Pursuant to Ind.Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEY FOR APPELLEE:

BRIAN S. MOORE JONATHAN R. DEENIK

Indianapolis, Indiana Cross, Pennamped, Woolsey & Glazier, P.C.

Carmel, Indiana

IN THE

COURT OF APPEALS OF INDIANA

BRIAN S. MOORE, )

)

Appellant, )

)

vs. ) No. 49A04-1308-DR-401

)

KRISTY L. MOORE, )

)

Appellee. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Robert R. Altice, Jr., Judge

Cause No. 49D05-0810-DR-44790

May 9, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
2

Father, pro se, appeals an order modifying custody and support. He presents a number 

of issues, which we consolidate and restate as follows: 

1. Did the trial court err by modifying the existing custody order?

2. Did the trial court abuse its discretion when it imputed income to Father?

3. Did the trial court err by granting Maternal Grandmother unrestricted 

access to the children?

4. Does the portion of the order addressing extra-curricular activities need 

clarification?

We affirm in part, reverse in part, and remand.

Mother and Father’s thirteen-year marriage was dissolved in December 2009, with all 

matters settled by agreement. With respect to their two children,1the parties agreed to joint 

legal and physical custody. Father did not have equal parenting time with the children, but 

the parties agreed to work toward that with their parenting coordinator, Dr. John Ehrmann.2 

The parties agreed to follow Dr. Ehrmann’s guidance regarding the process of increasing 

Father’s parenting time and to submit to Dr. Ehrmann any disputes relating to legal custody 

matters. The agreement, however, expressly provided that neither parent waived the right to 

present any “reasonable dispute” to the court if they are “unwilling or unable to follow Dr. 

Ehrmann’s direction because they do not believe it is in the Children’s best interests”. 

Appellant’s Appendix at 43.

At all relevant times, Father remained in the marital residence in Indianapolis, and 

 

1

 Born August 20, 2004 and July 17, 2006.

2

 They needed Dr. Ehrmann’s assistance due to substantial disagreements regarding what was in their

children’s best interests.
3

Mother lived in Pendleton, which was about thirty minutes away. The parties enrolled the 

children in Cornerstone Baptist Academy, a private school on the northeast side of 

Indianapolis, for the 2010-2011 academic year. The school’s location was convenient for 

both parents, as Mother worked nearby as an IPS teacher. The parties agreed to share the 

cost of the private education, but Father fell behind on his share.

Shortly after the dissolution, in the summer of 2010, Father ceased making child 

support payments. Father also had a period of about eight months in 2010 when he was not 

on speaking terms with Dr. Ehrmann and refused to pay the parenting coordinator’s fees. Dr. 

Ehrmann would not continue working with them until Father brought the balance current. As 

a result, Mother filed a petition to modify custody on July 21, 2010, seeking sole legal and 

physical custody.3 After a change of judge, the parties were ordered to mediation, which 

proved unsuccessful.

On April 14, 2011, Mother filed a motion for rule to show cause based upon Father’s 

non-payment of support and his share of medical expenses. All pending matters were set for 

hearing on September 19, 2011. In the meantime, Father’s conflict with Dr. Ehrmann 

temporarily subsided by the end of 2010, and his parenting time was stepped up to about 

equal time by July 2011. 

 

3

 In the petition, Mother noted among other things: “Without the intervention and recommendations of the 

P.C. the parties lack the specificity and clarity regarding parenting time orders necessary to resolve their ongoing disputes. There is now significant conflict between the parties as it relates to the minor children and 

Father’s parenting time.” Id. at 56.
4

Shortly before the scheduled hearing, Father filed a pro-se petition seeking 

modification of the existing custody and support order, along with a motion for rule to show 

cause. Among other things, Father sought modification of the order to reflect their equal 

parenting time, addition of language requiring the children to remain in a school agreed upon 

by the parties, and modification of support based upon “current income levels and equal 

parenting time.” Id. at 65. Father asked the court to order that Maternal Grandmother4 not 

be permitted to “watch the children for a period of more than approximately 10 minutes 

unless another adult is present constantly.” Id. at 65-66.

An evidentiary hearing was held on September 19, 2011, regarding all pending 

matters. Mother argued that she should have legal and physical custody of the children. She 

testified regarding the condition of Father’s home, his volatile and inflexible nature, the 

difficulties with the parenting coordinator, her desire to enroll the children in public school, 

Father’s lack of stable income, and Father’s non-payment of support. Father acknowledged 

that he had a substantial arrearage. Father indicated that he had worked “very little” since the 

divorce and had spent $85,000 in attorney fees. Transcript from Court Room 12 at 115. He 

stated that he had lacked motivation to work and that the construction market had declined, 

resulting in no income in 2010 and only a few small remodeling jobs in 2011.5 Father 

testified that he was able to stay in his home because his mother purchased it after the 

 

4

 Father alleged that Maternal Grandmother had psychologically abused both children, physically abused one 

of the children, and sought medical treatment for both children without parental consent.

5

 Father has an undergraduate degree from Butler and a MBA from Indiana University. He has worked as an 

independent contractor, however, since before the marriage. 
5

dissolution and “she’s not demanding payments right now.” Id. at 117. Father’s mother also 

helped him with other expenses.

At the end of the September 2011 hearing, the trial court concluded that neither party 

had presented sufficient evidence for the court to “turn upside down a five and seven year 

old’s lives and determine where they’re going to go to school and where they’re going to 

move to.” Id. at 166. The court continued:

But I can tell you I have some significant concerns about what’s going on in 

these kids’ lives. I have concerns about the living arrangements that are taking 

place at Father’s residence. I have a concern about the distance between where 

these parties live. I have great concern about the fact that Father has not had 

any stable employment since 2008[6]and that private school is not a realistic 

option; they cannot afford it. Their inability to communicate causes me 

concerns. I want to appoint a Guardian ad Litem and I want to have the 

Domestic Counseling Relations Bureau do an evaluation.

Id. Accordingly, the trial court continued the hearing.

The trial court conducted a brief hearing on June 13, 2012 regarding summer 

parenting time and vaccinations. At this hearing, Father testified that he had been employed 

to maintain an office building and worked twenty to over forty hours per week. He also had 

other independent jobs as a contractor. Being a teacher, Mother did not work during the 

summer. Accordingly, the parties and the court agreed that Father would offer Mother 

additional parenting time while he was working. With respect to vaccinations, the court 

ordered that Mother and Father alternate taking the children to the doctor each year, with 

Mother starting in 2012.

 

6

 The court noted that in its view, Father had “not made really any effort to get a job and to be employed.” Id. 

at 167.
6

Another interim hearing took place on August 22, 2012 regarding which school the 

children would attend. Father wanted the children to continue at Cornerstone, and Mother 

had recently enrolled them in a public school in Pendleton. Mother testified that in addition 

to not being affordable, she had been transferred to another IPS school that was not near 

Cornerstone. The GAL testified that, based upon financial considerations and location, the 

children should attend Pendleton Elementary. At the conclusion of the hearing, the court 

reprimanded the parents for their continued inability to communicate and then found Mother 

in contempt for enrolling the children in Pendleton Elementary before the hearing. The court 

took the matter of punishment under advisement.7 Finally, the court ordered that the children 

attend Pendleton Elementary, which necessitated a modification of parenting time. The court 

ordered that Father have the children every weekend from Friday after school until he 

dropped them off at school Monday morning. Father also had the children overnight on 

alternating Mondays.

The previously continued evidentiary hearing, which began in September 2011, 

recommenced on February 5, 2013, after the custody evaluation and the GAL’s report had 

been filed with the court. The custody evaluator, Robin Pannell, testified regarding Father’s 

obsessive compulsive and narcissistic personality disorders and their effect on his ability to 

co-parent. Pannell opined that joint legal and physical custody was not workable and 

recommended that Mother have custody with Father having parenting time pursuant to the 

Indiana Parenting Time Guidelines (the Guidelines). In his report, the GAL made the same 

 

7

 At a subsequent hearing, Father agreed that Mother should not be punished for this contempt.
7

recommendation. During the GAL’s testimony, the hearing was continued.

The trial judge, Heather Welch, sua sponte disqualified and recused herself from the 

case on February 8, 2013. The reason for this action is not apparent on the record before us. 

The case was promptly transferred to Robert Altice, Jr., as special judge.

The final day of this lengthy modification hearing was April 5, 2013. Several 

witnesses were called, including Father. During his testimony, Father indicated that he liked 

the current physical custody arrangement, as set out in the August 2012 order. Father 

proposed, however, that the court modify the custody arrangement and grant Mother one 

weekend a month (instead of him having every weekend during the school year). With 

respect to his weekly gross income, Father testified that $100 was the “best [figure] he could 

come up with right now”. Transcript from Court Room Five at 216. Father presented no 

evidence in support of his “best guess[]”. Id. Eight months earlier at the August 2012 

hearing, however, Father testified that he was making between $400 and $500 per week. 

After the hearing, both parties filed proposed findings with the court. Mother sought 

legal and physical custody of the children with Father receiving parenting time pursuant to 

the Guidelines. Father argued, on the other hand, that joint physical and legal custody should 

continue with a modification of parenting time. Pursuant to his proposed modification, 

Father would have the children during the school year for three weekends per month (from 

Friday evening until Monday morning) and overnight on the Monday following Mother’s 

weekend.

The trial court issued its order on June 6, 2013, denying Mother’s request for sole 
8

physical and legal custody. The court modified parenting time during the school year as 

follows: “Father shall have the children every weekend except one during the month, from 

Friday at 6:00 o’clock p.m. until Sunday at 6:00 o’clock p.m. ... Father shall also have the 

children for a mid-week parenting time each week consisting of no more than four hours.” 

Appellant’s Appendix at 25. Among other things, the court ordered that the maternal 

grandmother could care for the children without restriction, Father was under-employed and 

capable of earing at least $961.54 per week, and Father was in contempt for failing to pay 

over $10,000 in child support. Relevant to this appeal, the order also provided that Mother 

and Father “shall share equally in extracurricular activities” and that Mother would be 

responsible for providing healthcare and Father could no longer attend medical appointments 

with her and the children. Id. at 27. After an unsuccessful motion to correct error, Father 

now appeals. Additional information will be provided below as needed.

Father appeals from a decision in which the trial court issued an order with only 

limited findings of fact. Although Father made an oral request for specific findings, this 

request came mid-way through the modification hearing and he did not file a written request. 

“Accordingly, we review the special findings and conclusions as if they were issued sua 

sponte by the trial court.” Leever v. Leever, 919 N.E.2d 118, 122 (Ind. Ct. App. 2009). See 

also Ind. Trial Rule 52(A) (requiring requests for special findings to be written and filed with 

the trial court prior to the admission of evidence). 

Where the court has made special findings, we employ a two-step standard of review. 

Leever v. Leever, 919 N.E.2d 118. We determine whether the evidence supports the findings 
9

and then whether the findings support the judgment. Id. In this regard, we consider only the 

evidence and reasonable inferences most favorable to the judgment, without reweighing the 

evidence or assessing witness credibility. Id. When the trial court enters findings sua sponte, 

however, the specific findings control only as to the issues they cover. Id. “A general 

judgment standard applies to any issue upon which the trial court has not made a finding and 

may be affirmed upon any legal theory supported by the evidence.” Id. at 122.8

1.

Father argues that the order effectively granted sole legal and physical custody to 

Mother, despite an express finding by the trial court that such was not warranted. He also 

appears to contend that once the court denied Mother’s request for sole custody, the court 

was precluded from modifying parenting time or any other provisions of the custody order.

Our legislature has defined the circumstances under which a custody order may be 

modified:

(a) The 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 section 8....

(b) In making its determination, the court shall consider the factors listed under 

section 8 of this chapter....

Ind. Code Ann. § 31-17-2-21 (West, Westlaw current through P.L.29 of the 2nd Reg. Sess. of 

the 118th General Assembly (2014) with effective dates through March 13, 2014). The 

factors to be considered by the trial court include, but are not limited to, the following:

 

8

 Much of Father’s appellate argument is based upon his incorrect belief that the trial court was required to 

issue specific findings to support every aspect of its decision. 
10

(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....

I.C. § 31-17-2-8 (West, Westlaw current through P.L.29 of the 2nd Reg. Sess. of the 118th

General Assembly (2014) with effective dates through March 13, 2014). Although the trial 

court is required to consider the statutory factors, the court is not required, absent a proper 

request by a party, to make special findings regarding the substantial changes in the parties’ 

circumstances. In re Paternity of J.T., 988 N.E.2d 398 (Ind. Ct. App. 2013).

We initially observe that the parties incorrectly interpret the trial court’s order as 

concluding that no substantial change in circumstances existed. The order provides:

26. The Court has considered the relevant statutory factors and case 

law, has considered the evidence and testimony of parties, as well as the 

reports and recommendations of the Domestic Relations Counseling Bureau 

and the GAL. The Court has specifically considered the best interests of the 

children. Father maintains Mother has failed to carry her burden of showing 

there is a substantial change in circumstances which warrants modification. 

This Court agrees. That is, to the extent that Mother requests sole physical 

and legal custody of the parties’ minor children. This Court hereby denies that 

request.

27. However, based on the evidence presented to this Court, the 

Court does make the following modifications, which it believes to be in the 

best interest of the children.
11

Appellant’s Appendix at 24 (emphasis supplied). Although the order certainly could have 

been more carefully crafted, we read it to mean that the trial court found there were 

substantial changed circumstances but that the changes did not warrant transferring sole 

custody to Mother and limiting Father’s parenting time to that set out in the Guidelines. 

Accordingly, the court made less drastic modifications that it felt were warranted and in the 

best interests of the children.9

With respect to physical custody, the trial court modified Father’s parenting time 

during the school year to an amount less than what Father was seeking yet more than the 

amount sought by Mother. As set forth above, Father agreed to a modification of his 

parenting time from every weekend during the school year to three weekends per month with 

a Monday overnight on Mother’s weekend. Mother sought sole custody and parenting time 

for Father according to the Guidelines, which would give Father two weekends per month 

and mid-week parenting time each week for four hours. See Ind. Parenting Time Guideline § 

II(B)(1). The trial court granted Father the three weekends per month that he was seeking, 

but changed the return time to Sunday evenings rather than Monday mornings. Further, 

instead of the one mid-week overnight that Father sought, the court granted him weekly midweek parenting time as set out in the Guidelines. 

To be sure, the modification resulted in a reduction of overnights enjoyed by Father, 

 

9

 We also note that Mother and Father both sought modification and therefore, in effect, agreed that there had 

been a substantial change in circumstances but disagreed as to what type and degree of modification was in the 

best interests of the children. Moreover, the record undoubtedly establishes substantial changed circumstances. 

To name a few, the parenting coordinator was no longer involved with the family, Mother and Father were not 

communicating well, it had been nearly four years since the original custody agreement, and the children were 

now both school age and attending elementary school near Mother’s home.
12

but Father has not established that that the trial court abused its discretion in this regard. See 

K.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009) (we review for an abuse of discretion with a 

“preference for granting latitude and deference to our trial judges in family law matters”) 

(quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). The record establishes that the 

children attend school near Mother’s home and at least thirty minutes from Father’s home. 

Having the children overnight with Mother each school night results in less travel time on 

school mornings and provides consistency. Moreover, the GAL and the custody evaluator 

recommended reduced parenting time for Father. In light of the record before us, we cannot 

say that the trial court abused its discretion by finding that the modification of parenting time 

was in the children’s best interests.

We now turn to the issue of legal custody. Despite a history of significant discord 

between Mother and Father, the trial court determined that joint custody was still feasible. 

Mother does not appeal this determination. Father, on the other hand, complains that the trial 

court abused its discretion by giving Mother sole responsibility for taking the children to 

medical appointments. Contrary to Father’s belief, the trial court’s denial of Mother’s 

request for sole legal custody did not preclude the court from modifying the custody order in 

this regard. There is evidence in the record indicating that Father has caused problems in the 

past when attending doctor appointments with Mother and the children. We acknowledge 

that the evidence in this regard was limited and conflicting, but our task is not to reweigh the 

evidence on appeal. Further, the GAL specifically recommended that Mother have the sole 

responsibility for providing healthcare for the children. Under the circumstances, the trial 
13

court did not abuse its discretion by determining that this modification was in the children’s 

best interests.

2.

Father contends that the trial court erred by imputing income to him for child support 

purposes in the amount of $50,000 per year. He claims the evidence does not support this 

amount. We agree.

The Indiana Child Support Guidelines require a trial court to determine the proper 

level of child support by calculating each parent’s weekly gross income, which is broadly 

defined to include actual income, potential income if a parent is under-employed, and 

imputed income based on in kind benefits. Glass v. Oeder, 716 N.E.2d 413 (Ind. 1999). 

Imputed income may include “regular and continuing payments made by a family 

member...that reduce the parent’s costs for rent, utilities, or groceries”. Ind. Child Support 

Guideline 3(A) Commentary 6(d).

With respect to Father’s income, the trial court made the following findings:

36. Father is a “general contractor” who is doing work for Woodridge. 

Father testified that he works between 20-40 hours per week and that he can 

control his schedule. Father failed to tender any evidence regarding his pay 

from Woodridge. Father refused to provide any pay information to the GAL.

37. Father receives money from his Mother each month; he estimated the 

sum to be around $1,000.00.

38. Father testified that he would be able to earn $50,000.00 per year, but 

for the preparation of his case in this cause.

39. The Court concludes that Father is purposefully under-employed and is

capable of earning at least $961.54 per week. Father’s request that the Court 

use $100 per week as his income is unreasonable and the Court does not find 

Father’s testimony credible that he only earns $100 per week.

Appellant’s Appendix at 25-26.
14

The original settlement agreement set Father’s weekly income at $428 per week. 

Further, eight months before the final day of the underlying evidentiary hearing, Father 

testified that he was earning between $400 and $500 per week. Father’s subsequent 

undocumented and self-serving claim that his weekly income was now only $100 was 

prudently rejected by the trial court. The record establishes that Father was underemployed 

and/or not reporting his full income. Further, the regular support Father received from his 

mother could be properly imputed as income. See Glass v. Oeder, 716 N.E.2d at 417 

(“Glass’ rent-free living arrangement provides him with a lower living cost that presumably 

frees up money for the support of his children and was a proper basis for the trial court to 

impute income”). 

The trial court determined that Father was capable of earning $50,000 per year. This 

finding is not supported by the evidence and is clearly erroneous. When asked by Mother’s 

counsel if he was capable of earning $50,000 a year, Father testified that he had never made 

that much in his current field, which he had been in throughout the marriage and thereafter. 

At the time of dissolution, the parties agreed that Father was earning about $22,200 per year. 

Nothing in the record indicates that Father’s income potential improved, let alone more than 

doubled, since the dissolution. 

On remand, the trial court is directed to reconsider Father’s weekly income and child 

support obligation. This may be done by returning to the original income figure of $428 per 

week based upon Father’s failure to establish different income figures, or the court may find 

that an increase is warranted based upon the regular and continuing support Father receives 
15

from his mother. Once Father’s gross weekly income is determined, the trial court shall 

recalculate Father’s support obligation accordingly.10

3.

Father next challenges the trial court’s decision to allow Maternal Grandmother to 

care for the children without restriction. The settlement agreement provided: “[M]other will 

not use [Maternal Grandmother] as a childcare provider except if there is no other reasonable 

choice available”. Appellant’s Appendix at 45. This provision was originally included in the 

2009 agreement due to acrimony between Father and Maternal Grandmother. In his 

November 2012 report to the trial court, the GAL recommended that the court lift the 

restriction. The GAL testified at the November 2013 hearing that he made this 

recommendation because he did not think the restriction was necessary or that Maternal 

Grandmother was a danger to the children. In light of the GAL’s recommendation, we 

conclude that the modification was supported by the evidence and not an abuse of the trial 

court’s broad discretion.

4.

Finally, Father contends that the provision regarding extra-curricular activities 

requires clarification. The order provides: “The parties shall share equally in extracurricular 

activities for the children.” Id. at 26. Father claims it is unclear whether this provision 

 

10

 Father’s pro se argument that “he was entitled to a retroactive modification of his child support payment 

obligation to reflect his actual parenting time and income” is difficult to understand and not supported by 

cogent argument. Appellant’s Brief at 48. Further, the one case cited by Father, Hicks v. Smith, 919 N.E.2d 

1169 (Ind. Ct. App. 2010), is inapposite.
16

“pertains to selecting activities, paying for activities, providing transportation for the children 

to activities, or directly participate [sic] in the activities as parent volunteers.” Appellant’s 

Brief at 16.

It appears clear to us that this provision is intended to address only the expenses 

associated with the children’s extracurricular activities. Given the contentious nature of 

these proceedings, however, it may be prudent for the trial court to provide clarification to 

the parties on remand.

Judgment affirmed in part, reversed in part, and remanded with instructions.

MATHIAS, J., and PYLE, J., concur.