Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Jennifer Irons Jostes Cedar Lake, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Brent S. Potoski , Appellant

- Respondent

,

v.


### Nicole R. Stotts , Appellee

- Petitioner N ovembe r 15, 2018 Court of Appeals Ca se No. 18A

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- 1285 Appeal f rom the Jasper Circuit Court The Honorable John D. Potter, Judge Trial Co urt Cause No. 37C01

- 1609

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Altice , Judge
. Case Summary

[1] Brent Potoski (Father) and Nicole Stotts (Mother) had three children (the Children) together during their fourteen

- year relationship. They ended their relationship by August 2016, and Mother moved out with the C hildren. TheCourt of Appeals of Indiana | Memorandum Decision 18A

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parties quickly filed petitions to establish child support and custody. Father sought shared legal and physical custody. In March 2017, following a short evidentiary hearing, the trial court issued an Order Establishing Paternity, Custody, Support and Visitation (the 2017 Order). Father appealed several aspects of the 201 7 Order. In a memorandum decision, we affirmed in part, reversed in part, and remanded with instructions . In re Paternity of Potoski , No.
37A03

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- 947 (Ind. Ct. App. November 15, 2017). Most notably, we held that the trial court abused its discreti on by awarding primary physical and sole legal custody to Mother without a proper consideration of the relevant st atutory factors, including evidence from before the separation.

[2] On remand, the trial court issued a new order in April 2018 (the 2018 Order). The court revised some of its findings and included new ones. With respect to custody, the trial court ordered joint legal custody and awarded primary physical custody to Mother, with Father exercising parenting time pursuant to the Indiana Parenting Tim e Guidelines (the Guidelines) . The trial court set child support at zero dollars per week.

[3] Father appeals from the 2018 Order. He argues that, once again, the trial court erred by awarding sole physical custody to Mother. Father also notes a miscalculat ion in the child support order . Like the previous appeal, Mother has not filed an appellate brief.

[4] We reverse and remand.
Facts & Procedural HistoryCourt of Appeals of Indiana | Memorandum Decision 18A

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[5] Mother and Father’s long

- term relationship ended around August 2016, when Mother moved out with their thre e minor children. Their sons K.P. and R.P were born in December 2002 and March 2006, respectively. Their daughter E.P. was born in October 2008. Although Mother and Father were never married, they were together about fourteen years and lived as a family in Jasper County, Indiana. During their relationship, both Mother and Father generally worked outside of the home, and they equally shared parental responsibilities. According to Mother, Father has always been an involved father and has a close bond wit h the C hildren.

[6] After Mother and the C hildren moved out of the family home, Mother allowed Father to have parenting time pursuant to the Guidelines. That i s, Father had the C hildren on Wednesdays and every other weekend. Father , however, desired more tim e with them . Although he did not provide Mother with money to suppo rt the C hildren during this time, he did pay for some expenses, such as clothing, shoes, phones, and haircuts. Additionally, because Mother took all of the furniture from the C hildren’s b edrooms, Father had to refurnish their bed rooms, which took time. Father was experiencing financial troubles at the time but was working through them.

[7] On September 15, 2016, Mother filed a petition to establish child support. Thereafter, on October 31, 2016, Father filed a petition for orders on custody and parenting time, in which he expressly sought “ joint custody and equal parenting time.” Appellant ’s Appendix Vol. 2 at 16. Mother responded with aCourt of Appeals of Indiana | Memorandum Decision 18A

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petition to establish paternity, seeking primary physical custody and determination of child support.

[8] On February 23, 2017, the trial court held an evidentiary hearing concerning the various petitions. Mo ther and Father each provided brief testimony. Father proposed a schedule fo r sharing equal custody of the C hildren. Mother, however, testified that she preferred to continue the current parenting schedule because “stability is in the best interest of th e children.” Transcript Vol. II at 37.

[9] The trial court issued the 2017 Order on March 27, 2017, establishing paternity, custody, support, and parenting time. T he trial court awarded legal and physical custody to Mother, “subject to [] Father’s right of parenting time as agreed by the parties with a minimum pursuant to the [Guidelines], including overnights on Wednesdays.” Appellant’s Appendix Vol. 2 at 23

. The trial court also ordered Father to pay $31.00 per week in child support, increased by an
add itional $19.00 per week to satisfy an arrearage.

[10] Father appealed the 2017 Order, and Mother did not file an appellate brief. In a memorandum decision issued on November 15, 2017, we affirmed in part, reversed in part, and remanded. Relevant here, we rev ersed the custody determination and part of the calculation of child support and remanded for reconsideration and recalculation in light of our decision. We will discuss the prior appeal in more detail below.

[11] On remand, the trial court issued the 2018 Ord er on April 23, 2018. In addition to recalculating child support, the trial court modified its order regardingCourt of Appeals of Indiana | Memorandum Decision 18A

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custody. The court ordered shared legal custody of the C hildren but granted Mother primary physical custody with Father having parenting time, at a minimum, pursuant to the Guidelines. Father appeals from this order. Additional facts will be provided below as needed.

Discussion & Decision

Standard of Review

[12] Once again, Mother has not filed an appellate brief. As a result, we will not undertake the burden of developing arguments on Mother’s behalf and will reverse if Father establishes prima facie error. See Duty v. CIT Group/Consumer Fin., Inc. , 86 N.E.3d 214, 215 (Ind. Ct. App. 2017). Prima facie, in this context, means at first sight, on first appearance, or on the face of it. Id

. This standard, however, “does not relieve us of our obligation to correctly apply the law to the facts in the record in order to determine whether reversal is required.” Wharton
v. State , 42 N.E.3d 539, 541 (I nd. Ct. App. 2015).
Custody

[13] Father argues that the trial court erred by awarding primary physical custody of the C hildren to Mother. In this regard, he contends that the trial court failed to follow our prior directive to consider the evidence regarding parenting of the
C hildren from birth, rather than focusing on the parenting schedule unilaterally imposed by Mother since separation. Additionally, Father asserts that in the 2018 Order, the trial court ignored or misrepresented certain facts.Court of Appeals of Indiana | Memorandum Decision 18A

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[14] A review of the prior appellate decision is helpful here. There, we reversed the custody determination in the 2017 order, explaining:
In this case, rather than considering the required relevant factors, the trial court appears to have crafted its own standard. The trial court based its decision partly on the f act that, following the parties’ separation, Father

– at Mother’ s insistence

– o nly exercised parenting time with the Children in accordance with the Parenting Time Guidelines. The tri al court also criticized F ather’ s financial struggles

.... The trial court found that, following the parties ’ separation, Mot her had maintained the Children’ s routines and supported them without any assistance from Father, even though both parties testified that Father cared for th e Children whenever permitted to do so by Mother and that he had provided the Children with certain items such as clothing and shoes.

It is well established that the trial court must consider all relevant factors in deciding the best interests, which speci fically includes those identified in Indiana Code section 31

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- 2. See Baxendale v. Raich , 878 N.E.2d 1252, 1254 (Ind. 2008). Furthermore, when “a trial court is making an initial custody determination, it is required to 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)]

. Here, the trial court clearly failed to take into account the relationship that both parents have had with the Children throughout their lives. Both Father and Mother testified that they shared the responsibilities in raising their Children, and both shar

ed a bond with the Children. Moreover, Father and Mother live only five minutes apart, so the Children ’ s school and bus schedules are not disrupted regardless of which parent is exercising parenting time. The trial court found that Mot her has maintained t

he Children’ s schedules since the separation, and while stability is certainly relevant in deciding the Children’ s best interests, it is only one factor forCourt of Appeals of Indiana | Memorandum Decision 18A

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the trial court to consider. The trial court should have analyzed all list ed factors

- plus an y oth er relevant considerations

- from the time of the Children’ s birth in making an award of physical custody. By simply relying on the parenting time and support provided by the parties from the time of their separation in July of 2016 until the hearing in F ebruary of 2017 as the basis for its support order, we find that the trial court abused its discretion.

Potoski , slip op. at 8

- 9 (emphasis supplied).

[15] I.C. § 31

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- 2 provides in relevant part :

The court shall determine custody in accordance with the be st 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.

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[16] After noting the statutory factors in its 2018 Order following remand, the trial

court stated :

Father requests joint physical custody with equally shared overnights and parent ing time; however, this has not been the practice as Father has been enjoying overnights on Wednesday evenings and not having equal overnights since the parties split in July of 2016 . The children are al l school aged and a fixed home and a fixed schedule would be in their best interests. Father’s proposal to have them switch residences multiple times during the week is not in the best interests of the children. Additionally, as of the hearing date, the parties’ daughter had only spent one overnight on a weekday with father usually going home to mother’s house. Father testified that the boys have to share a room and do not like to at his house and [R.P.] sleeps with him unless Fathe r’s girlfriend stays over and then he sleeps on the couch or at a friend or neighbor’s house. It is not in the best interest of [R.P.] to be demoted to couch sleeping or another residence because Father’s girlfriend sleeps over. At Mother’s house they ha ve their own beds. The children are school aged and have a set routine and schedule that has been successful since the break

- up of the parties and it should be continued. Per the evidence at trial, Mother has always been the parent who takes the kids to the doctor and signs them up for school even while the parties were together. Father does assist and take the kids to practice or games when he has them.
The age of children; their interaction and interrelationship with each other and the problem caused b y interacting with Father’s girlfriend; and each of the children’s adjustment to their home, school and community are all factors in Mother’s favor and weigh heavily in granting her physical custody.
Appellant’s Appendix Vol. 2 at 11. Based on these find ings and conclusions, the trial court granted Mother primary physical custody of the Children, “subject toCourt of Appeals of Indiana | Memorandum Decision 18A

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Father’s right of visitation, at a minimum, pursuant to [the Guidelines] including his Wednesday overnight visitation.” Id. at 11

- 12.

[17] Our review of the 2018 Order reveals that the trial court continued to focus almost entirely on the seven - month period between the parties’ separation and the evidentiary hearing. This was improper. The record establishes that Mother and Father had raised the Children tog ether since birth. Over those fourteen years, t hey both worked outside the home and equally participated in caring for the Children . Mother testified that Father was an involved father, active in the Children’s lives, and closely bonded with the Chil dren. Further, the trial court’s one reference to the period prior to separation was wrong. The court found that Mother had always been the parent who took the Children to the doctor and signed them up for school. On the contrary, Mother testified that she has done these things as the primary caregiver since the separation because she has them the majority of the time now.

[18] After the separation, Fat her sought to have additional parenting time with the Children, but Mother demanded that they follow the Guidelines. Thus, within three months, Father filed a petition for orders on custody and parenting time, in which he sought “joint custody and equal p arenting time.” Id. at 16. At the hearing, Mother acknowledged that there was no reason Father should not have more parenting time than the minimum set out in the Guidelines. She simply indicated that she did not feel Father’s proposed parenting schedul e was in the Children’s best interests because “they would have more stability” if they would continue on the current schedule. Transcript Vol. II at 37

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[19] The trial court observed that the Children are all school aged and concluded that a fixed schedule would be in their best interests. This, however, does not establish why Mother’s proposed schedule is better than Father’s proposed fixed schedule. The trial court noted that Father’s schedule would have the Children switching residences multiple times e ach week. But in reality, the same number of switches occur under Mother’s schedule

– the Children just stay shorter periods with Father. Further, the trial court ignored the fact that “Mother and Father live only five minutes apart, so the Children’s sc hool and bus schedules are not disrupted regardless of which parent is exercising parenting time. ” Potoski , slip op. at 9.

[20] Interestingly, we observe that the trial court made little mention of Mother’s residence, noting only that the Children had their ow n beds there. This is true because Mother emptied the Children’s bedrooms when she moved out with them. Father, at a difficult financial time in his life, then had to refurnish the bedrooms over the next several months. This was the sole reason that E.P . had not yet spent many over nights with Father. With respect to R.P.’s dislike of sharing a room with K.P., the record is silent as to whether they have their own rooms at Mother’s home. Father lives in the three

- bedroom home that the Children grew up i n, so it appears likely that R.P. and K.P. have always shared this room. In any case, we cannot agree with the trial court’s statement that R.P. is “demoted to couch sleeping” when Father’s girlfriend spends the night. Appellant’s Appendix Vol. 2 at 11. Rather, R.P. has chosen not to sleep in the room he shares with his older brother.Court of Appeals of Indiana | Memorandum Decision 18A

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[21] Although the trial court did not expressly apply a presumption in favor of Mother in the 2018 Order, we conclude it effectively did just that by focusing on the short per iod of separation rather than the years of co

- parenting before. As Father has established prima facie error, we reverse the custody order and direct the trial court, on remand, to issue a custody order in which Mother and Father share equal parenting time

. Child Support

[22] Additionally, Father notes that the trial court erred when recalculati ng child support after remand. 1 The mistake is evident on the face of the child support worksheet. The total child support obligation (Line 5 of the worksheet) should be $507.48 ($396.00 + $86.04 + $25.66) rather than $477.48 . Using the correct sum results in a weekly support obligat ion by Father of approximately $10 per week. Of course, the child support amount will change with Father’s increased parenting time. On remand, the trial court is directed to recalculate child support based on the new division of parenting time.

[23] Reversed and remanded.
Brown, J. and Tavitas, J., concur.

1 The miscalculation was actually in favor of Father.