Court of Appeals of Indiana | Memorandum Decision 02A03-1408-DR-282 | April 10, 2015 Page 1 of 7

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.

APPELLANT PRO SE

Moussa Dahab

Fort Wayne, Indiana

ATTORNEY FOR APPELLEE

Jody Dietsch, Esq.

Dietsch Law, LLC

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Moussa Dahab,

Appellant-Respondent,

v.

Massadjitte Abdelkerim,

Appellee-Petitioner.

April 10, 2015

Court of Appeals Case No.

02A03-1408-DR-282

Appeal from the Allen Superior 

Court; The Honorable Charles F. 

Pratt, Judge;

02D07-1002-DR-103

May, Judge.
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[1] Moussa Dahab (“Father”) appeals the denial of his motion for a change of 

custody.

[2] We affirm.

Facts and Procedural History

[3] Father and Massadjitte Abdelkerim (“Mother”) were married on June 5, 1988. 

Three children were born of the marriage: Ib.D., R.D., and Is.D. On July 27, 

2012, the parties were divorced. Father was granted sole legal and physical 

custody of Ib.D., and Mother was granted sole legal and physical custody of the 

other two children. 

[4] After the divorce, Father moved to Philadelphia with Ib.D., while Mother and 

the other children stayed in Indiana. Mother had a subsequent child, who has a 

different father than her other children.

[5] Father filed for modification of custody of Is.D. and R.D. The trial court 

denied the request for modification and issued Findings and Conclusions 

Regarding Custody and Parenting Time stating:

7. The [Father] also asserts that the [sic] neither child is doing well 

academically and behaviorally.

8. In support of his contentions with regard to behavior and 

academic concerns, [Father] submitted his Exhibits (A) and (B). 

[Father]’s Exhibit (A) is a student history report for [Is.D.] for school 

years 2007-08 through 2011-12. [Father’s] Exhibit (B) is a student 

history report [for] [R.D.] for academic years 2008-09 through 2011-

12.
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9. The Court may only consider evidence with regard to 

circumstances since the last custody order (I.C. 31-17-2-21). 

Accordingly, the court will only consider academic year 2011-12 and 

the current reports.

10. While in third grade (2011-12) the school records reflect that 

[R.D.] had school infractions for violating bus rules, petty theft, failure 

to comply with instructions and false information (See Respondent’s 

Exhibit B). In contrast, [Mother]’s Exhibit (5), a Student Achievement 

Report for school year 2013-14, reflects marked improvement in the 

category of “Social/Behavior Development”. She received high marks 

in each subcategory. Except for mathematics, [R.D.]’s grades are A’s 

and B’s.

11. During school year 2011-12, [Is.D.] had school infractions for 

being tardy and for unexcused absences. He also had behaviors in 

2011 for hitting, biting, and inappropriate gestures. In April and 

March 2012 he had infractions for inappropriate sexual behavior and 

violation of bus rules. His academic scores were generally average 

except for Multidisciplinary studies and Language Arts for which he 

receive [sic] unsatisfactory marks.

12. The [Mother] caused [Is.D] to be seen by Dr. Atiya Khan of the 

Fort Wayne Neurological Center. He was diagnosed Hydrocephalus, 

ADHD and a seizure disorder. He was thereafter placed on 

medications (Petitioner’s Exhibit 2). At a school conference in April 

2014 attended by the Mother, the child was placed under an Individual 

Education Plan (Petitioner’s Exhibit 1). [Is.D.]’s Student 

Achievement Report for the 2013-14 school year reflects significant 

improvement. On it his teacher wrote “[Is.D] has been doing better 

than in the last few weeks.”

* * * * *

21. As noted in the findings herein above, the children at one point 

struggled both behaviorally and academically. Both children are now 

demonstrating improvement. Thus, this Court cannot find and 

conclude that there has been a substantial and continuing change of 

circumstances with regard to the children’s adjustment to home or 

school.

* * * * *
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. . . Accordingly, this Court cannot conclude from the evidence that a 

change of custody is necessary for the children’s welfare.

(App. at 26-29) (emphasis in original).

Discussion and Decision

[6] We first note Father proceeds pro se. A litigant who proceeds pro se is held to 

the same rules of procedure that trained counsel is bound to follow. Smith v. 

Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed. 

One risk a litigant takes when he proceeds pro se is that he will not know how to 

accomplish all the things an attorney would know how to accomplish. Id. 

When a party elects to represent himself, there is no reason for us to indulge in 

any benevolent presumption on his behalf or to waive any rule for the orderly 

and proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind.

Ct. App. 2006).

[7] Father asserts the trial court abused its discretion when denying his request for 

modification. 

We review custody modifications for abuse of discretion, with a 

preference for granting latitude and deference to our trial judges in 

family law matters. In the initial custody determination, both parents 

are presumed equally entitled to custody, but a petitioner seeking 

subsequent modification bears the burden of demonstrating that the 

existing custody should be altered. When reviewing a trial court’s 

decision modifying custody, we may not reweigh the evidence or judge 

the credibility of the witnesses. Instead, we consider only the evidence 

most favorable to the judgment and any reasonable inferences 

therefrom.
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Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010) (citations 

omitted).

[8] The trial court entered findings of fact and conclusions of law when denying 

modification.

The conclusions of law are reviewed de novo. But pursuant to Trial 

Rule 52(A), 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. Factual findings 

are only clearly erroneous where there is no support for them in the 

record, either directly or by inference; a judgment is only clearly

erroneous when it applies an improper legal standard to proper facts. 

In either case, we must be left with the firm conviction that a mistake 

has been made.

Johnson v. Johnson, 999 N.E.2d 56, 59 (Ind. 2013) (internal citations and 

quotations omitted).

[9] To modify a child custody order, the court must find modification is in the best 

interest of the child and there is “a substantial change in one (1) or more of the 

factors that the court may consider under section 8 and, if applicable, section 

8.5 of this chapter.” Ind. Code § 31-17-2-21. The factors to be considered by 

the trial court are:

(1) The age and sex of the child.

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

(3) The wishes of the child, with more consideration given to the 

child’s wishes if the child is at least fourteen (14) years of age.

(4) The interaction and interrelationship of the child with:

(A) the child’s parent or parents;

(B) the child’s sibling; and
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(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.

Ind. Code § 31-17-2-8.

[10] Father asserts that due to his educational level and language expertise, he is a 

better choice for custody of Is.D. and R.D. Father presented school records

from the 2011-12 school year wherein Is.D. had four behavioral infractions and 

R.D. had five behavioral infractions. Father testified as to his educational 

qualifications and other relevant training he has attended. However, as noted 

by Mother, these factors were in place before the original custody order. “The 

court shall not hear evidence on a matter occurring before the last custody 

proceeding between the parties unless the matter relates to a change in the 

factors relating to the best interests of the child as described in section 8 . . . .” 

Ind. Code § 31-17-2-21. Thus, the court made no error in determining the 

evidence Father presented could not have justified a modification of custody. 

See Gerber v. Gerber, 476 N.E.2d 531, 532 (Ind. Ct. App. 1985) (“modification of 
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custody is warranted only when the moving party shows a decisive change in 

conditions in the custodial home”).

[11] Mother submitted reports from the 2013-2014 school year showing Is.D. was 

involved in an Individual Education Program (IEP) and had passing grades. 

His Student Achievement Report also contains a handwritten notation that he 

had been doing better in the last few weeks.1 R.D.’s Student Achievement 

Report for 2014 showed all passing grades.2 As the evidence favorable to the 

judgment confirms the court’s finding the “children are now demonstrating 

improvement,” (App. at 21), we find no abuse of discretion in the denial of 

Father’s petition for modification. See Miller v. Carpenter, 965 N.E.2d 104, 110 

(Ind. Ct. App. 2012) (finding no justification for modification when no 

substantial change exists). 

Conclusion

[12] As Father’s evidence did not demonstrate a substantial and continuing change 

warranting modification of custody, we affirm.

[13] Affirmed.

Robb, J., and Mathias, J., concur.

 

1 On appeal, Father questions the origin of this handwritten note but he did not object when it was entered 

into evidence. Therefore, this claim is waived. See Brown v. State, 783 N.E.2d 1121, 1125 (Ind. 2003) (failure 

to make a contemporaneous objection to admission of evidence waives claim on appeal).

2

Father now admits R.D. has improved since 2011. (Appellant’s Br. at 8.)