Court of Appeals of Indiana | Memorandum Decision 02A03-1612-JP-02811 | July 31, 2017 Page 1 of 15

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 APPELLANTS

Heidi K. Koeneman

Beckman Lawson, LLP

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Randall J. Hammond

Leonard, Hammond, Thoma & 

Terrill

Fort Wayne, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Andrea Simon and Jimmie 

Busbee,

Appellants-Intervenors,

v.

Amanda Lynn Busbee,

Appellee-Petitioner,

and

Levi A. Fuller,

Appellee-Respondent.

July 31, 2017

Court of Appeals Case No.

02A03-1612-JP-02811

Appeal from the Allen Superior 

Court

The Honorable Daniel G. Heath, 

Judge

The Honorable Daniel G. Pappas, 

Magistrate

Trial Court Cause No.

02D07-1206-JP-000348

Najam, Judge.
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Statement of the Case

[1] Andrea Simon and Jimmie Busbee (collectively, “Grandparents”) appeal the 

trial court’s denial, following a bench trial, of their petitions for child custody 

and grandparent visitation. They raise three issues, which we restate as follows:

1. Whether the trial court committed clear error when it denied 

Grandparent’s Petition to Modify Custody.

2. Whether the trial court committed clear error when it denied 

Grandparent’s Petition for Grandparent Visitation.

3. Whether the trial court abused its discretion when it ordered 

Grandparents to pay Amanda Lynn Busbee’s (“Mother”) 

attorney’s fees without an evidentiary hearing.

[2] We affirm.

Facts and Procedural History

[3] Minor child, A.B., was born on June 7, 2012, to Mother and Levi Fuller 

(“Father”).1 Mother filed a petition to establish paternity and support on June 

26, 2012. On August 6, the trial court entered an order establishing paternity 

and awarded sole legal custody to Mother and parenting time to Father. 

[4] Although Mother had obtained a four-year degree in criminal justice from 

Indiana Tech, she worked as a waitress and/or bartender after A.B. was born, 

 

1

 Father did not seek custody of A.B. and does not participate in this appeal.
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until approximately September 2015. During that time, Mother and A.B. lived 

together but Mother relied on Grandparents to provide work-related child care 

for A.B. Because Mother’s jobs required her to work late hours—often until 

1:00 or 2:00 a.m.—A.B. frequently spent the night at Grandparents’ home. 

Grandparents frequently encouraged Mother to allow A.B. to spend the night 

with them.

[5] Grandparents had never been married but had been in a relationship for 

approximately thirty-two years. They owned a tobacco retail store in Fort 

Wayne at which they sold, among other things, various tobacco products, 

smoking devices, and sex toys. Grandparents were not salaried employees of 

the store, but received all net proceeds from the sales of the business, totaling

approximately $60,000-$70,000 per year. During the day, Jimmie Busbee 

(“Grandfather”) was primarily responsible for providing child care for A.B., 

although the Grandparents sometimes took A.B. with them to their store. 

When A.B. spent the night with Grandparents, she slept with Grandfather in 

his bed. 

[6] On September 25, 2014, Mother married Shane Ortega, who is employed with 

Jack Cooper Transport and earns approximately $60,000-$70,000 per year. 

Mother and Ortega had a child together, S.O., who was born on July 4, 2015. 

Ortega also has two minor daughters from a previous marriage, and he has joint 

legal custody of them and parenting time with them every other weekend. 

After marrying Ortega, Mother began working only two nights per week. 

However, by August 2016, Mother had ceased working and stayed at home 
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with the children full-time. Mother and Ortega shared a three-bedroom home 

with A.B., S.O., and Ortega’s two minor children. 

[7] Even after Mother ceased employment, she still permitted A.B. to have liberal 

visitation with Grandparents. However, Mother became concerned that the 

Grandparents were not respecting her wishes regarding A.B. Grandparents did 

not always bring A.B. home to Mother when asked, and they were sometimes 

not at their home with A.B. when Mother tried to pick A.B. up from them. 

Mother asked Grandparents to cease taking A.B. to their store, which Mother 

believed was inappropriate because of the items sold there, but Grandparents 

did not honor that request. Grandparents enrolled A.B. in a school without 

Mother’s consent, and Grandfather continued to visit A.B. at school even after 

Mother told him not to do so. 

[8] Grandfather disliked Ortega, and the two men engaged in a physical fight at 

A.B.’s birthday party at Mother and Ortega’s house on June 8, 2015. The fight 

led to an investigation by the Allen County Department of Child Services 

(“DCS”), which concluded that Mother’s home was safe and proper and the 

allegation of neglect was unsubstantiated. On September 23, 2015, 

Grandparents contacted DCS regarding an alleged bruise on A.B.’s buttock. 

DCS investigated that same day and found no cause to initiate an action 

concerning abuse or neglect by Mother or Ortega. However, Grandfather 

contacted DCS again on September 25 and reported that he felt A.B. was 

unsafe around Ortega. Grandfather admitted to DCS that Grandfather visited 

A.B. at her school without Mother’s permission. On September 29, 
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Grandfather again reported to DCS that he had visited A.B. at her school 

without Mother’s consent because Mother had told Grandfather she was going 

to move A.B. to another school if Grandfather kept visiting A.B. at school. 

Around the end of September, Mother ceased allowing Grandparents to visit 

with A.B. DCS completed its investigation in mid-October and concluded that 

the allegations of abuse and/or neglect of A.B. were unsubstantiated.

[9] On October 13, 2015, Grandparents filed a motion to intervene in the paternity 

action involving A.B. and an emergency petition to modify custody of A.B. 

The trial court granted the motion to intervene but found no emergency relating 

to custody. Grandparents then filed a petition for grandparent visitation, 

seeking a visitation order as to A.B. in the alternative to a modified custody

order. The trial court held a four-day hearing on the Grandparents’ petitions 

and, on November 14, 2016, it denied those petitions. The magistrate judge 

issued detailed findings and recommendations, which the judge approved. In 

addition to denying Grandparents’ petitions, the trial court also ordered 

Grandparents to pay Mother’s attorney’s fees. This appeal ensued.

Discussion and Decision

Issue One: Modification of Custody

[10] Grandparents appeal the trial court’s findings denying their petition to modify 

custody of A.B. from her natural mother to them. 

A party challenging a trial court’s findings in this regard will not 

succeed unless the order is clearly erroneous “and due regard 

shall be given to the opportunity of the trial court to judge the 
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credibility of the witnesses.” Ind. Trial Rule 52. A judgment is 

clearly erroneous when it relies on an incorrect legal standard. 

Shell Oil Co. v. Meyer, 705 N.E.2d 962, 972 (Ind. 1998). “We 

disturb the judgment only where there is no evidence supporting 

the findings or the findings fail to support the judgment.” Yoon v. 

Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). We do not reweigh the 

evidence; rather we consider the evidence most favorable to the 

judgment with all reasonable inferences drawn in favor of the 

judgment. Id.

T.H. v. R.J., 23 N.E.3d 776, 784 (Ind. Ct. App. 2014), trans. denied.

[11] As the trial court correctly noted, we presume that a parent, rather than a 

nonparent, should have custody of his or her child. See, e.g., Francis v. Francis,

759 N.E.2d 1106, 1113 (Ind. Ct. App. 2001), trans. denied. This presumption is 

consistent with a parent’s constitutionally protected fundamental right to raise 

his or her children. Troxel v. Granville, 530 U.S. 57, 73 (2000). The nonparent 

has the burden of overcoming that presumption by clear and convincing

evidence of “a parent’s present unfitness, or past abandonment of the child such 

that the affections of the child and third party have become so interwoven that 

to sever them would seriously mar and endanger the future happiness of the 

child.” Froelich v. Clark (In re L.L.), 745 N.E.2d 222, 230-31 (Ind. Ct. App. 

2001), trans. denied. A general finding that it would be in the child’s “best 

interests” to be placed with a nonparent is not sufficient to rebut the 

presumption. Id. at 231. Rather, only after the nonparent rebuts the 

presumption in the parent’s favor by clear and convincing evidence will the 

court move on to an analysis of whether a modification of custody would be in 
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the child’s best interests and a consideration of the Grandparent’s status as de 

facto custodians,

2

if applicable. T.H., 23 N.E.3d at 786.

[12] Here, Grandparents failed to rebut the presumption that Mother’s custody of 

A.B. is in the child’s best interests. The evidence supported the trial court’s 

findings that Mother is a fit parent. The evidence established that A.B. has a 

good relationship with Mother, Ortega, and her siblings and step-siblings. 

Mother and her husband have a safe and appropriate home for A.B., and 

Grandparents failed to show otherwise. In fact, despite Grandparents’ repeated 

complaints to DCS and DCS’s related investigations, DCS found each time that 

Mother and her home were appropriate.

[13] Grandparents also failed to prove by clear and convincing evidence that Mother 

had abandoned A.B. or acquiesced to Grandparents’ custody of A.B. such that 

A.B.’s and Grandparents’ affections had “become so interwoven that to sever 

them would seriously mar and endanger” A.B.’s future happiness. In re L.L., 

745 N.E.2d at 231. While it was undisputed that A.B. spent a significant 

amount of time with Grandparents from June 2012 to September 2015, the trial 

court found that the reason for that was Mother’s work schedule. Specifically, 

the evidence established that Grandparents provided child care to A.B. while 

Mother worked, often late at night. The trial court found that it would have 

been unreasonable for Mother to retrieve A.B. from Grandparents’ home after 

 

2

 Grandparents alleged they were the de facto custodians of A.B. pursuant to Indiana Code Sections 31-14-

13-2.5(b) and 31-17-2-8.5(b).
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she worked late at night, rather than allowing A.B. to spend the night with 

Grandparents. Moreover, the evidence established that “Grandparents were 

willing and able to watch [A.B.] while Mother worked, so the arrangement 

benefited Mother financially by not having to hire daycare, plus it allowed her 

to earn an income which permitted her to rent her own apartment for a period 

of time, and it benefited [G]randparents because they were willing, able and 

content to have [A.B.] in their care.” Appellant’s App. at 20. Thus, the trial 

court found that Mother’s acquiescence to A.B. spending so much time with 

Grandparents was for the mutual convenience of Mother and Grandparents. 

Id. at 17. And the trial court was “convinced that Mother [was] truthful” when 

she testified that “it was never her intent to allow [G]randparents to have 

custody of [A.B.].” Id. at 20. 

[14] The trial court did not commit clear error when it denied the petition to modify 

custody because Grandparents had not overcome by clear and convincing 

evidence the presumption “that [A.B.’s] best interests [were] best served by 

placement with . . . Mother.” Id. at 17. Grandparents’ contentions to the 

contrary are simply requests that we reweigh the evidence, which we will not 

do. Further, because Grandparents failed to overcome the presumption in 

Mother’s favor, we need not address A.B.’s best interests any further, nor do we 

address the de facto custodian statutory factors. T.H., 23 N.E.3d at 786.

Issue Two: Grandparent Visitation

[15] In the alternative to custody, Grandparents sought visitation pursuant to 

Indiana Code Sections 31-17-5-1 through 31-17-5-10, the Grandparent 
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Visitation Act, which authorizes grandparent visitation when a court finds such 

to be in the best interests of the child. The trial court supported its order 

denying grandparent visitation with specific findings of fact and conclusions 

thereon. Therefore, as with the custody order, we apply our well-established 

two-tiered Indiana Rule 52 standard of review: 

[F]irst, we consider whether the evidence supports the trial 

court’s findings; second, we determine whether the findings 

support the judgment. We shall not set aside the findings or 

judgment unless clearly erroneous, and due regard shall be given 

to the opportunity of the trial court to judge the credibility of the 

witnesses. We will find clear error if there is no evidence 

supporting the findings or the findings fail to support the 

judgment, or if the trial court applies the wrong legal standard to 

properly found facts.

F.M. v. K.F. (In re K.M.), 42 N.E.3d 572, 576 (Ind. Ct. App. 2015) (citations and 

quotations omitted).

[16] In proceeding under the Grandparent Visitation Act, the trial court must 

address the following four factors: 

(1) a presumption that a fit parent’s decision about grandparent 

visitation is in the child’s best interests (thus placing the burden 

of proof on the petitioning grandparents);

(2) the “special weight” that must therefore be given to a fit 

parent’s decision regarding nonparental visitation (thus 

establishing a heightened standard of proof by which a 

grandparent must rebut the presumption);
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(3) “some weight” given to whether a parent has agreed to some 

visitation or denied it entirely (since a denial means the very 

existence of a child-grandparent relationship is at stake, while the 

question otherwise is merely how much visitation is appropriate); 

and

(4) whether the petitioning grandparent has established that 

visitation is in the child’s best interests.

K.J.R. v. M.A.B. (In re M.L.B.), 983 N.E.2d 583, 586 (Ind. 2013) (quotation and 

citation omitted).

[17] Here, Grandparents contend that the trial court placed too much emphasis on 

the discord between Grandparents and Mother and failed to properly consider 

that Mother had “completely denied” them visitation since approximately 

September 2015.3 Appellant’s Br. at 23. We disagree. Conflict between the 

parent and nonparent is an appropriate consideration when determining 

whether grandparent visitation is in a child’s best interests. See e.g., Daugherty v. 

Ritter, 646 N.E.2d 66, 68 (Ind. Ct. App. 1995) (“Because the court had before it 

evidence of extensive family conflict, it could have reasonably concluded that it 

was not in [child’s] best interest for the Daughertys to exercise visitation with 

her.”), adopted, 652 N.E.2d 502 (Ind. 1995).

 

3

 Grandparents’ additional contention that the trial court “ignored” their strong bond with A.B. is without 

merit as the court repeatedly referred to that strong relationship throughout its order. See, e.g., Appellant’s 

App. at 17 (“No party disputes that a strong emotional bond formed between [A.B.] and grandparents during 

the first three years of the child’s life.”).
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[18] Moreover, it is clear that the trial court did consider the amount of visitation 

Mother wished to provide the Grandparents. The trial court found that Mother 

is a fit parent and that she had discontinued grandparent visitation because 

Grandparents “may not be willing to comply with reasonable restrictions placed 

upon them by Mother with regard to any interaction they may have with 

[A.B.].” Appellant’s App. at 23. These findings are supported by the evidence. 

When Mother had granted Grandparents visitation in the past, Grandparents 

did not always allow Mother to take A.B. back from them when she wished to 

do so. Grandparents also refused to cease taking A.B. to their store as Mother 

had requested due to what she considered to be inappropriate items sold in the 

store. Grandparents enrolled A.B. in a school without Mother’s consent, and 

Grandfather continued to visit A.B. at school even after Mother told him not to 

do so. Grandfather fought with Ortega and made repeated complaints to DCS 

about Mother and/or Ortega, even after DCS investigated and found neglect 

allegations were unsubstantiated. Yet, despite Grandparents’ lack of 

cooperation with her, Mother testified that she was, in fact, willing to grant 

Grandparents some visitation with A.B. in the future, but only if they would 

“respect the decision that [she] ma[d]e and the guidelines that can be set down” 

by her. Tr. Vol. III at 177. 

[19] The above evidence supported the trial court’s findings that:

[t]he wounds created by the decisions of the parties herein need 

time to mend; the Court’s forcing a grandparent visitation 

schedule upon the parties at this time will not improve their 

relationships, and may only further damage said relationships. 
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The Court finds that grandparents have not rebutted the 

presumption that the decision made by Mother to limit or deny 

their visitation with [A.B.] was made in [A.B.’s] best interest[s]. 

Grandparents have not demonstrated that court-ordered 

visitation is in [A.B.’s] best interest. The Court finds that it is 

contrary to the best interests of [A.B.] to grant grandparent’s 

petition for grandparent visitation.

Appellant’s App. at 23. The trial court did not commit clear error when it held

that Grandparents failed to rebut the presumption that Mother’s visitation 

decision was in A.B.’s best interests and therefore denied their petition for 

visitation. Again, Grandparents’ contentions otherwise merely request that we 

reweigh the evidence, which we will not do. 

Issue Three: Attorney’s Fees

[20] Grandparents challenge the trial court’s order requiring them to pay Mother’s 

attorney’s fees in the amount of $21,664.46. We review a decision to award 

attorney’s fees for an abuse of discretion. Montgomery v. Montgomery, 59 N.E.3d 

343, 354 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion occurs 

where the trial court’s decision is clearly against the logic and effect of the facts 

and circumstances before the court. Allen v. Proksch, 832 N.E.2d 1080, 1102 

(Ind. Ct. App. 2005). Indiana follows the American Rule, which ordinarily 

requires each party to pay his or her own attorney’s fees. Id. “Generally, 

attorney’s fees are not recoverable from the opposing party as costs, damages, 

or otherwise, in the absence of an agreement between the parties, statutory 

authority, or [a] rule to the contrary.” Id.
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[21] Initially, we note that there appears to be some confusion among the parties as 

to the statutory basis for the trial court’s attorney fee order. The trial court 

stated that it awarded Mother the attorney’s fees she incurred “in defending 

[the] action brought by [Grandparents].” Appellant’s App. at 23-24. The 

action the Grandparents brought was a petition to modify custody of A.B. 

pursuant to Indiana Code Section 31-17-2-1 through 31-17-2-26. Indiana Code 

Section 31-17-7-1 allows a trial court to award reasonable attorney’s fees to a 

party maintaining or defending a custody action. Thus, because the trial court 

did not award attorney fees under the General Recovery Rule, it was

unnecessary for the court to find that Grandparents’ claim was frivolous, 

unreasonable, groundless, or litigated in bad faith. Indiana Code Section 34-52-

1-1. Moreover, Mother is incorrect when she contends that custody actions 

under Article 17 are only commenced through divorce or child support matters. 

Appellee’s Br. at 16-17. Rather, Indiana Code Section 31-17-2-3(2) specifically 

states that a “child custody proceeding” may be commenced under Article 17 

by “a person other than a parent.” Therefore, fees can be awarded under 

Article 17 in nonparent custody actions such as this one. 

[22] Both parties in this case requested an award of their attorney fees. In order to 

award attorney fees pursuant to Indiana Code Section 31-17-1-1, “a trial court 

must consider the parties’ resources, their economic condition, their ability to 

engage in gainful employment and earn adequate income, and any other factors 

bearing on the reasonableness of the award.” Montgomery, 59 N.E.3d at 354. 

When a trial court “fail[s] to hold an evidentiary hearing in order to consider 
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these issues, [it] abuse[s] its discretion.” Allen, 832 N.E.2d at 1103, citing 

Bertholet v. Bertholet, 725 N.E.2d 487 (Ind. Ct. App. 2000) and Barnett v. Barnett, 

447 N.E.2d 1172 (Ind. Ct. App. 1984). 

[23] Here, the trial court did hold such an evidentiary hearing. During the course of 

the hearing, the parties presented evidence of their average annual earnings 

from employment, their income from other sources, their debts and the 

composition of their households. The evidence showed that Grandparents’ 

average annual employment earnings were $60,000-$70,000, and Mother’s and 

Ortega’s combined annual employment earnings were also in that range.4 Tr. 

Vol. II at 123; Tr. Vol. III at 50-51. Grandmother and Mother also each had 

student loan debts of similar amounts. Tr. Vol. II at 208; Tr. Vol. III at 127. 

However, Grandfather had civil judgments in his favor totaling approximately 

$18,000. Tr. Vol. II at 126, 139. Moreover, unlike Grandparents, Mother and 

Ortega had children in their household for whom they were financially 

responsible. Tr. Vol. III at 49-50, 152-53. Given the evidence of the parties’ 

respective economic circumstances, the trial court did not abuse its discretion 

when it ordered Grandparents to pay Mother’s attorney fees incurred in 

defending against their petition to modify custody. 

 

4

 We disregard Mother’s assertion that it is “inappropriate” to consider the income of Mother’s husband, 

with whom she lives, because he “is not a party to this action,” Appellee’s Br. at 16, since she cites no 

supporting authority. Ind. Appellate Rule 46(A)(8) and (B). 
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Conclusion

[24] The trial court did not commit clear error when it denied Grandparents’ 

petitions to modify custody and for visitation, nor did it abuse its discretion 

when it awarded Mother her attorney’s fees. 

[25] Affirmed.

Kirsch, J., and Brown, J., concur.