Cour t of Appeals of In diana | Memorandum Decisi on 18A

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### MEMORANDUM DECISION

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 de fense of res judicata, collateral estoppel, or the law of the case

.

A TTORNEY FOR A PPELLANT Kevin J. Moser Kevin Moser Law PLLC Fort Mitchell, Kentucky A TTORNEY FOR A PPELLEE Leanna K. Weissmann Lawrenceburg, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Ja ck Putnick , Appellant

- Petitioner,

v. 

### Laura (Iles) Putnick , Appellee

- Re spondent May 22, 2020 Court of Appeals Ca se No. 18A

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- 26 74 Appeal from the Switzerland Circuit Court The Honorable W. Gregory Coy, Judge Trial Court Cause No. 78C01

- 1709

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- 242

Crone , Judge
.Cour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 2 o f 13 

### Case Summary

[1] The trial court entered an order dissolving the marriage between Jack Put nick ( Husband) and Laura ( Ile s ) Putnick (Wi fe). Husband appea ls the court ’ s decision to grant p rimar y physical custody of the parties ’ minor son , J.P., to Wife , and its order that he pay $750 of Wife ’ s atto rney ’ s fees , arguing that th o se decisions were clearly erroneous and/or an abu se of discreti on . We disagr ee and therefore affirm.



### Fact s an d Pr oc edural History

[2] Husband and Wi fe married in April 2004

. O ne child, J.P. , was born of the marriage i n November 2012. The parties separated in July 2017 when Wife left
the marital home a nd moved with J.P. to northern Kentucky

. Husband fi led a

pe tition for dissolution of marriage in September 2017 that came befor e the trial court for final hearing on August 8, 2 018. Thereafter, the trial court entered its
dissolution decree with s pec ific findings of fact that provided in relevant p art as follows : 1

8

. Hu sband lives at the mar ital residence; the residence is locat ed on property that had been in Husband ’ s family for some t ime.

9. Husband and Wife lived at the mar i t al residence for twelv e years.

1 W he re approp riate, w e replace any reference to the parties ’ and the minor ch il d ’ s names with the af

orementioned designations.Cour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 3 o f 13 1 0

. H u s b a n d t e s t i f i e d t h a t W i f e l e f t [with J.P.] o n J u l y 3 , 2 0 1 7 , a n d t h a t i t w a s s e v e r a l d a y s b e f o r e h e f o u n d o u t w h e r e s h e w a s

.

11. He also testified that Wife has move d at le ast twice subsequently thereafter without notifying him of when and w here she intended to m ove.

... .
1 3

. Wife moved ... to her cur rent [ n o rthe rn Kentuck y] residence on Ban klick Street.

1 4

. H u s b a n d w o r k s a t A u t o z o n e [ m a k i n g g ross income of approximately $ 5 6 , 0 0 0 p e r y e a r ] a n d s e t s h i s o w n s c h e d u l e ; h e h a s o t h e r s t o r e m a n a g e r s t h a t c a n c o v e r f o r h i m i n t h e e v e n t h e g a i n s c u s t o d y a n d w o u l d n e e d to be away from the store.

15. If Husband gains custody, J.P. will atten d school at Rising Sun Element ary.

16. Husband ’ s mother would also be available to care for J.P. in the event he n eeded coverage ; his s i ster would as well.

17. Husband does not int end to move from [the marital ] residence in the near fut ure and po sits that J.P. would likely graduate from Rising Sun.

18. As for J.P

. ’ s best interests, Husband points to his stability , s ecurity, and to th e fa ct that the home he is in now is w here J.P. h as l ived since birth other than for the time of se parat ion, and will continue to do so.

19. Wife testified that where she lives now is her “ forever home ” and that it is a sta ble home envir onment for J.P.; she r eside s there with a Mr. Tomlinson who pays so me o f the costs o f living.Cour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 4 o f 13 20

. Wife is disabled and receive s $1245 per month due to a debilitating back injury.

....
22. Wife has had custody of her grandson [A] since he was born ; he and J.P. think of one anot her as brothers.

23. The boys each have the i r ow n rooms and three acres to play
on.

....
26. W ife also testified that J.P. will be attending Florence Elementary and that it is within minutes of where she liv es.

....
28. As to the cus to dy of the child , the court is required to consider the fac tors se t fo rth in I.C. § 31

- 17

- 2

- 8.

29. As to the age and sex of the child, the court finds that the child is five (5) years old an d has resided primari ly with his mothe r since the date of separa tion; and that she has been the primary caregive r for the child sin ce b irth; whereas Husband has been the primary w age earner for the family during that time.

30. A s t o the wishes of the pare nts, each seeks joint legal custody wi th primary physical custod y.

31. The wishes of the child are not considered due t o his tende r ag e

.
32. The child ’ s inter action with his par ents is unknown but based on the t estimony, the court finds that each parent has an outstanding relationship with t he child.Cour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 5 o f 13 33. The child ’ s adjustment to the hom e is unknown; he is just starting kindergarte n.

34. All part ies are in good mental heal th; the only physica l issue is Wife ’ s disability but the court finds that to be a [ non factor ] in deciding custody.

35. The re has been no physical vi ol ence between the parents.

Appealed Order at 2

- 3. Based on the foreg oing , the trial court concluded that it
was in J.P. ’ s best in terests that the parties be granted joint le gal custody with Wife having primary physical custody. Hu sband was granted parentin g time in

ac cord ance with the India na Parenting Time Guidelines and wa s ordered to pay $129 per week in child support. Hus b and was further ordered to pay Wife ’ s

atto rney $750 in fees within sixty days of the court ’ s decree

.

[3] Husb and filed a motion to corre ct error , which was deemed denied on October 25, 2018. H e fi led a notic e of appeal on November 9, 2018 . However, the trial
court clerk thereaf ter failed to timely fil e a notice of completion of cle rk ’ s record. Because Husband never sou ght an order comp el l ing suc h compl etion
pursuant to Indi ana A ppellate Rule 10(F) , this Court dismissed the appeal with prejudice on August 26, 2019

. Husband filed a n amended appellate mo ti on to

correct error on Oct ober 1, 2 019 , requesting th at the a ppeal be reinstated

. O u r

mo tion s panel granted Husband ’ s mot ion and reins tated th e appeal. Wif e filed a motion to dismiss the reinstated appeal , which was subsequently denied byCour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 6 o f 13 the motions p anel , and the part ies pr oceeded to fil e their respec tive br iefs
herein. 2 We will provide add itio nal facts as necessary.



### Di s cussion and Decision
S ection 1

– Th e trial court neithe r abused its discretion nor clearl y erred in granting Wife primary physical cu stody of J.P.

[4] Hu sband challenge s the trial court ’ s physical custody determination. Our
standa rd o f review of ini tial chil d custody determinations is we ll settle d.
Determinations re garding child custody fall within the trial court ’ s sound
discretion. Swadner v. Swadner , 897 N.E.2d 966, 97 3 (Ind. Ct. App. 2008)

. In an initial custody determination, both parents are pr esumed equally entitled to custody. Ham ilton v. Hamilton , 103 N.E.3d 690, 694 (Ind. Ct. App. 2018), tr ans.

2 W ife urges us t o reconsider the ruling o f our motions pa ne l and dismiss thi s appeal for Husband ’s failure to timely fil e a motion to c ompel com plet ion o f the trial court cle rk ’ s record pursuant to our a pp ellate rules

. Specifically , Indiana A ppellate Rule 10 (F) re quires that, in the event the trial court clerk “ fails to is sue, file,
a nd serve a timely Notice of Completion of Cl erk ’ s Reco rd, ” an ap pell ant shall seek an order from this Court compelling the clerk t o complete the record and file such notice. Failure to d o so subjects the appellant ’ s appeal to dismissal

. Ind. Appellate Rule 1 0(F)

. As noted a bove, Husband ’ s appeal was originally dismissed due to his failure to time l y fi le a motio n to compel pu rsuant to Rule 10(F)

. In his amended motion to correct error , Husband provided detail regarding his communication s wit h the tria l court cle r k , her purported bac klog , and his belie f that the record would be compl et ed timely

. He explained that h is failure to seek a motion to compel when the record was not , in fact, completed , was simply due to inadvertenc e a s opposed to a willful di s regard o f the appellate rules. Wife suggests that Husband ’ s claim of inadvertence i s insufficient to justify reins tatement of his ap pe a l. However, Wife made this argument to the motions panel, a nd the panel rejected it. See Order on Wife ’ s Moti on to Dism iss, Cause No. 18 A

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– 2674 (Ind. Ct. App. Mar

. 2 , 2 0 20 ). W e ackno wl e dge that the wri ting panel has the inherent a uthority to reconsid er any decision of the motions panel w hile an appeal rema ins pending. Milbank Ins. Co. v. Indi ana Ins. Co ., 56 N .E.3d 1222 , 1226 (Ind. Ct

. A p p

. 2 0 1 6 )

. But , w e generally d o so only where a more complete record reveals clear authority establishing that t he motions p anel ruling was in error. Id

. That is not th e case here. We do not minimize Husband ’ s neglect in failing to follow up with the trial court , and we agree with W ife that cas es i nvolving chi ldren ideally should be resolved swift ly and without d el a y

. Still , given our long

s tanding preference for deciding cases on the merits , see id ., and given that the mo tions pane l reinsta t ed t he appeal and the parties have now fu lly briefe d this cas e, we proceed to consider the merits of the parti es ’ argum en ts.Cour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 7 o f 13 denied

. The trial court shall dete rmine custody and ent er a custody or der in accordance with the best interests of the child by co ns id ering all relev ant factors, including:
(1) The age and sex of the child. (2) The wi shes of the child ’ s parent or pare nts. (3) The wishes of the child, with more considera tion gi ven to th e child ’ s wishes if the child is at least fourteen (14) years of a ge

. (4) The interac tion and interrelationship of the child with: ( A) the child ’ s parent or parents; (B) the child ’ s sibli ng; and (C) any other person who may si gnifi cantly af fect th e child ’ s best interests. (5) The child ’ s adjustment to the child ’ s: (A) ho me ; (B) school; and (C) community. (6) The mental and phys ical hea lth of all individual s involved. (7) Evidence of a patt ern of domestic or family violence by e ither parent. (8) Evi dence that the child has been cared for by a de facto custodian, and if the e vi dence is suffic ient, the court shall consider the fact ors desc ribed in section 8.5( b) of this chapter.

In d. Code § 31

- 17

- 2

- 8

. In deference to the trial court ’ s p roximity to the issues,

we do not reweigh the evidence or determine the credibility of witn esse s. Hughes v. Ro gusta , 830 N.E.2d 898, 902 (Ind. C t. Ap p. 2005) . I nstead, we
conside r the evi dence most favorable to t he judgment, with all reasonable
inferences drawn in favor o f the judgment. Id

. We will affirm the trial court ’ s custod y determination abse nt an abuse of discretion. Swadner , 897 N.E.2d at
97 3

.Cour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 8 o f 13 [5] The tr i al court here entered specific find ings of fact to supp ort its custody
determination . The refore, u pon review, firs t we determine whether the evidence supports the court ’ s findings, and second, we det ermine whe ther the
find ings support the judgment. Lechien v. Wren , 950 N.E.2d 838, 841 (Ind. Ct. App. 2011)

. We wi ll set aside t he trial court ’ s specific fi ndings only if t hey are clearly erroneous, that is, when there are no facts or inferences drawn ther efrom

to s upport them. Id

. A judgment is clearl y erroneous w h en a review of t he
record leaves us with a firm co nviction that a mistake has been made. Id

.

[6] Husband concedes that the trial court considered the re quired statutory fa ctors
i n making its cu stod y determination

. Indeed, the trial court found that the
evide nce i n dicat ed that the parties each had an outstanding re lationship with J.P. and that they were relatively equal with regard to each of the statutory
factor s

. However, in dete rmining that f ive

- year - old J .P. ’s inte rests would b est be served in the pr imary physical c ustody of Wife , the court considered
evidence that Wife had been J.P

. ’ s primary caregiver s ince birth , and that Wife
has cus tody of her grandson of s imilar age, with who m J.P. shar es a sibling

- like relationship.

[7] Husband first comp lains that , in giving we ight to th is e vidence, the cour t improperly presumed that W i fe , as a mother, is b etter suited to ha ve p rimar y phys ical custody and that Husband is being punished for filling the tr aditional
rol e of being the b re ad winner during the marriage

. We d isagree wi th
Husband ’s contention that the trial court engaged in improper presumptions or
pun ishment , and we re m ind him that , in considering child cus tody, trial court sCour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 9 o f 13 are “ often called up on to make Solomon

- like decisions in complex and sensitive

matters

. ” Pawlik v. Pawlik , 823 N.E.2d 3 28, 329

- 30 (Ind. Ct. App. 2005) (citation omitted ) , trans . denied

. W h ere, as in this case , ea ch pare nt seeks sole primary physical custody of a child , the tr ial court must weigh the evidence and
make a choi c e in the best i ntere sts of th e child

. The court did so here and
det ermined that the e vidence weigh ed in Wife ’ s favor

. T he value of the trial

court ’ s close proximi ty to the parties and the issues in child custody cases
cannot be overstated , see id ., and we are mindful that the trial court wa s in a better position than we are to m ake a decisi on on the merits. Id

. Husband
effect i vely invites us to reweigh th e evidence as to J.P. ’ s best interes ts , which we
will not do. See id

. ( emphasi zing t hat this C ourt will not reweigh evidence when reviewing trial court ’ s custody deter mination)

.

[8] Husband further asserts that , in a ddition to unj ustifiab ly favoring Wife in its best interests analysis , the trial court abused its discretion and c learly erre d in failing to consider Wife ’ s “ misconduct, interference w ith [Husband ’ s] relationship with [J.P.], and la c k of communicat ion ” in making its cus t ody
determination

. Appellant ’ s Br. at 11. However, Wife ’ s testimony

un equivocally con tradicted Husband ’ s versio n of events and characterizat ion of
her behavior (s he testified Husband was fully aware that she was leaving him , that they communicat e regular ly , and that she does not int erfere with the father

son relationship ) , a nd it was the trial court ’ s prerogative t o weigh the evidence
and asses s credibility

. Indeed, although insisting that Wife ’ s testimony was
evasi ve and dishonest, Husband conce de s that only the trial court, in ob servingCour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 10 o f 13 live testimony, can capture the “ nua nce [s] o f an e xchange. ” Id

. at 12 n. 2. Again , Husband effe ctively invites us to rew eigh the evidence, and we will not.

[9] R egarding the trial court ’s findings of fa ct, Husband sp ecifical ly challenges only finding number 33, that “ the child ’ s adjus tment to t he home is unkn own ; he is just starting kindergarten

. ” Appealed Order at 3

. Husband claims that this finding is clearly erroneous because “ it is not possib le to fi nd that a child is no t adjusted to [Husband ’ s] residence where he lived ... for the first fou r or f ive years of life

.... ” A p pellant ’ s Br. at 16

. W hile pe rhaps not as detailed as it could have been, we understand this finding to simply be an acknowledgement by the trial court tha t , due to J.P. ’ s young age and ada ptability , h is adjustment

to his fo rmer pri mary residence when compared to his new primary resid ence

w as not a factor that weigh ed in favor of either party . Th is finding is not clearly

erroneous

. Mo reover, as Husband doe s not specifically cha l lenge the
remain ing findi ngs of fact, we accep t them as true. McMaster v. McMaster , 681
N.E.2d 744, 747 (Ind. Ct. App. 1997)

.

[10] I n sum, the evidence and reasonable i nferences support the trial court ’ s findings

an d its ultimate concl usion that it is in J.P. ’ s best in terests that Wife be granted primary physical custody , and our r eview of t he record do es not leaves us withCour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 11 o f 13 a firm co nviction that a mistake has been made

. T he trial court ’ s cust od y order
is neither clearly erroneous n or an abuse of discretion

. 3



### S ection 2

– The trial court did not abuse its discretion in

a warding Wife $750 in attor ney ’ s fe es.

[11] Husband also challenges the trial court ’ s order that he pay $ 750 of Wife ’s
attorney ’s fees. A court may order a pa rty to pay “a reasonable amount ... to
the other party” fo r attorney ’ s fees associated with a dissoluti on action. Ind.
Code § 31

- 15

- 10

- 1(a)

. The court has broad discretion in decidi ng whether to award attorney ’ s fees, and we will re verse its decision onl y upon a showing of
an abuse of discret ion

. Whited v. White d , 859 N.E.2d 657, 665 (Ind. 2007)

. That is to say, w e will rever se such an award only if it “is clearly against the logic an d effe ct of the facts and circumstances before the court.” Ma son v.
Mas on , 775 N.E.2d 706, 711 (Ind. Ct. App. 2002) , trans. d enied (2003)

.

[12] Here, Wife requested $1000 in fees and the trial court awarded $750

. Husband suggests th at the trial court did so “with ou t justification or reasoning. ”
A ppel lant ’s Br. at 18 . F irst , “the tri al court need not g ive its reasons for its
decision t o award attorney ’ s fees.” Bessolo v. Rosario , 966 N.E.2d 725, 733 (Ind.

3 Husband br i efly suggests tha t , aside from the physical cus tody is sue, an order of joint legal custody is not in J .P. ’ s best interests due to Wi fe ’ s all eged f ailures t o effectively communicat e with Husband. We note t hat the parties specifically requested j oint legal custody , and i t is well settled that a trial court shall cons ider it a matter of primary importance that the persons award ed joint custody h ave agreed to a n award of joint legal
c ustody

. Julie C. v. Andrew C. , 924 N.E.2d 1249, 1259 (Ind. Ct. App. 2010)

. Besides , w e will reverse an award of jo i nt legal custody only whe n the evidence indicates “a clear abuse of trial court discretion in that the joint custo dy award constitutes an imposition of an intolerable situation upon two persons who have made child rearing a battleground.” Swadner , 897 N.E.2d at 974 (citation om itted) . The evidence reflec ts no such imposition here.Cour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 12 o f 13 Ct. App. 2012 ) , trans. denied

. “In determining whether to awa rd attorney ’ s fees in a dissolution procee ding, trial courts should consider the part ie s ’ resources, their economic condition, their ability to engage in gainful employment and earn income, and other factors be aring on th e reasonableness of the award.”
Eads v. Eads , 1 14 N.E.3d 868, 879 (Ind. Ct. App. 2018)

. T he trial co urt here specifi cal ly considered the parties’ resp ective abilities to eng age in gainful empl oyment and earn income a nd found that Hus band earns more than $5 0 ,000 per year in income , while Wif e is unable t o work and collects only $1245 per month in disability . This eviden ce of the parties ’ economic condi t ion
and their respec t ive abilities t o enga ge in gainful employm ent more than justifies the tri al court ’s decision to awar d Wife a portion of her attor ne y ’ s fees.

[13] Husband maintains that the trial court abused its d iscr et io n in again f ailing to
consider Wif e ’ s alleged miscondu ct ( “ abs cond [in g] ” with J.P. , “ concealing ” his
wh ereabouts , and now “ ransoming ” him ) in awarding fees. Appellant ’ s Br. at
19

- 20

. Husb and is cor rect that any mis conduct on the p art of a party that directly r es ults in the other party incurr ing additional fees may be taken int o

c onsideration

. See Bessolo , 966 N.E.2d at 733

. However, as discussed above, the
trial cou rt clea rl y did n ot ag ree w ith Husband ’ s characterizat ion of Wife ’ s behavior , and we will not re weig h the evidence or reassess witness credibility
on this issue

. We fi nd no abuse of d isc retion. The judgment of the trial court is
affirmed in all respects.Cour t of Appeals of In diana | Memorandum Decisi on 18A

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- 26 74 | May 22, 2020 Page 13 o f 13 [14] A ffirmed.

Bailey, J., and Altice, J., concur.