition for modification of parenting time) and Exhibit 12 (Stepmother's October 2023 petition to modify parenting time). The trial court stated, “I will then show 11 and 12 will be admitted over objection” and noted that the trial court had taken judicial notice “of the existence of that Tippecanoe County Superior Court 1 case.” Id. at 58.

[12] The GAL testified and recommended that Father have primary physical custody of the Children. The GAL testified that V.B. has a “very strong desire” to live with Father and that V.B.’s relationship with Mother is strained. Tr. Vol. II p. 70. According to the GAL, V.B. perceives W.B. as the “favored child.” Id. at 71. The GAL testified that she considered Stepmother's situation in making her recommendation.

[13] Mother testified regarding disagreements between Mother and Father about the Children's schooling. Mother testified that Father has been telling V.B. since she was eight years old “that she gets to choose where she lives when she's fourteen.” Id. at 125. According to Mother, the Children have additional conflict with Mother after parenting time with Father. Mother also clarified the situation with V.B.’s physical therapy and her discipline of V.B.

[14] In July 2024, the trial court entered findings of fact and conclusions thereon and denied Father's petition for modification of custody but granted Father's petition for modification of child support.² The trial court found that: (1) the GAL's recommendation that Father should have physical custody of the Children was “unsupported”; (2) Mother's actions regarding discipline of V.B. and V.B.’s physical therapy were “reasonable”; and (3) Father's actions regarding the same were “duplicitous.” Appellant's App. Vol. II pp. 20, 22. Additionally, Stepmother's stability and suitability to be a more active step-parent given her supervised parenting time for her own child and Stepmother's mental health issues were concerns of the trial court.

[15] Regarding modification of custody, the trial court concluded: “While there have been changes in [V.B.’s] wishes and her relationship with [Mother], it is not in [V.B.’s] best interests to modify custody. Doing so would overly empower [V.B.] and almost certainly perpetuate even more strain in her relationship with her mother, possibly to the point of complete fracture.” Id. at 26. The trial court found that Father “has not met his burden of proof necessary to support a modification of the current custody order. His failure is apparent regarding [V.B.] but even more so regarding [W.B.].” Id. at 28. And Father failed to prove a “substantial change in the statutory factors that warrants a change in custody of either child.” Id. at 30.

[16] Regarding child support, the trial court granted Father's request for modification based on the finding that “[t]here have been substantial and continuing changes to both parties’ incomes and a major revision of the Indiana Child Support Guidelines.” Id. at 32. Weekly income of $1,400 was attributed to Father. Father was ordered to pay $214 per week in child support and an arrearage of $1,976. Father now appeals.

Discussion and Decision

I. Judicial Notice

[17] Father contends that the trial court abused its discretion by taking judicial notice of “ ‘facts’ found in Stepmother's prior litigation.” Appellant's Br. p. 20. “[W]e review a trial court's decision to take judicial notice of a matter, like other evidentiary decisions, for abuse of discretion.” Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016). A trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court. In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). “It is well-established that ‘errors in the admission of evidence are to be disregarded as harmless error unless they affect the substantial rights of a party.’ ” Id. (quoting Sibbing v. Cave, 922 N.E.2d 594, 598 (Ind. 2010)). “To determine whether the admission of evidence affected a party's substantial rights, we assess the probable impact of the evidence upon the finder of fact.” Id. “Likewise, reversible error cannot be predicated upon the erroneous admission of evidence that is merely cumulative of other evidence that has already been properly admitted.” Id.

[18] Father argues that the trial court abused its discretion by taking judicial notice of the facts in Stepmother's dissolution matter pursuant to Indiana Evidence Rule 201.³ Father, however, fails to acknowledge that the trial court separately admitted Exhibits 10, 11, and 12, which are orders and a pleading from Stepmother's dissolution matter, into evidence and also took judicial notice of Stepmother's dissolution matter. Father fails to make any argument regarding the trial court's admission of the Exhibits and focuses all of his argument on whether taking judicial notice of facts from the dissolution matter was appropriate. We conclude that Father has waived the issue for failure to make a cogent argument regarding the admission of the exhibits. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in appellant's brief be supported by cogent reasoning); Matter of A.C., 198 N.E.3d 1, 11 n.2 (Ind. Ct. App. 2022) (holding that the failure to present cogent argument waives the issue for appellate review), trans. denied, cert denied, 144 S. Ct. 1084 (2024).

[19] Waiver notwithstanding, even if we assume without deciding that the trial court abused its discretion by taking judicial notice of the trial court's findings in Stepmother's dissolution matter, Father has failed to demonstrate reversible error. The parties presented other evidence that was cumulative of evidence presented regarding Stepmother's dissolution matter. Father testified that Stepmother had supervised parenting time with her child and acknowledged that Stepmother had been seeing a psychologist or psychiatrist for “four years probably.” Tr. Vol. II p. 66. The GAL testified that she was “aware of [Stepmother's] custody case and issues.” Id. at 76. The GAL agreed that Stepmother had supervised parenting time of her daughter due to mental health issues and coaching her daughter to make false abuse allegations against the child's father. Accordingly, the evidence in Stepmother's dissolution matter was cumulative of other evidence presented during the hearing, and any error in taking judicial notice of the documents was harmless error.

II. Modification of Child Custody

[20] Father challenges the trial court's denial of his petition for modification of custody. “ ‘Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time.’ ” Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1141 (Ind. Ct. App. 2022) (quoting Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011)). “ ‘Thus enabled to assess credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.’ ” Id. (quoting Best, 941 N.E.2d at 502).

Additionally, 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.

Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (citations and internal quotations omitted).

[21] The trial court issued findings of fact and conclusions thereon pursuant to Mother's request under Indiana Trial Rule 52(A). Accordingly, we apply a two-tiered review. Wysocki v. Johnson, 18 N.E.3d 600, 603 (Ind. 2014). We “affirm when the evidence supports the findings, and when the findings support the judgment.” Id. We do not “set aside the findings or judgment unless [they are] clearly erroneous,” and we must give “due regard ․ to the opportunity of the trial court to judge the credibility of the witnesses.” Id. (citing Ind. Trial Rule 52(A)). “Findings of fact are clearly erroneous only when they have no factual support in the record.” Id. “[A] judgment is clearly erroneous if it applies the wrong legal standard to properly found facts.” Id. at 604. We review the trial court's legal conclusions de novo. Gittings v. Deal, 109 N.E.3d 963, 970 (Ind. 2018).

[22] Indiana Code Section 31-17-2-21(a) requires the party seeking to modify an existing custody order to prove that: (1) modification is in the best interests of the Child; and (2) there has been a substantial change in one or more of the factors set forth in Indiana Code Sections 31-17-2-8 or 31-17-2-8.5.⁴ The factors set forth in Indiana Code Section 31-17-2-8 (“Section 8”) 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.

[23] The trial court here specifically considered each of the Section 8 factors and found no substantial change. The trial court also found that modification was not in the Children's best interests. Father makes no argument regarding these factors or the Children's best interests. Rather, Father argues only that the trial court improperly used Father's disability “as prima facia (sic) evidence he should not be awarded custody.” Appellant's Br. p. 23 (italics added). Father relies upon In re Marriage of Lang, 668 N.E.2d 285 (Ind. Ct. App. 1996)⁵ , and Indiana Code Section 31-17-2-8.1(b), which provides:

A court in a custody proceeding, including a proceeding to modify custody:

(1) shall not discriminate against; and

(2) shall take into consideration the provision of reasonable accommodations to;

a parent who is a person with a disability, as provided under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131 through 42 U.S.C. 12134), and other applicable state and federal law.

[24] Father, however, misinterprets the trial court's order. The trial court's nineteen-page order made few references to Father's physical disability. The trial court noted that, “by agreement, [Father's] parenting time was subject to certain conditions due primarily to his physical health,” which refers to the parties’ agreement that, “[d]ue to Father's history of eye strain and migraines,” Father would “refrain from driving with the children if he is experiencing symptoms which inhibit his ability to do so.” Appellant's App. Vol. II pp. 14, 62. The trial court found that: “[Father] receives 100% veteran disability benefits. The disability rating is a compilation of several conditions, including vision challenges, migraines and depression.” Id. at 15. In discussing the GAL's report, the trial court found: “Both adults in [Father's] household have been found by either the Veterans Administration or court order to have significant physical health challenges. [The GAL] made almost no reference to these findings in her report.” Id. at 24. Finally, in discussing the Section 8 factors, regarding the mental and physical health of all individuals involved, the trial court found:

This factor strongly favors [Mother]. This Court is very concerned that [the GAL] made no mention of and was not concerned about [Stepmother's] mental and physical health. When [Father] is working or farming, [Stepmother] will be left to care for the children. The Court is similarly concerned that [Father] had no issue with making [Stepmother] the children's stepmother. [Father] receives 100% disability income for a variety of causes, including vision/migraine issues that impact his ability to drive and depression.

Id. at 30.

[25] Per the statutory Section 8 factors, the trial court was required to take into account the physical and mental health of all individuals involved. Nothing in the trial court's order, however, indicates that the trial court found Father's disability to be prima facie evidence that Father should not be awarded custody. In fact, the trial court's order clearly demonstrates more of a concern regarding Stepmother's mental health and supervised parenting time of her own child. Other than merely mentioning Father's disability, there is no indication the trial court considered this evidence in determining the substantial change factors or the best interests of the Children.

[26] Overall, Father's arguments on appeal are merely a request that we reweigh the evidence, which we cannot do. The trial court found that Father failed to meet his burden of demonstrating a substantial change in one of the Section 8 factors and that modification was in the Children's best interest. Given the evidence presented, we cannot say that the trial court clearly erred by denying Father's petition to modify custody.

III. Modification of Child Support

[27] Father also challenges the trial court's modification of child support. “ ‘[A] trial court's calculation of child support is presumptively valid.’ ” Bogner v. Bogner, 29 N.E.3d 733, 738 (Ind. 2015) (quoting Young v. Young, 891 N.E.2d 1045, 1047 (Ind. 2008)). “Upon the review of a modification order, ‘only evidence and reasonable inferences favorable to the judgment are considered.’ ” Id. (quoting Kinsey v. Kinsey, 640 N.E.2d 42, 44 (Ind. 1994)). The trial court's order will be set aside only if it is clearly erroneous. Id. “Clear error” is error that “leaves us with a definite and firm conviction that a mistake has been made.” Masters v. Masters, 43 N.E.3d 570, 575 (Ind. 2015).

[28] Father argues that the trial court's calculation of child support was based upon a determination that Father's income is $1,400 per week, but the only evidence in the record demonstrates that Father earns only $1,278.39 ⁶ per week. Father's income tax return showed annual income of $12,425, plus Father presented evidence that he receives $4,504.29 per month for his disability benefits, which results in a weekly income of $1,278.39.

[29] Mother's proposed child support worksheet listed Father's weekly income as $1,400 per week. Mother concedes that the “record is devoid of any evidence specifying or explaining Mother's mathematical calculation.” Appellee's Br. p. 21. Mother, however, argues that the difference could be accounted for by considering that Father pays no income tax on his disability income. Mother points out that the Child Support Guidelines assume an average tax factor of 21.88 percent, and “a trial court may choose to deviate from the guideline amount where the variance is substantiated by evidence at the support hearing.” Ind. Child Support Guideline 1, Commentary.

[30] Indiana Child Support Rule 2 provides: “In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.” If the trial court “concludes from the evidence in a particular case that the amount of the award reached through application of the guidelines would be unjust, the court shall enter a written finding articulating the factual circumstances supporting that conclusion.” Ind. Child Support Rule 3. Further, under the Commentary to Indiana Child Support Guideline 1:

[W]here taxes vary significantly from the assumed rate of 21.88 percent, a trial court may choose to deviate from the guideline amount where the variance is substantiated by evidence at the support hearing.

Deviation from the Rebuttable Presumption. The Child Support Rules create a rebuttable presumption that the amount of the award which would result from the application of the Child Support Guidelines is the correct amount of child support to be awarded. The creation of a rebuttable presumption recognizes the existence of factors or circumstances which are unable to be incorporated in the formulas used under the Guidelines. In other cases, strict adherence to the Guidelines could lead to harsh and unreasonable results. If a judge believes in a particular case application of the Guideline amount would be unreasonable, unjust or inappropriate, a finding must be made that sets forth the reason(s) supporting the deviation from the Guideline amount.

[31] Accordingly, although the trial court was permitted to deviate from the child support authorized under the Rules and Guidelines, the trial court was required to enter a written finding explaining the deviation. See In re Paternity of W.M.T., 180 N.E.3d 290, 302 (Ind. Ct. App. 2021) (“A trial court may deviate from the Guidelines only if it provides written findings to justify the deviation.”), trans. denied. The trial court here did not do so. Accordingly, we reverse the child support modification and remand to the trial court with instructions for the trial court to either: (1) amend the child support order to comport with the evidence and applicable Rules and Guidelines; or (2) enter written findings justifying a deviation therefrom.

Conclusion

[32] The trial court's denial of Father's petition to modify custody is not clearly erroneous. The trial court's modification of child support, however, is not supported by the evidence or a written finding explaining the deviation. Accordingly, we affirm the trial court's denial of Father's petition to modify custody, but we reverse the trial court's child support order. We remand with instructions for the trial court to either amend the child support order or to enter written findings justifying a deviation.

[33] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   There is no indication in the record regarding the reason for the remote hearing or that either party objected to the remote hearing. We note that Indiana Administrative Rule 14(C) provides: “A court must conduct all testimonial proceedings in person except that a court may conduct the proceedings remotely for all or some of the case participants for good cause shown or by agreement of the parties. Remote proceedings must comply with constitutional and statutory guarantees.” (emphasis added).

2.   Father argues that the trial court's order should be given additional scrutiny because the trial court adopted Mother's proposed order. “[W]hen a trial court accepts verbatim a party's proposed findings of fact and conclusions thereon, that practice ‘weakens our confidence as an appellate court that the findings are the result of considered judgment by the trial court.’ ” Staff Source, LLC v. Wallace, 143 N.E.3d 996, 1009 (Ind. Ct. App. 2020) (quoting Cnty. of Lake v. Pahl, 28 N.E.3d 1092, 1100 (Ind. Ct. App. 2015), trans. denied). On the other hand, “[i]t is not uncommon or per se improper for a trial court to enter findings that are verbatim reproductions of submissions by the prevailing party.” Id. “Although we by no means encourage the wholesale adoption of a party's proposed findings and conclusions, the critical inquiry is whether such findings, as adopted by the court, are clearly erroneous.” Id.

3.   Evidence Rule 201 provides, in part:(a) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice:(1) a fact that:(A) is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction, or(B) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.(2) the existence of:* * * * *(C) records of a court of this state.(b) Kinds of Laws That May Be Judicially Noticed. A court may judicially notice a law, which includes:* * * * *(5) records of a court of this state[.]

4.   Indiana Code Section 31-17-2-8.5 addresses situations involving a de facto custodian, and this statute does not apply here.

5.   Based on Lang, our Courts have held it is “impermissible for a court to rely on a parent's physical disability as prima facie evidence of the person's unfitness as a parent or of probable detriment to the child.” Clark v. Madden, 725 N.E.2d 100, 105 (Ind. Ct. App. 2000) (internal quotation omitted).

6.   Father concedes that his proposed child support worksheet erroneously showed a weekly gross income of $1,282.60.

Tavitas, Judge.

Chief Judge Altice and Judge Brown concur. Altice, C.J., and Brown, J., concur.