Court of Appeals of Indiana | Memorandum Decision 21A01-1407-DR-315 | April 8, 2015 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. 

ATTORNEYS FOR APPELLANT

Bryan Lee Ciyou 

Lori B. Schmeltzer 

Ciyou & Dixon, P.C. 

Indianapolis, Indiana 

ATTORNEY FOR APPELLEE

Vicki L. Fortino 

Hocker & Associates, LLC 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

C.R., 

Appellant-Defendant, 

v. 

V.R., 

Appellee-Plaintiff 

April 8, 2015 

Court of Appeals Case No. 

21A01-1407-DR-315 

Appeal from the Fayette Superior 

Court 

The Honorable Ronald T. Urdal, 

Judge 

Cause No. 21D01-0906-DR-444 

Friedlander, Judge. 

[1] C.R. (Father) appeals from the trial court’s order modifying child custody. On 

appeal, Father presents the following issues: 

1. Did the trial court violate Father’s due process rights by holding a 

hearing in his absence? 
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2. Did the trial court abuse its discretion in modifying custody? 

[2] We affirm. 

[3] Father and V.R. (Mother) were married and had two sons together, X.R., who 

was born in 2008, and L.R., who was born in 2009 (collectively, the Children). 

Mother and Father’s marriage was dissolved in November 2009 and Mother 

was awarded custody of the Children, with Father receiving parenting time. In 

February 2012, custody of the Children was transferred to Father based on the 

trial court’s finding that Mother had withheld the Children from Father and 

intentionally thwarted his efforts to see them by moving to Kentucky and 

establishing her sister as the Children’s legal guardian. Mother was awarded 

parenting time in accordance with the Indiana Parenting Time Guidelines. 

[4] In January 2014, Mother filed a petition to modify custody, in which she 

alleged, among other things, that Father had not allowed her to exercise 

parenting time and that Father had not provided Mother with the Children’s 

medical information. A hearing was scheduled for May 29, 2014. Two days 

before the hearing, Father filed a motion for a continuance. Although his 

attorney appeared on his behalf, Father failed to appear for the May 29 hearing, 

at which his motion for a continuance was denied. Evidence was then 

presented in Father’s absence. Specifically, Mother testified without objection 

from Father’s counsel. At the conclusion of her direct examination, Father’s 

counsel declined to cross-examine Mother, asserting that he was unable to do 

so without Father’s presence. Father’s counsel then asked the trial court to 
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reconsider his motion to continue. At that time, the trial court stated that it was 

taking the matter under advisement and told Father’s counsel that it would 

consider further hearing if counsel was able to establish that Father had a good 

reason for being absent. 

[5] Later that day, Father called the trial court’s offices and indicated to trial court 

staff that he was not aware that he was required to be in court that day. Court 

staff advised Father to contact his attorney. After receiving a letter from 

Father’s attorney, the trial court set the matter for a second hearing on June 13, 

2014.1

 Shortly thereafter, Mother filed an objection to the new hearing. 

[6] At the beginning of the June 13 hearing, the trial court stated it had been 

informed that Father had been told by his attorney’s secretary that he was not 

required to appear for the May 29 hearing because a motion for continuance 

had been filed. The trial court stated that it had spoken to the secretary and 

accepted her statement, and it was going to give Father the opportunity to 

present evidence. At that time, Mother’s counsel stated that the trial court had 

adjourned the May 29 hearing without allowing her to present all of her 

evidence, and the trial court agreed to allow her to continue her presentation. 

Mother also asked the trial court whether it would include the evidence 

presented at the May 29 hearing, and the trial court, without objection from 

Father, responded affirmatively. Thereafter, both Mother and Father presented 

 

1

 Father has not included a copy of this letter in his Appellant’s Appendix. 
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their evidence and the trial court took the matter under advisement. On July 

26, 2014, the trial court issued its order modifying custody of the Children to 

Mother, finding specifically that “the children’s relationship with their mother 

has been harmed as the result of the actions of the father and his girlfriend and 

that it is in the bests interests of the children that they are in the custody of their 

mother.” Appellant’s Appendix at 16. Father now appeals. Additional facts will 

be provided where necessary. 

1. 

[7] Father first argues that the trial court violated his due process rights by holding 

the May 29 hearing in his absence. Father’s argument in this regard has been 

waived. Father was represented by counsel at the May 29 hearing, and Father’s 

counsel did not object to Mother’s presentation of evidence on that date. 

Moreover, Father did not object to Mother’s request at the June 13 hearing that 

the trial court incorporate the evidence from the May 29 hearing. At no point 

during either hearing did Father argue that a due process violation had 

occurred. Father may not raise this argument for the first time on appeal. See 

Hite v. Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175 (Ind. Ct. 

App. 2006) (explaining that constitutional claims, including due process claims, 

may be waived when raised for the first time on appeal). 

[8] Waiver notwithstanding, Father has fallen far short of establishing a due 

process violation. The Due Process clause of the Fourteenth Amendment of 

the United States Constitution “requires notice, an opportunity to be heard, and 
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an opportunity to confront witnesses.” Morton v. Ivacic, 898 N.E.2d 1196, 1199 

(Ind. 2008). Father makes no argument that he did not receive notice of the 

May 29 hearing or that he was denied an opportunity to be heard. Instead, he 

argues only that he was denied an opportunity to cross-examine witnesses at the 

May 29 hearing. Father’s claim is without merit. Although Father was not 

present at the May 29 hearing, he was represented by an attorney. See United 

Farm Bureau Mut. Ins. Co. v. Groen, 486 N.E.2d 571, 573 (Ind. Ct. App. 1985) 

(explaining that an “attorney is the agent of the party employing him, and in 

court stands in his stead”), trans. denied. Father’s attorney had the opportunity 

to cross-examine Mother on that date, but declined to do so. 

[9] To the extent Father argues that his personal appearance was required, we note 

that Father had the opportunity to be present to cross-examine Mother, but he 

did not seize it due to his failure to appear. Although Father’s failure to appear 

might be attributable to misinformation he received from his attorney’s 

secretary, it was certainly not attributable to the trial court. In any event, any 

harm Father suffered due to his failure to appear at the May 29 hearing was 

cured at the June 13 hearing, when Father was again extended the opportunity 

to cross-examine Mother, and this time seized it. No due process violation 

occurred in this case. 

2. 

[10] Next, Father argues that the trial court abused its discretion in modifying 

custody. It is well established that we review custody modifications for abuse of 
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discretion, granting particular deference and latitude to our trial courts in family 

law matters. See Werner v. Werner, 946 N.E.2d 1233 (Ind. Ct. App. 2011), trans. 

denied. In reviewing a judgment issued with special findings of fact and 

conclusions thereon pursuant to Indiana Trial Rule 52(A), we first determine 

whether the evidence supports the findings and then consider whether the 

findings support the judgment. Id. We will reverse only if the judgment is 

clearly erroneous. Id. That is, we will reverse if our examination of the record 

leaves us with the firm conviction that a mistake has been made. Id. In making 

this determination, we consider only the evidence favorable to the judgment 

and all reasonable inferences flowing therefrom. Id. We will not reweigh the 

evidence or assess the credibility of the witnesses. Id.

[11] Pursuant to Ind. Code Ann. § 31-17-2-21(a) (West, Westlaw current with all 

legislation of the 2015 First Regular Session of the 119th General Assembly 

effective through February 23, 2015), a trial court may not modify custody 

unless the modification is in the best interests of the child and there is a 

substantial change in one or more of the factors the court may consider in 

making an initial custody award, as set forth in I.C. § 31-17-2-8 (West, Westlaw 

current with all legislation of the 2015 First Regular Session of the 119th 

General Assembly effective through February 23, 2015). I.C. § 31-17-2-8 

provides that the court “shall consider all relevant factors,” including 

specifically the following: 

(1) The age and sex of the child. 

(2) The wishes of the child’s parent or parents. 
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(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. 

(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 8.5(b) of this chapter. 

[12] In reaching its decision to modify custody, the trial court entered the following 

relevant findings and conclusions: 

3. In an Order of this Court dated February 8, 2012, primary physical 

custody of the minor children was transferred to Father with Mother 

to have parenting time according to the Indiana Parenting Time 

Guidelines (“IPTG”). 

4. Since that order Father has prevented Mother from exercising her 

parenting time on a regular basis. 

5. Since that order Father has not communicated with her regarding 

education as fully as required in I.C. 20-33-7-2 or the health 

information as required by I.C. 16-39-1-7 and there has been too 

little exchange of information as required by the IPTG. 

6. Father’s girlfriend is referred to as the children’s “mom” in most 

school communications and [Mother] is referred to as the “bio 

mom.” This relationship is interfering with and possibly replacing 

the child[ren]’s primary relationship with their mother. 
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7. There have been three unsubstantiated reports of abuse and neglect 

to the Indiana Department of Child services against the home of 

[Mother]. [Mother’s] home has been found to be appropriate for the 

children and Mother, her boyfriend . . . and his son . . . have all been 

found not to be abusive or neglectful of [X.R.] and [L.R.]. 

8. Mother does not use drugs or drink alcohol. She is currently 

pregnant but is otherwise healthy and is not taking any medications 

or seeing any physician or mental health provider. 

9. Father does not allow Mother to provide shoes or clothing for the 

boys to use in his home and the minor child [X.R.] was forbidden to 

use the glasses that Mother had gotten prescribed for him. 

10. Mother is employed and she has appropriate plans in place for the 

minor children for the hours when she is at work. She currently has 

no other children but is currently pregnant. 

11. [Mother’s boyfriend] also lives in [M]other’s home with his 8 year 

old son . . . who has Asperger’s Syndrome and although 

occasionally the boys all fight, Mother and [her boyfriend] have a 

plan in place to keep the boys from fighting. 

12. Mother believes she is the appropriate parent to have full custody of 

her children and that if she does she will make sure that Father has 

his appropriate Parenting Time. 

Appellant’s Appendix at 14-15. After considering the evidence presented, the trial 

court found that there had been a substantial change in one of the statutory 

factors, namely, the interaction and interrelationship of the Children with their 

parent or parents. Specifically, the court found that “the [C]hildren’s 

relationship with their mother has been harmed as the result of the actions of 

the [F]ather and his girlfriend[.]” Id. at 16. The trial court went on to find that 

a change in custody was in the Children’s best interests. 

[13] On appeal, Father first argues that the trial court’s finding that Father and his 

girlfriend have harmed the relationship between Mother and the Children is 

unsupported by the record because there was no evidence presented concerning 
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Mother’s relationship with the Children prior to the February 2012 custody 

order. Thus, according to Father, no change in that relationship has been 

demonstrated. We disagree. Mother testified that since the change in custody 

in February 2012, her relationship with the boys had changed for the worse. 

Specifically, she stated that the boys seem confused about who their mother is. 

Mother testified that the Children usually call her by her first name and they 

refer to Father’s girlfriend as mom. This evidence supports the trial court’s 

finding that Mother’s relationship with the Children has deteriorated since the 

change in custody. 

[14] The trial court’s finding that the deterioration of the Children’s relationship 

with Mother was caused by Father and his girlfriend is likewise supported by 

the evidence.2

 Mother testified that after Father was awarded custody in 

February 2012, she did not see the Children much at first. She testified that she 

lived two hours away from the Children and did not have a car, and Father was 

very controlling with respect to parenting time. Despite being awarded 

parenting time in accordance with the Indiana Parenting Time Guidelines, 

Mother stated that during that time, she “didn’t get much telephone time” and 

 

2

 Father argues that any problems in Mother’s relationship with the Children are due to her own parenting 

deficiencies. He goes on to list a number of these perceived deficiencies, many of which are based on events 

that occurred prior to the last change in custody, and some of which are not supported by the evidence most 

favorable to the judgment. In any event, Father’s arguments in this regard are nothing more than requests to 

reweigh the evidence and reach a conclusion opposite that of the trial court, which we will not do. See Dixon 

v. Dixon, 982 N.E.2d 24, 26 (Ind. Ct. App. 2013) (explaining that this court will not substitute our judgment 

for that of the trial court on a petition to modify custody “if any evidence or legitimate inferences support the 

trial court’s judgment”). 
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that she was seeing the Children “maybe once a month” and that “sometimes 

[she] was only allowed to go up there and spend a couple hours and then come 

back.” Transcript of May 29 Hearing a 10. She testified further that Father 

regularly withheld her parenting time, causing her to miss birthdays, holidays, 

and school activities, and that it took a letter from her attorney to prevent 

Father from withholding parenting time on Christmas. She also testified that 

she had stopped trying to talk to the Children on the telephone when they are 

with Father because every time she called, she is unable to have a conversation 

with them because they are on speaker phone and there is a television blaring in 

the background or the Children are watching Father play video games. 

[15] Father admitted that he is hesitant to allow Mother to exercise her courtordered parenting time when he feels the situation in her home is bad for the 

Children. He also admitted that he has attempted to unilaterally place 

conditions on Mother’s ability to exercise parenting time due to “negativity” he 

believed the Children were bringing home from their weekend visits from 

Mother. Exhibit Volume, Respondent’s Exhibit F. Specifically, Father told 

Mother that if she wanted to see the Children, visitation would occur in 

Wabash, where he lives, instead of Mother’s home in Plainfield. There was 

also extensive evidence presented concerning representations Father and his 

girlfriend have made to X.R.’s school regarding the Children’s relationship with 

Mother. Father’s girlfriend was listed as X.R.’s mother on some school forms, 

and on a student information sheet, Father’s girlfriend was listed as the mother, 

with the explanation that she was “Dad’s girlfriend” who X.R. “refers to as 
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mom”. Id., Petitioner’s Exhibit 1. In an email to X.R.’s teacher, Father’s 

girlfriend stated that X.R. did not have regular contact with Mother. The 

teacher forwarded the email to the school principal, who responded that Father 

had led her to believe that Mother had no custody or visitation. As a result of 

these communications, school officials became concerned that Mother would 

show up at the school unannounced and decided to practice an “intruder drill” 

as a precaution. Id. In another email to X.R.’s teacher, Father’s girlfriend 

stated that Father had decided to suspend Mother’s parenting time due to 

concerns about physical and sexual abuse in her home. A DCS investigation 

was conducted, and no abuse was substantiated. All of this evidence supports 

the trial court’s conclusion that Father and his girlfriend have worked together 

in an attempt to interfere with the Children’s relationship with Mother. 

[16] Father next takes issue with the trial court’s finding that Father has not shared 

school and health information with Mother as required by statute and the 

Indiana Parenting Time Guidelines (the Guidelines). Specifically, he argues 

that it was Mother’s burden to obtain such information on her own, and the 

trial court accordingly placed an impermissible burden on him. Father is 

correct that neither of the statutes referenced by the trial court placed a duty on 

Father to share education or health information with Mother. See Ind. Code 

Ann. § 16-39-1-7 (West, Westlaw current with all legislation of the 2015 First 

Regular Session of the 119th General Assembly effective through February 23, 

2015) (providing that custodial and noncustodial parents have equal access to 

their child’s health records); Ind. Code Ann. § 20-33-7-2 (West, Westlaw 
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current with all legislation of the 2015 First Regular Session of the 119th 

General Assembly effective through February 23, 2015) (providing that schools 

must allow custodial and noncustodial parents the same access to their child’s 

education records). As we will explain further below, however, the Guidelines 

do require Father to share information with Mother. Accordingly, we find the 

trial court’s erroneous citation of I.C. §§ 16-39-1-7 and 20-33-7-2 as additional 

sources of that obligation to be superfluous and harmless. 

[17] The Guidelines provide that 

Parents should obtain and share information about their children. 

Parents should take the initiative to obtain information about their 

child from the various providers of services. Each parent is responsible 

to establish a relationship with the child’s school, health care provider 

and other service provider. A child may suffer inconvenience, 

embarrassment, and physical or emotional harm when parents fail to 

actively obtain and share information. 

Ind. Parenting Time Guidelines, Section 1(D). Thus, while Father is correct 

that the Guidelines require each parent to establish a relationship with their 

child’s school and health care providers, they also require parents to obtain and 

share information about their children. With respect to school records and 

school activities, the Guidelines further provide as follows: 

1. School Records. Under Indiana law, both parents are entitled to 

direct access to their child's school records, Indiana Code § 20-33-7-2. 

Each parent should obtain school information on their own without 

depending on the other parent. A parent shall not interfere with the 

right of the other parent to communicate directly with school 

personnel concerning a child. The noncustodial parent shall be listed 

as an emergency contact unless there are special circumstances 

concerning child endangerment. 
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2. School Activities. Each parent shall promptly notify the other 

parent of all information about school activities, which is not 

accessible to the other parent. A parent shall not interfere with the 

right of the other parent to communicate directly with school 

personnel concerning a child's school activities. The parent exercising 

parenting time shall be responsible to transport the child to school 

related activities. 

Id. The commentary to this section requires that “[e]ach parent with knowledge 

of the child’s event should promptly inform the other parent of the date, time, 

place, and event.” 

[18] Although the Guidelines require each parent to establish his or her own 

relationship with the child’s school and obtain school information 

independently, Father fails to acknowledge that he did not timely inform 

Mother of the schools in which he had enrolled the Children. Mother testified 

that she was not informed of where X.R. was going to school until after school 

had already started. She testified further that Father had simply told her that 

L.R. was going to preschool, but he did not tell her where. It is unclear to us 

how Mother could be expected to establish a relationship with the schools and 

obtain information on her own when Father did not share even this basic 

information. 

[19] Moreover, once Mother learned where X.R. went to school, she emailed his 

kindergarten teacher and arranged and attended a conference. At the 

conference, Mother learned that the school was under the impression that 

Mother was not involved with the Children. Thereafter, she received only 

general information from the school, and she has missed all school functions 
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because she was not informed about them either by Father or the school. 

According to Mother, the school eventually stopped communicating with her 

altogether. It is reasonable to infer that the school’s refusal to communicate 

with Mother was attributable to the efforts of Father and his girlfriend to create 

the impression that Mother had no custody or visitation rights and was at best 

an absent parent. The Guidelines provide that that parents shall not interfere 

with each other’s rights to communicate directly with the school. In light of all 

these facts, the trial court’s finding that Father has not satisfied the 

requirements of the Guidelines with respect to the communication of 

educational information was not clearly erroneous. 

[20] With respect to health information, the Guidelines provide that “[i]f a child is 

undergoing evaluation or treatment, the custodial parent shall communicate 

that fact to the non-custodial parent.” Ind. Parenting Time G., Section 

1(D)(4)(a). The commentary to this subsection defines “evaluation or 

treatment” to include “medical, dental, educational, and mental health 

services.” Father plainly violated this requirement. The evidence presented at 

the hearings establishes that Father regularly sent X.R. to a therapist for months 

without informing Mother.3

 Thus, the trial court’s conclusion that Father had 

not satisfied the Guidelines’ requirements concerning the communication of 

health information was not clearly erroneous. 

 

3

 In its order transferring custody to Mother, the trial court ordered that X.R. was no longer to be seen by this 

therapist, “[e]ffective immediately.” Appellant’s Appendix at 17. 
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[21] Father next argues that the trial court abused its discretion by considering only 

one of the best-interests factors set forth in I.C. § 31-17-2-8, i.e., the interaction 

and interrelationship of the Children with Mother. Father ignores, however, 

that the trial court set forth all of the statutory factors and specifically noted that 

it had considered them. That the trial court found one of the factors to tip the 

scales in the best-interests analysis does not render its ultimate finding an abuse 

of discretion. 

[22] Father’s remaining arguments with respect to the best interests of the Children 

are nothing more than requests to reweigh the evidence and substitute our 

judgment for that of the trial court, which we will not do on appeal. As set 

forth above, the trial court’s finding that Father and his girlfriend have harmed 

the Children’s relationship with Mother and attempted to replace her in the 

maternal role is supported by the evidence. These findings support the trial 

court’s ultimate findings that there has been a substantial change in 

circumstances and that modification was in the best interests of the Children. 

Accordingly, we cannot conclude that the trial court abused its discretion in 

modifying custody. 

[23] Judgment affirmed. 

Baker, J., and Najam, J., concur.