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 defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Debra Lynch Dubovich

Levy & Dubovich

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Michael A. Fish

M. Jill Sisson

Valparaiso, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In Re the Paternity of N.W.

M.A.

Appellant-Respondent,

v.

N.W.,

Appellee-Petitioner.

June 17, 2015

Court of Appeals Case No.

45A03-1410-JP-376

Appeal from the Lake County 

Juvenile Court

The Honorable Aimee M. Talian, 

Magistrate

The Honorable Elizabeth G. 

Tegarden, Magistrate

The Honorable Thomas P. 

Stefaniak, Jr., Judge

Cause No. 45D06-1204-JP-1040

Bailey, Judge.

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Case Summary

[1] In this paternity action, M.A. (“Mother”) appeals the trial court’s order 

awarding legal custody and primary physical custody of No.W. (“Child”) to 

N.W. (“Father”).

[2] We affirm.

Issues

[3] Mother raises several issues for our review. We restate these as the single 

question of whether the trial court’s decision to grant Father legal custody and 

primary physical custody of Child was an abuse of discretion because

1. The evidence did not support the findings;

2. The findings did not support the judgment; and

3. The judgment was clearly erroneous.

[4] Father presents an issue for cross-appeal, namely, whether the trial court may, 

upon Father’s motion after the conclusion of this appeal, take up Father’s 

requests for attorneys’ fees and reapportionment of Guardian ad Litem fees.

Facts and Procedural History

[5] Child was born on March 7, 2005 to Mother and Father, who were cohabiting 

in a non-marital relationship. Father acknowledged his paternity of Child. At 

some point, Father moved out of the residence. Father provided cash or other 

payments to assist in Child’s support from the time Father left until around 

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February 2012. No formal orders concerning paternity, support, or parenting 

time had been sought or obtained.

[6] In January 2012, Mother lived in Highland with Child, who attended school in 

Highland; Father lived in Schererville. Father commenced a relationship with a 

woman who became, by the time of the present proceedings, Father’s live-in 

girlfriend. On February 21, 2012, Mother refused to permit Father any further 

contact with Child. In response, Father ceased making any payments for 

Child’s support.

[7] On April 3, 2012, Father filed a Verified Petition to Establish Paternity of 

Minor Child. In the petition, Father sought joint legal and physical custody of 

Child. (Appellee’s App’x at 1-2.) Despite filing the petition, Father did not 

see Child until June or July 2012.

[8] After an initial hearing, an order was entered on October 15, 2012, effective 

nunc pro tunc to July 16, 2012. The court recognized Father’s paternity of Child. 

The court also granted mother temporary custody of Child, subject to Father’s 

parenting time rights under the Indiana Parenting Time Guidelines. The court 

granted Father temporary parenting time to consist of two overnight visits with 

Child on alternating weeks; one weekday visit with child for up to four hours, 

with Child to be returned to Mother by 9:00 p.m.; and any other parenting time 

Mother and Father might otherwise have agreed to. Because Father worked 

weekends as a chef, Father was to submit to Mother his work schedule together 

with any request for parenting time, so that the parties could arrange for 

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Father’s visitation with Child. Transportation duties and expenses were to be 

shared by both parents. Father was also ordered to pay weekly child support of 

$101.44, and the order allocated insurance and payment of costs associated 

with Child’s medical care.

[9] Mother denied Father parenting time or any other opportunity to see Child on 

or around Halloween in 2012. This began another period during which Father 

was not permitted by Mother to see Child, and Father was denied visitation 

during both Thanksgiving and Christmas. Mother gave various explanations 

for denying parenting time to Father, including allegations that Father and his 

girlfriend were verbally abusive toward Child, and that Father was consistently 

late in picking up or dropping off Child from various locations. Mother 

claimed that Father’s interactions with Child caused Child to become extremely 

distressed, and thus Mother permitted Child to decide not to leave with Father 

for parenting time under the initial hearing order of October 15, 2012.

[10] Due to the conflict over parenting time, Julie Demange (“Demange”) was 

appointed to serve as a Guardian ad Litem in the case. Demange inquired into 

the reasons for Child’s resistance to participating in parenting time. Concluding 

that Father’s occasionally rough parenting played a role, Demange met with 

Father, who agreed to address concerns about his parenting style. Demange 

also served as an intermediary between Mother and Father in coordinating 

parenting time during portions of 2013.

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[11] Nevertheless, before March 2013 Father saw Child once, in February 2013, 

when Mother agreed to permit Father to see Child after Child expressed interest 

in receiving Father’s Christmas gifts. Child acknowledged that Father’s 

parenting style improved, and reported enjoying spending time with Father. 

Eventually, however, Mother and Father agreed to a parenting time schedule 

for the summer of 2013, during which they would alternate weeks.

[12] The first week of parenting time for Father began with difficulty, including a 

scheduling problem with Mother that prevented Father from seeing Child for 

several days. Child also cried for significant portions of the first night with 

Father, but eventually calmed down. During that first night, however, Child 

called Mother, who said she would come retrieve Child; Mother never did so, 

however.

[13] Inquiring into these events, Demange discussed the situation with Child, who 

appeared to believe that his participation in parenting time was optional and 

that he could go back to Mother’s home when he wished. Mother’s interactions 

with Demange took an adversarial turn at times, including regular and repeated 

allegations that Father had abused Child. Mother stated to Demange, “I will 

never do anything to help foster the relationship between [Child] and his 

biological father.” Tr. at 27.

[14] Subsequent weeks of extended parenting time during summer 2013 were also 

difficult. Mother had filed a petition to change Child’s last name, seeking either 

to have Child’s last name changed to hers or at least to be hyphenated, despite 

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having agreed with Father earlier in their relationship to give Father’s last name 

to Child. Yet upon taking Child to camp in summer 2013, Father learned that 

Mother had registered Child under Mother’s last name.

[15] During the school year, Mother refused to permit Father to pick Child up from 

school, and instead had Child go to a babysitter who watched a number of 

other children.1

 When she did permit Father to pick up Child, Mother 

nevertheless would not agree to inform the school that Father was permitted to 

do so. Thus, Child would have to walk off of the school campus and meet 

Father off school grounds.

[16] Mother’s interactions with Father were frequently marked with threats to call 

police. On at least one occasion, Mother called police to perform wellness 

checks on Father and Child during Father’s parenting time.

[17] Extended parenting time was also attempted during summer 2014. Child 

stayed with Father for a few days after school ended for the summer, and spent 

the second full week of summer break with Father. Father never had parenting 

time or contact with Child for the rest of the summer. Father would request 

parenting time in a general way, and Mother would not respond. Only in late 

July, when Father made a highly specific request for parenting time on a 

specific day for a specific range of time, did Mother respond to Father or agree 

to allow him to pick up Child. Even at this point—with what Mother 

1 In her testimony, Mother stated she did not know whether the babysitter was a licensed childcare provider.

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considered to be a proper request—Mother threatened Father with police 

involvement, saying that “[t]he police do not care about your incoherent 

rambling.” Ex. 10.

[18] As a result, Mother agreed to allow Father to pick up Child on August 3, 2014, 

from 8 a.m. until 8 p.m. Father arrived at around 7:30 a.m. to pick Child up 

from Mother’s home. Child refused to leave, speaking to Father through a 

partially-open window. Father attempted to communicate through the window 

with Mother, who did not respond to Father. Father also consulted with police, 

who informed Father that they could not provide assistance.

[19] Beginning in November 22, 2013, the trial court heard testimony on the custody 

and parenting time issues raised in Father’s petition, as well as on several other 

pending matters involving child support, Mother’s petition to change Child’s 

name, and Father’s petition to hold Mother in contempt of court for failing to 

comply with the trial court’s order concerning parenting time. Testimony was 

heard on November 22, 2013, January 17, 2014, and January 24, 2014 by 

Magistrate Elizabeth G. Tegarden. 

[20] Magistrate Tegarden was unavailable to hear the remainder of the evidence at a 

hearing set for August 14, 2014. The parties agreed Magistrate Aimee Talian

would preside over the final hearing day and, prior to that, would listen to the 

audio recordings of the testimony conducted before Magistrate Tegarden. 

Magistrate Talian listened to the audio recordings of the prior testimony and 

then, on August 14, 2014, personally heard the remainder of Father’s 

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testimony, as well as all of Mother’s testimony. During her testimony, Mother 

repeatedly insisted that she would not release her child into the care of an 

abuser, referring specifically to her beliefs concerning Father’s conduct toward 

Child and to Father’s prior encounters with law enforcement.

[21] On September 22, 2014, the court entered findings and conclusions on various 

pending matters. The court found that Mother had repeatedly thwarted 

Father’s efforts at exercising parenting time by refusing to cooperate with 

scheduling of parenting time and scheduling child’s extracurricular activities 

during Father’s parenting time. The court observed that Child appeared to 

believe he could dictate the terms of parenting time with Father, an impression 

the court found was the result of Mother’s interference with Father’s parenting 

time. The court also found that Mother had engaged in “destructive and 

deliberate” efforts to damage Father’s relationship with Child that amounted to 

“parental alienation.” Appellant’s App’x at 23. The court found Mother’s 

repeated allegations of abuse by Father to lack credibility, and found that 

Father genuinely cared for child and had taken steps to improve his parenting 

style.

[22] As a result, the trial court ordered that Father be awarded sole legal custody 

and primary physical custody of Child. The court found this determination to 

be in Child’s best interests, and to be “the only way to enable the child to 

restore his relationship with Father with limited interference from Mother.” 

Appellant’s App’x at 23. The court arranged parenting time as follows:

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Mother is awarded ... parenting time ... [e]very other Thursday 

commencing at 6:00 p.m. continuing through Sunday at 6:00 p.m., 

and in those alternating weeks where Mother does not exercise 

weekend parenting time, she shall be entitled to parenting time 

Wednesday evening at 6:00 p.m. through Friday morning at 9:00 a.m. 

or the start of the school day, whichever is earlier. Each party shall be 

entitled to seven (7) consecutive days during the summer and the 

parties shall make their designation no later than April 1st of that year. 

The parties shall exercise holiday parenting time through strict 

adherence to the Indiana Parenting Time Guideline Schedule.

Appellant’s App’x at 23.

[23] The court further ordered Father to begin individual therapeutic counseling 

sessions for Child, with instructions that Mother and Father both participate as 

recommended by Child’s therapist. Father was also encouraged to allow Child 

to continue his extracurricular activities of swimming and music lessons. The 

court denied Mother’s request to change Child’s name, and ordered Mother to 

pay weekly child support and to continue providing Child’s primary health 

insurance coverage. Finally, the court ordered the parties to submit additional 

information regarding child support arrearages, and to participate in parenting 

classes for high-conflict families.

[24] This appeal ensued.

Discussion and Decision

Legal Standard

[25] The Indiana Code provides statutory factors that trial courts must consider 

when reaching a custody determination:

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The court shall determine custody in accordance with the best interests 

of the child. In determining the child’s best interests, there is not a 

presumption favoring either parent. The court shall consider all 

relevant factors, including the following:

(1) The age and sex of the child.

(2) The wishes of the child’s 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 parents;

(B) the child’s siblings; and

(C) any other person who may significantly affect the child’s best 

interest.

(5) The child’s adjustment to home, school, and 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 2.5(b) of this chapter.

Ind. Code § 31-14-13-2.

[26] Here, the trial court was presented with an initial custody determination. In 

such cases, the court must “consider all evidence from the time of the child’s 

birth in determining the custody arrangement that would be in the best interest 

of the child.” In re Paternity of M.W., 949 N.E.2d 839, 843 (Ind. Ct. App. 2011).

[27] Child custody determinations rest within the trial court’s discretion, and we 

review a trial court’s decision in such cases for abuse of that discretion. Blasius 

v. Wilhoff, 863 N.E.2d 1223, 1229 (Ind. Ct. App. 2007), trans. denied. An abuse 

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of discretion occurs when the trial court’s decision is clearly against the logic 

and effect of the facts and circumstances before it or the reasonable inferences 

drawn therefrom. Id.

[28] Here, the trial court entered findings of fact and conclusions thereon. 

Reviewing findings and conclusions, we look to whether the evidence supports 

the findings, and whether the findings support the judgment. Id. Unless there is 

clear error, we will not set the judgment aside. Id. Findings of fact are clearly 

erroneous when those findings lack any supporting evidence or reasonable 

inferences from the evidence. Id. We will reverse a judgment for clear error 

when the record contains no facts or inferences supporting the findings and 

conclusions, so that “a review of the record leaves us with a firm conviction 

that a mistake has been made.” Bowyer v. Ind. Dept. of Natural Res., 882 N.E.2d 

754, 761 (Ind. Ct. App. 2008). In assessing the record, we do not reweigh 

evidence or reassess the credibility of witnesses, and consider only the evidence 

that favors the judgment. Id. We review conclusions of law de novo. Id. 

Where, as here, the findings and conclusions were entered sua sponte, where the 

court entered no findings, a general judgment standard applies and we may 

affirm on any legal theory supported by the evidence. Samples v. Wilson, 12 

N.E.3d 946, 950 (Ind. Ct. App. 2014).

[29] In her appeal, Mother draws the court’s attention to the procedural history of 

this case, and argues that our ordinary standards of review do not apply. 

Mother points to the change from Magistrate Tegarden to Magistrate Talian 

during the course of the evidentiary hearing, and argues that this is akin to a 

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case in which the trial court had only a paper record before it from which to 

decide the case. Accordingly, Mother argues, the proper standard of review to 

employ here is de novo review of the trial court’s judgment.

[30] Mother relies here upon the Indiana Supreme Court’s decision in In re Adoption 

of C.B.M., 992 N.E.2d 687 (Ind. 2013). In C.B.M., the trial court denied a 

motion to set aside judgment of an adoption decree under Trial Rule 60(B)(7). 

Id. at 691. In C.B.M., however, the trial court ruled “‘on a paper record without 

conducting an evidentiary hearing.’” Id. (citing GKN Co. v. Magness, 744

N.E.2d 397, 401 (Ind. 2001)).

[31] Here, Magistrate Talian did not rely solely on a paper record. Magistrate 

Talian presided over one day of testimony in person after listening to the audio

recordings of prior testimony presented before Magistrate Tegarden. These 

recordings consisted of Demange’s testimony and a portion—but not all—of 

Father’s testimony. Magistrate Talian was also presented in person with 

testimony from Father and Mother, and conducted an in camera interview with 

Child. Magistrate Talian was afforded an opportunity to observe testimony 

from Father—whose testimony on August 14, 2014 was not substantially 

different from his prior testimony—and from Mother. She was thus afforded 

the opportunity to assess each parent’s credibility, was able to compare Father’s 

testimony over multiple days with his testimony on August 14, and was able as 

well not only to read but to hear testimony from Demange. We accordingly 

find C.B.M. inapposite, and do not deviate from our previously-announced 

standards of review.

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Findings in Light of the Evidence

[32] On appeal, Mother contends that the evidence presented during the hearing did 

not support the trial court’s findings. Mother identifies five findings of fact that, 

she contends, are clearly erroneous and warrant reversal of the judgment.

[33] Mother first identifies a portion of Finding 8, which states, “Although, [Child] 

told the school counselor that he wanted to see his father.” Appellant’s App’x 

at 22. Mother contends that this is incorrect, and that even if correct it had no 

bearing upon Child’s preferences for parental custody, since Child’s clear 

preference as expressed through his behavior was to remain with Mother.

[34] As to the evidentiary grounding of Finding 8, we observe that Mother’s 

argument disregards notes given to Demange by one of Child’s guidance 

counselors. Those notes include the following: “Do you like going to see dad –

‘yes’ I wish I could see him more.” Ex. 4. And while Child’s preferences are a 

factor in a custody determination, the trial court had discretion to weigh that 

factor based in part upon Child’s age of less than fourteen years.2

 See I.C. § 31-

14-13-2(3). The trial court’s finding has support in the record, and we decline to 

second guess the weight placed by the court’s upon Child’s wishes.

2

Child was not yet ten years old at the time of the trial court’s order awarding Father custody.

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[35] As to Finding 9, Mother contends that the portion of the finding that states, 

“Mother disparages Father in the presence of [Child],” Appellant’s App’x at 23, 

is without evidentiary support in the record. The entirety of the finding states:

Sadly, this child believes that he has the ability to make a choice as to 

whether or not to spend time with Father. [Child] believes that he is in 

charge. The Court believes this to be a result of mother’s destructive 

behavior and influence. Mother disparages Father in the presence of 

[Child]. Mother allows [Child] to choose when he will see his Father. 

Mother makes it incredibly difficult for Father to be involved in the 

minor child’s life.

Appellant’s App’x at 22-23 (emphasis added).

[36] We agree with Mother that there is no evidence in the record establishing what 

Mother says to Child. The single sentence Mother challenges, however, is of 

little weight compared to the remainder of Finding 9, which finds ample 

support in the record. Such evidence includes Demange’s testimony concerning 

Mother’s statements that she would do nothing to encourage a relationship 

between Child and Father, which Demange testified were “flabbergast[ing]” to 

her in light of her experience practicing family law. Supportive evidence also 

includes Father’s testimony concerning Mother’s obstruction of Father’s access 

to information about Child’s education and extracurricular activities, and 

Demange’s testimony concerning Mother’s promises to Child that she would 

come get him if he wanted to leave Father’s home during parenting time.

[37] Mother’s communications with Demange discussed the idea that Child “wants 

to come home and should be able to.” Ex. 3. Mother also stated that she 

refused to allow Father to see child for Father’s Day “[b]ecause he is crying 

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hysterically that he doesnt [sic] want to go and im [sic] not forcing him to go 

back to your prison.” Ex. 6. All this occurred despite the court-ordered nature 

of the parenting time, and Mother repeatedly warned that she would involve 

the police if Father was slightly late in picking up or dropping off Child from 

activities. Ex. 3. Mother’s communications with Father were repeatedly 

obstructive, as evidenced by her refusal to treat anything other than an 

extremely specific request for parenting time as a proper request. Ex. 10.

[38] We accordingly find evidence in the record to support the substance of Finding 

9. Mother’s arguments otherwise are, again, efforts to persuade us to 

impermissibly reweigh evidence.

[39] Mother also challenges Finding 10, which states that Mother scheduled 

activities for Child during designated parenting time without first consulting 

Father, and that Mother “refused to allow Father parenting time for the entire 

summer” in 2014. Appellant’s App’x at 23. Mother’s argument as to the first 

part of the finding is that Father’s schedule as a cook was busy and 

unpredictable; that is true, except for a long period of time during which Father 

was out of work due to an injury.

[40] As to refusal of parenting time for the entire summer, after the third week of 

summer 2014, Father did not receive responses from Mother to his open-ended 

questions about parenting time. It was only when Father made a very specific 

request for parenting time—naming a particular day and particular timeframe—

that Mother responded. Mother stated plainly: “‘When can I see my son’ is 

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not the appropriate way to request specific visitation time.” Ex. 10. And even 

after permitting Father to see Child, Mother again threatened police 

involvement: “I need to have documentation for the police to file yet another 

police report when you decide to break our agreed upon visitation schedule yet 

again.” Ex. 10.

[41] In all of this, Mother consistently refused to permit Father to have overnight 

custody of Child, despite a provisional parenting time order calling for just such 

custody. Whether “the entire summer” or “significant parts” of the summer are 

at issue, the import is the same: the evidence supports the trial court’s multiple 

conclusions that Mother repeatedly interfered with Father’s efforts to exercise 

court-ordered parenting time. Again, we find no error.

[42] Mother also challenges Finding 11, which found that Mother “justifies her 

conduct by raising allegations of emotional and physical abuse.” Appellant’s 

App’x at 23. Mother draws our attention to testimony from Father and 

Demange regarding Father’s sometimes rough interactions with Child when 

Child would cry “uncontrollably where he can barely breathe at that point in 

time.” Tr. at 261. Father acknowledged that he called Child “a little girl” at 

times in order to calm Child down, and that “[s]ometimes [Child] sucks it up 

and stops crying so we can actually have a conversation.” Tr. at 261. Mother 

contends that this happened in more than one instance—indeed, she argues that 

the record “was saturated with evidence establishing this was not an isolated 

occurrence.” Appellant’s Br. at 20.

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[43] We note that Mother quotes statements from the transcript “since he was six or 

seven” removed from context and, importantly, without direct citation to the 

record. Appellant’s Br. at 20. We remind the parties that it is incumbent upon 

them to provide direct citations to the record, and that issues upon appeal may 

be waived when they would otherwise force this Court to “sift through a record 

to locate error.” Wright v. Elston, 701 N.E.2d 1227, 1231 (Ind. Ct. App. 1998), 

trans. denied; Ind. Appellate Rule 46(A)(8)(a). While Mother finds fault in 

Father’s admission to having reevaluated his approach to parenting Child, the 

trial court apparently viewed this favorably. And, importantly, the trial court 

expressly rejected Mother’s oft-repeated contentions of abuse: “The Court does 

not find Mother’s allegations of ongoing emotional and physical abuse to be 

credible.” Appellant’s App’x at 23.

[44] We will not reweigh the court’s decision or reassess its credibility 

determinations. We find no error in Finding 11.

[45] Finally, Mother challenges the correctness of Finding 15, which took notice of 

Mother’s statements during the hearing on August 14, 2014 that she might 

move closer to her employment and that this might necessitate Child changing 

schools. Mother observes that her testimony to this effect did not indicate a 

firm plan to move.

[46] Mother is correct as to the specific substance of her testimony. But her 

observation that she twice previously filed notices of intent to relocate—neither 

of which she followed through on—does little to reinforce her point. Moreover, 

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the trial court viewed Mother’s tentative plans to relocate in the broader context 

of Father’s relationship with Child, namely, that changing custody would 

necessitate a change in schools in any case. Simply put, the trial court gave 

little weight to the question of Child’s integration into his existing school

environment, particularly given its assessment of Mother’s conduct vis-à-vis 

Father’s parenting time rights. We will not second guess the court’s decision on 

that point. We find no error in Finding 15.

Conclusions in Light of the Findings

[47] We turn now to Mother’s contention that the trial court’s judgment was 

unsupported by the findings. Mother’s argument centers on the premise that 

any misconduct on her part was isolated and did not place Child at risk, and 

that the trial court’s award of custody to Father amounts to punishment of 

Mother.

[48] Where there is an existing custody order, it may not be modified “unless 

modification is in the child’s best interests and a substantial change has 

occurred.” In re Paternity M.P.M.W., 908 N.E.2d 1205, 1208 (Ind. Ct. App. 

2009). Here, no such prior custody order existed. Nevertheless, we observe 

that, “[g]enerally, cooperation or lack thereof is not appropriate grounds for 

switching custody.” Id. Were a court to order that custody to be changed as a 

result of failure to cooperate with a custody order, “it would impermissibly 

punish a parent for noncompliance with a custody agreement.” Id. This 

accords “with the supremacy of the child’s interest in permanence and stability 

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over a parent’s preferences.” Pierce v. Pierce, 620 N.E.2d 726, 730 (Ind. Ct. App. 

1993), trans. denied. 

[49] In reaching its order giving Father legal and primary physical custody of Child, 

the trial court took note of and entered findings that Mother’s conduct 

interfered with Father’s exercise of parenting time. But the court also took note 

of the effect of Mother’s conduct upon Child’s relationship with Father, and 

expressly relied upon that consequence of Mother’s conduct in its decision to 

grant custody to Father. Challenging this, Mother addresses individual findings 

in isolation, and treats the statutory factors as individual elements that dictate 

one or another outcome in the case. Simply put, Mother’s argument asks that 

we reweigh evidence and reassess credibility. We decline to do so.

[50] The trial court’s express basis in granting custody to Father was that it was in 

Child’s best interest to restore a relationship with Father. The trial court 

concluded from Mother’s conduct that this would not occur unless Father was 

granted primary physical and sole legal custody of Child. The findings—which 

we have concluded were not erroneous—support that conclusion.

Cross-Appeal

[51] We turn now to Father’s issue upon cross-appeal, whether, upon remand, the 

trial court may address his request for payment of his attorneys’ fees.

[52] In paternity cases, trial courts may, in their discretion, order a party to pay a 

reasonable amounts for the costs of another party maintaining the paternity 

action and for attorney’s fees. I.C. § 31-14-18-2(a). Father’s petition to 

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establish paternity requests that Mother pay his attorney fees. (Appellant’s 

App’x at 26.) During the evidentiary hearing on the petition, both parties 

presented testimony concerning their own attorneys’ fees, as well as those fees 

associated with the work of Demange as Guardian ad Litem for Child. The 

trial court did not, in its findings and conclusion, enter an award of attorneys’ 

fees or reapportion Guardian ad Litem fees for either party.

[53] Father did not, prior to the instant appeal, file a motion seeking clarification or 

an additional ruling on his request for attorneys’ fees and reapportionment of 

Demange’s fees as Guardian ad Litem. Father notes that, upon appeal, “[t]he 

Court on Appeal acquires jurisdiction on the date the Notice of Completion of 

Clerk’s Record is noted in the Chronological Case Summary.” App. R. 8. 

“Once an appeal has been perfected to the Court of Appeals or the Supreme 

Court, the trial court has no further jurisdiction to act upon the judgment 

appealed from until the appeal has been terminated.” Schumacher v. Radiomaha, 

Inc., 619 N.E.2d 271, 273 (Ind. 1993). “This rule facilitates the orderly 

presentation and disposition of appeals and prevents the confusing and 

awkward situation of having the trial and appellate courts simultaneously 

reviewing the correctness of the judgment.” Southwood v. Carlson, 704 N.E.2d 

163, 165 (Ind. Ct. App. 1999) (quotation marks omitted).

[54] Father contends that he was unable, as a result of Mother’s appeal, to file a 

motion seeking the trial court’s ruling on his requests for fees, because this 

Court had acquired jurisdiction before he filed a motion requesting a separate 

ruling. However, Father contends that because the trial court’s order was silent 

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as to both his and mother’s petition for fees, the matter should remain open for 

resolution by the trial court upon the conclusion of this appeal. Mother argues 

that by failing to properly advance this argument in his Appellee’s brief, Father 

waived his appeal. Mother further argues that the trial court implicitly denied 

Father’s request for attorneys’ fees when it did not include in its order a finding 

that Father was entitled to payment of his fees under Section 31-14-18-2.

[55] With respect to omitted findings and conclusions, our Indiana Supreme Court 

has stated:

In considering the sufficiency of the findings of fact and conclusions of 

law to sustain the decision, we recognize the general rule (a) that this 

court must accept ultimate facts as stated by the trial court if there is 

evidence to sustain them, and (b) that where facts necessary to sustain 

the issues are not found by the trial court and the findings are silent as 

to such facts, they are regarded as not proved. Under such 

circumstances the law, in effect, implies negative findings as to such 

issues against the party having the burden of their proof.

Miller v. Ortman, 235 Ind. 641, 665, 136 N.E.2d 17, 31 (1956) (footnotes 

omitted); also McIntyre v. Guthrie, 596 N.E.2d 979, 983 (Ind. Ct. App. 1992); 

Rogers v. City of Evansville, 437 N.E.2d 1019, 1026 (Ind. Ct. App. 1982).

[56] Here, the trial court did not enter findings or conclusions on Father’s request for 

attorneys’ fees. None of the facts decided in the custody and child support 

order had any relation to Father’s request. The trial court was “silent as to such 

facts, [which] are regarded as not proved.” Id. A negative judgment has been 

implied as a result, the effect of which is that the trial court determined that 

Father was not entitled to payment of attorneys’ fees.

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[57] Father offers no argument as to the propriety vel non of that decision. He 

instead argues only that the issue is still open, while acknowledging that he 

failed to pursue any form of clarification of the court’s order before this Court 

assumed exclusive jurisdiction over the case. Failure to provide cogent 

argumentation and citation to the record and relevant authorities results in 

waiver, and we conclude Father has waived that issue for our review. See App. 

R. 46(A)(8)(a) (requiring cogent argumentation with citations to the record and 

applicable law); Pierce v. State, Cause No. 78S05-1407-CR-460, Slip op. at 11 

(Ind. May 12, 2015) (“[a] litigant who fails to support his arguments with 

appropriate citations to legal authority and record evidence waives those 

arguments for our review”).

[58] Accordingly, the question of attorneys’ fees is not subject to consideration at the 

trial court upon conclusion of this appeal. Father has waived this Court’s

review of the merits of the trial court’s implied denial of the request for 

attorneys’ fees and Guardian ad Litem fees reapportionment.

Conclusion

[59] The trial court did not enter erroneous findings and conclusions, and it did not 

abuse its discretion when it granted Father custody of Child. The trial court’s 

silence as to Father’s request for attorneys’ fees and Guardian ad Litem fees 

reapportionment amounted to denial of Father’s request; Father’s actions 

waived our review, and the matter is not open for adjudication before the trial 

court. We accordingly affirm the trial court’s order in all respects.

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[60] Affirmed.

Riley, J., and Barnes, J., concur.

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