Souders v. Powell

148 N.E.3d 1098

In re the PATERNITY OF I.P. BY NEXT FRIEND Ashley SOUDERS (Mother), Appellant-Petitioner,

v.Brandon E. POWELL (Father), Appellee-Respondent.

Court of Appeals Case No. 19A-JP-2852

Court of Appeals of Indiana.

FILED May 13, 2020

Attorney for Appellant: Leanna Weissmann, Lawrenceburg, Indiana

Tavitas, Judge.

Case Summary

[1] Ashley Souders ("Mother") appeals the trial court's order granting legal and physical custody of I.P. (the "Child") to Brandon Powell ("Father"). We reverse and remand.

Issue

[2] The sole issue on appeal is whether the trial court abused its discretion by granting custody of the Child to Father.

Facts

[3] Mother and Father are the parents of the Child, born out of wedlock in February 2012 in Ohio. The same month, Father established paternity of the Child by way of a paternity affidavit in Ohio. The paternity affidavit's attached "Acknowledgement of Paternity Affidavit" includes the "Notice of Rights and Responsibilities and Due Process Safeguards," which states that Mother is the sole residential parent and legal custodian of the Child unless otherwise determined by court order. Appellant's App. Vol. II p. 10. Neither Mother nor Father ever petitioned any court for orders regarding custody, parenting time, or child support regarding the Child until the State of Indiana initiated a child support proceeding.¹

[4] Although Mother and Father never wed, they lived together with the Child at maternal grandfather's home for approximately one year after the Child's 2012 birth. Mother, Father, and the Child then moved to California in 2013 and lived in two different residences in California; however, Mother and Father decided to return to Indiana in November 2017 to be closer to family and to enroll the Child in Franklin County Schools.

[5] After moving back to Indiana, Mother and Father remained together for approximately one year in their home in Fayette County, where Father still resides. Mother and the Child moved out of Father's home in November 2018. Mother and the Child began living with maternal grandfather in Franklin County again.² The Child has lived with Mother since Mother left Father's home; however, in early 2019, the Child stayed with Father for a portion of time while Mother recovered from a car accident due to black ice, causing Mother serious injuries. Mother also spent some time living with Father so she could see the Child. Father testified the Child lived with Father for two months. Otherwise, the Child has resided with Mother. Father has regularly exercised parenting time with the Child every Wednesday night and every other weekend, pursuant to an informal agreement between Mother and Father. Father regularly drove the Child for a few months because Mother has been unable to drive.

[6] Mother applied for benefits for the Child through the State of Indiana. As a result, on May 13, 2019, the State of Indiana filed a Title IV-D action to seek a court order obligating Father to pay child support to Mother. Thereafter, on May 29, 2019, Father filed a petition for custody of the Child. Father's petition alleged that "it is in the best interest of the minor child that the primary care, custody and control be granted to Father due to his stable residence and employment," and that Father "should be granted the primary care, custody and control of said minor child, subject to reasonable parenting time with Mother." Appellant's App. Vol. II p. 18.

[7] The trial court held an evidentiary hearing on Father's petition for custody on September 5, 2019. At the start of the hearing, both parties acknowledged that court ordered custody has never been entered with regard to the Child. Mother's attorney also stated that Mother has "been the custodial parent up to this point." Tr. Vol. II p. 5. Father's attorney disclosed that Father was petitioning for custody because Mother intended to relocate and based on "some behaviors that were occurring earlier in the year." Id. Father testified that he is "the more stable parent to have custody." Id.

[8] At the time of the hearing, Father resided in Fayette County, and Mother resided in Franklin County with maternal grandfather. Father worked as a stagehand a minimum of four and a maximum of twelve days a month, mostly on weekends, earning $250.00 per day. Mother worked as a nursing assistant five days a week and every other weekend, earning $11.25 per hour.

[9] Father testified that he was requesting custody because of his concerns that: (1) Mother was arrested for OWI in Shelby County on January 15, 2019;³ (2) the following day, Mother was injured in a car accident; (3) Mother exhibited "signs of instability" for the Child, such as the Child not having a bedroom at maternal grandfather's home; and (4) Mother expressed interest in relocating, according to Father's testimony, to Greenwood or Indianapolis, but according to Father's petition, to Shelby County. Id. at 8. Father provided no specific details regarding the timeline of Mother's relocation, and the record is devoid of a notice to relocate or additional evidence that Mother intended to relocate. Father's testimony regarding Mother's relocation was very conclusory, without support or timelines. Father testified he would ensure the Child remained in Franklin County Schools even though Father does not live in Franklin County. Father testified that he would like to move to Franklin County "at some point," but Father did not elaborate on his future plans. Id. at 17.

[10] Additionally, Father testified that, although he works many weekends, he can meet the Child's needs on Monday through Friday, and he is "okay" with Mother having the Child every Wednesday, every other weekend, and weekends when Father is away. Id. at 11. Father did not provide testimony regarding the specific hours he works on the weekends or identify who cares for the Child while he is away. Father testified that he would be "okay" with sharing legal custody of the Child with Mother, but that Father wanted physical custody. Id. at 13.

[11] Regarding Father's financial support of the Child since Mother and the Child left Father's home, Father testified that he paid half the cost of a pair of shoes for the Child, provided transportation for the Child, and contributed to paying for the Child's school lunches.⁴ Father also testified that he was willing to pay expenses for the Child, but Mother had declined assistance in the past. After Mother asked for assistance, however, Father told Mother that he could not "keep giving [Mother] money" and that they would "have to get something put in place." Id. at 25.

[12] At the end of Father's presentation of the evidence, Mother moved for judgment on the evidence. Mother argued that Father failed to show "the current arrangement is unreasonable or that it's in the best interest of the child." Id. at 30. The trial court responded that, "without any further testimony, the Court would be inclined to grant [Father] custody." Id. Mother then testified in her case-in-chief.

[13] Mother testified that she has been the Child's primary custodian since leaving Father's home in November 2018 and that she has provided financial support for the Child with little help from Father. Mother also testified that, when she and Father were together, Father's primary responsibility was generating income for the family, whereas Mother's primary responsibility was to care for the Child. Mother alleged that Father's petition for custody was prompted by Father's unwillingness to pay child support. According to Mother, Mother and Father discussed Father's petition for custody, and Father told her he filed the petition because he did not want to pay child support and was "tired of paying for everybody all the time." Id. at 61. Mother testified she needed support because, when she left Father she had "nothing"; she "didn't work on anything for" herself when she and Father were together; and Father "made it impossible for [her] to work." Id. at 41. Mother also testified that she does not often ask Father for financial support because Mother and Father "don't communicate very well." Id. at 47.

[14] Mother further testified that: (1) the Child has his own room at maternal grandfather's home; (2) Mother intends to rent an apartment in Franklin County and move out of maternal grandfather's home when she is able to afford her own home⁵ ; (3) Mother's January accident was a result of black ice; (4) Mother pays maternal grandfather for rent when she can afford it and/or Mother helps maternal grandfather with his business; (5) Mother asked the State for a reduced school lunch expense this school year for the Child, and, accordingly, Father does not have this expense; (6) the Child has good grades in school and has been "surprisingly great" with his routine, tr. vol. II p. 59; and (7) according to the Child, the Child "usually" spends weekends with paternal grandmother when he is "supposed to" be with Father. Id. at 57.

[15] On November 5, 2019, the trial court granted Father's petition for custody without issuing findings or conclusions thereon. The trial court awarded Father the primary care, custody, and control of the Child and granted Mother reasonable parenting time. Mother now appeals.

Analysis

[16] Mother argues the trial court erred in awarding custody of the Child to Father. Trial courts have discretion in both initial custody and modification of custody determinations, and we review those determinations for an abuse of discretion. See In re Paternity of Snyder, 26 N.E.3d 996, 998 (Ind. Ct. App. 2015) ("We review custody modifications for an abuse of discretion, with a preference for granting latitude and deference to our trial judges in family law matters."); see also In re B.W., 17 N.E.3d 299, 307 (Ind. Ct. App. 2014) ("Child custody determinations fall squarely within the discretion of the trial court and will not be disturbed except for an abuse of discretion.").

[17] The trial court's order did not include any specific...