Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 1 of 26

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

Andrea L. Ciobanu

Ciobanu Law, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Katherine A. Harmon

Jared S. Sunday

Mallor Grodner, LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kyle Andrews,

Appellant-Petiitoner,

v.

Gilliam Moorman,

Appellee-Respondent.

May 30, 2017

Court of Appeals Case No.

27A02-1610-JP-2311

Appeal from the Grant Circuit 

Court

The Honorable Mark E. Spitzer.

Judge

Trial Court Cause No.

27C01-1208-JP-431

Barnes, Judge.
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Case Summary

[1] Kyle Andrews (“Father”) appeals the trial court’s modification of custody of his 

child, T.A., in favor of Gillian Moorman (“Mother”). We affirm.

Issues

[2] The issues before us are:

I. whether the trial judge erroneously failed to recuse himself 

due to a possible appearance of impropriety;

II. whether the modification of custody is supported by 

sufficient evidence; and

III. whether the trial court erred in calculating Father’s child 

support obligation.

Facts

[3] T.A. was born in July 2011. The parties apparently lived together but had an 

acrimonious split sometime after T.A. was born. On November 1, 2013, as part 

of a paternity action filed by Father, the trial court approved the parties’ 

agreement to have joint legal and physical custody of T.A.1 The parties’ 

relationship was such that they both occasionally cursed and called each other 

names in front of T.A.; Mother sometimes called Father an “a**hole,” and 

 

1 The precise details of this agreement are not in the record before us, because any records in the case prior to 

July 1, 2014, have been sealed and are not included in the chronological case summary and are not located in 

the Odyssey case management system. See Ind. Admin. Rule 9(G)(2)(k). 
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Father sometimes called Mother a “piece of s*** and horrible mother.” Tr. pp. 

433, 457. 

[4] Both parties also have had varying degrees of mental health issues related to 

stress and anxiety. Father has not been working steadily and has been receiving 

Social Security disability payments for over a decade related to a panic attack in 

2002; he claims not to have suffered one since. He received counseling for 

several years and is on anti-anxiety medication. Much of Father’s counseling 

focused on stress related to co-parenting with Mother. Father often brought 

T.A. to these appointments, without Mother’s approval, although the counselor 

did not believe it was inappropriate for Father to do so. 

[5] Mother also has had panic attacks in the past. She has not undergone 

counseling for them but did begin taking an anti-anxiety medication in August 

2016 as needed. Mother has consistently worked at the pediatric dental practice 

of her step-father’s mother, Dr. Alice Butterworth, for twelve years. She is 

currently a dental assistant whom Dr. Butterworth praised for her ability to get 

along with children. Mother also had some physical health issues beginning in 

approximately December 2015 and culminating with a surgery in August 2016 

that appears to have corrected the issues. These issues interfered occasionally 

with Mother’s parenting during this time frame. 

[6] One of the primary areas of dispute between the parties has been T.A.’s 

education. Generally, Mother believes T.A. needs more of it in a formal setting 

while Father does not. In January 2014, a dispute between the parties with 
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respect to whether T.A. should attend preschool led to a court order requiring 

T.A. to attend preschool at Westminster Presbyterian Preschool 

(“Westminster”) in Marion two half-days per week, per Mother’s request. 

Father failed to take T.A. to Westminster on the first day he had to do so, 

which led to a contempt filing and hearing. Father apparently has consistently 

taken T.A. to preschool thereafter. 

[7] Mother believed T.A. needed to be increasing the amount of time she was in 

preschool, but Father refused to consent to anything more than two half-days 

per week. At the end of the school year in spring 2016, T.A.’s preschool 

teacher assessed her academically, as well as socially and emotionally, and 

recommended that T.A. was not ready for kindergarten, although she was near 

the cut-off age to begin attending. T.A. was the only student who attended 

Westminster for only two half-days per week; all of her classmates attended five 

days per week, either half or full days. The teacher believed T.A. would have 

benefitted from more preschool attendance. She also noted that Mother would 

discuss T.A.’s progress with her when seeing Mother at pick-ups or drop-offs, 

while Father never did so. Additionally, T.A.’s demeanor and class 

participation was stable on days that Mother was expected to pick her up from 

school, but was highly unstable on days that Father was expected to pick her 

up. After the teacher’s recommendation that T.A. was not ready for 

kindergarten in fall 2016, the parties agreed not to enroll her in kindergarten. 

Father wanted to move T.A. into a different preschool and to continue her 

enrollment of two half-days per week while Mother wanted to continue her 
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enrollment at Westminster and increase her amount of attendance. There was 

evidence Father sometimes did not respond to Mother’s texts wanting to 

discuss T.A.’s education. Also, Father refused Mother’s suggestion that T.A. 

be enrolled in extracurricular dance classes.

[8] Custody exchanges from Father to Mother often caused T.A. to cry and 

become highly emotional. Father and T.A. would repeatedly tell each other 

that they loved one another and would miss each other. Exchanges from 

Mother to Father were not accompanied by similar outbursts or comments.

[9] Mother has another child, P.T., who is about two years younger than T.A. 

T.A. and P.T. have a close older sister-younger brother relationship, and both 

attend Westminster. P.T.’s father, Zachary Thieken, is on good terms with 

Mother, and they communicate effectively regarding P.T.’s care and education, 

although they no longer have a romantic relationship. T.A. also is close to 

Thieken’s parents and considers them her grandparents as well; Thieken 

likewise is close to T.A.

[10] On April 24, 2015, Father filed a petition to modify custody, requesting that he 

be granted sole legal and primary physical custody of T.A. The trial court 

appointed a guardian ad litem (“GAL”) to evaluate the custody situation, at 

Father’s request. The GAL spoke with Mother, Father, T.A., Thieken, 

Mother’s father, Father’s mother, Father’s counselor, and Father’s psychologist. 

On December 7, 2015, the GAL filed her report with the trial court. The report 

ultimately concluded, “I think Mr. Andrews has a good support system and has 
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taken the proper steps to care for his own mental health issues and is in a better 

position to provide for the care and custody of [T.A.]. Therefore I recommend 

father Kyle Andrews be awarded sole legal and physical custody of [T.A.].” 

Ex. 5 p. 9. The GAL did not file any supplements to this report.

[11] The trial court held a two-day hearing on August 29-30, 2016. Father called as 

witnesses his counselor, mother, stepfather, Mother’s brother Thomas, and

himself; Mother called Dr. Butterworth, Thieken, T.A.’s preschool teacher, her 

mother and father, and herself. By all accounts, T.A. is a sweet, intelligent, 

well-mannered, and well-adjusted child. The only area of concern appears to be 

that T.A. is behind other children her age with respect to academics, as well as 

socially and emotionally. There also was ample evidence that both parents love 

and care for T.A. and have appropriate homes for her in Marion, and both 

Mother and Father have extended family with whom T.A. enjoys spending 

time. There was evidence presented of the parties having different parenting 

styles, with Mother’s being more structured and Father’s less so. As may be 

expected, Father’s witnesses believed he was a great parent, and Mother’s 

witnesses believed she was a great parent. Father and some of his witnesses 

attempted to portray T.A. as being frightened of Mother, which was refuted by 

Mother’s witnesses. Mother’s father expressed concern that Father’s approach 

to co-parenting was his “way or no way.” Tr. p. 359. 

[12] Caught in the middle of this situation was Mother’s brother Thomas. He has 

attempted to remain on friendly terms with Father and had recently attended a 

birthday party for T.A. hosted by Father’s family. At one time, Thomas 
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expressed concern to Father over a man Mother apparently was dating who had 

an extensive criminal history. Mother testified that she did see this man for a 

few months in early 2015 and that he had some interaction with T.A., but that 

she ceased all communication with him after learning of his criminal history. 

Thomas also confirmed that he had sent some texts to Father relating, for 

example, that T.A. appeared happy with Father or that she was afraid of 

Mother. However, Thomas testified that some of his texts had been 

misconstrued, particularly during the time of Mother’s physical illness, or that 

Father had misled him about certain matters. In the end, Thomas stated that he 

had no concerns about either Father or Mother as a parent and that he has 

observed much more of Mother’s parenting than Father’s.

[13] The GAL testified that she had not changed her opinion regarding T.A.’s 

custody since her initial report. T.A.’s teacher testified that she had attempted 

to call the GAL more than once to speak with her about the case but the GAL 

failed to return her calls. Mother also testified that the GAL never spoke with 

her mother or step-father despite her request that she do so, nor did the GAL 

ever observe Mother and T.A. together. Mother also testified that she would 

like to be awarded sole legal and primary physical custody of T.A. due largely 

to the communication issues between her and Father.

[14] Approximately halfway through the second day’s hearing, the trial court 

informed the parties:

COURT: So unfortunately this happens sometimes, and so I 

realized um, at the end of the day yesterday that I represented, I 
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didn’t make the connection, I represented Butterworth Industries 

at some point in the past when I was in private practice...

[Father’s attorney]: Okay.

COURT: . . . as a business lawyer.

[Mother’s attorney]: Okay.

COURT: So um, I’ve been on the bench for close to ten years at 

this point. It was, and I hadn’t done any work for them for a 

significant time before I had done that, but I realized, I was 

walking out, and Frank [Mother’s step-father] and Suzan 

[Mother’s mother] said hi to me.

[Father’s attorney]: Okay.

[Mother’s attorney]: Sure.

COURT: I think she would’ve been a very young kid when I first 

met them, so I don’t know that I’ve ever met any of their children 

or anything. Um, I saw Suzan in March a couple of months ago 

and said hi to her, and that’s probably the first time that I had 

seen either of them in probably fifteen years maybe, um, but I 

wanted to disclose that.

[Mother’s attorney]: Sure. 

[Father’s attorney]: Okay.

COURT: I don’t know that it’s going to make any type of a um, 

impact on any decision that I would make. Um, from my 

perspective this is a choice between two good parents I think is 
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what, the way I would characterize it, and that can’t get along 

very well together, so um, you know I’d prefer not to have to 

make the choice at all, and that, you know I want to bring them 

in and say get along. You know it’s what I want to do, but so, 

but I wanted to disclose that. I know when you get halfway into 

a custody hearing and like oh great you know, but I felt like you

know, when those types of things come up then I do disclose 

those, and let you know, and then you can take any action or 

none if you wish to, but I wanted to at least um, do that, and I’d 

be happy to answer any questions that you might have sort of 

about the extent of ...

[Father’s attorney]: Judge as long as your [sic] confident that 

your representation of that business fifteen plus years ago wasn’t 

going to uh, one way sway you or the other, then I’m perfectly 

fine. 

COURT: Alright yeah.

[Father’s attorney]: I’m absolutely fine with that. 

COURT: Yeah. Yeah. I don’t believe it would.

[Father’s attorney]: Okay.

Tr. pp. 346-48. 

[15] On September 28, 2016, the trial court entered an order granting Mother sole 

legal and primary physical custody of T.A., with Father having parenting time 

according to the Parenting Time Guidelines. The trial court noted the 

unfortunate “personal animosity” between the parties but that “both parents are 
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generally good parents, love their daughter and have her best interest at heart . . 

. .” Appellant’s App. Vol. II p. 36. The trial court further stated:

In considering the evidence, the Court is mindful that “[e]ven 

two parents who are exceptional on an individual basis when it 

comes to raising their children should not be granted, or allowed 

to maintain, joint legal custody over the children if it has been 

demonstrated . . . that those parents cannot work and 

communicate together to raise the children.” Carmichael v. Siegel,

754 N.E.2d 619, 636 (Ind. Ct. App. 2001). Unfortunately, “a 

joint custody order may simply provide a framework for the 

parents to continue the conflict which brought them to divorce in 

the first place. The conflict would just be focused solely on the 

children.” Barteau and Hopkins, Joint Custody in Indiana, 27 Res 

Gestae 320, 324 (1984). In this case, to continue the joint 

custody situation with regard to [T.A.]2 would constitute “an 

intolerable situation upon two persons who have made child 

rearing a battleground.” Aylward v. Aylward, 592 N.E.2d 1247, 

1252 (Ind. Ct. App. 1992). Thus, under the circumstances, after 

carefully weighing all of the evidence and assessing the credibility 

of the witnesses, the Court finds that a sole custody order with 

Mother as the custodial parent is in [T.A.]’s best interests.

Id. at 37.

[16] The trial court also recalculated child support but found Father personally 

owned none because the amount of Social Security payments he received 

exceeded his support obligation and the excess was a gratuity. It noted that 

Father currently is the representative payee for T.A.’s Social Security disability 

 

2 The trial court here mistakenly referred to T.A. by the middle name of her half-brother P.T.
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payments that are derivative of Father’s own benefits and ordered, “[t]he parties 

shall take such action necessary to change the representative payee for [T.A.]’s 

benefits from Father to Mother.” Id. at 38. On the child support worksheet the 

trial court granted Father parenting time credit for 96-100 overnights. 

[17] On October 7, 2016, Father filed a notice of appeal. On that same date, Father 

filed with the trial court a “Motion to Enforce Mid-Week Overnight Parenting 

Time,” which also sought to hold Mother in contempt for not allowing such 

parenting time, as well as a motion for a partial stay of the trial court’s order 

pending appeal. Appellee’s App. Vol. II p. 2.3 On October 19, 2016, the 

completion of the clerk’s record for this case was noted in the trial court’s 

chronological case summary. On November 1, 2016, after holding a hearing on 

the matter, the trial court denied all of Father’s motions. The trial court noted 

in part that it lacked jurisdiction to alter its September 28, 2016 order because 

the clerk’s record had already been completed for this appeal, but that it was not 

inclined to alter its order in any case. Father did not renew his motion to stay 

before this court.

 

3

Father has filed a motion to strike Mother’s appendix, which contains the post-trial motions and orders. 

We have denied this motion by separate order. Although not significantly impacting our analysis of the case, 

we believe we may properly take judicial notice of these motions and orders as court records under Indiana 

Evidence Rule 201(a)(2)(C) and 201(b)(5). 
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Analysis

I. Recusal

[18] The first issue we address is whether the trial judge erred in failing to sua sponte 

recuse himself after realizing he had previously performed legal work, 

apparently for a business owned by Mother’s mother and step-father, over a 

decade earlier while in private practice. Indiana Code of Judicial Conduct 

2.11(A) provides, “A judge shall disqualify himself or herself in any proceeding 

in which the judge’s impartiality might reasonably be questioned . . . .” 

Comment 5 to this rule states, “A judge should disclose on the record 

information that the judge believes the parties or their lawyers might reasonably 

consider relevant to a possible motion for disqualification, even if the judge 

believes there is no basis for disqualification.” That is precisely what the judge 

here did, and Father’s attorney expressly said she was “absolutely fine” with the 

judge continuing to preside over this case. Tr. p. 348.

[19] “A party may not lie in wait and only raise the recusal issue after receiving an 

adverse decision.” Carr v. State, 799 N.E.2d 1096, 1098 (Ind. Ct. App. 2003). 

“Waiver notwithstanding, the law presumes that a judge is unbiased in the 

matters that come before him.” Id. A judge’s prior representation of a party in 

an unrelated case does not mandate the reversal of a judgment, absent a 

showing of actual prejudice. See id. Father fails to direct us to any evidence of 

prejudice based on the judge’s representation of a business owned by Mother’s 

step-father and mother over a decade prior to the hearing in this case. 

Moreover, although Father concedes that he did not request the judge’s recusal, 
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he suggests that it was unfair to place him in the situation of asking the judge to 

recuse himself halfway through the second day of hearings in this matter. 

However, it clearly would have been much preferable to do so then and not 

now, on appeal and months after the hearing and the order modifying custody. 

There was no error in the judge declining to sua sponte disqualify himself from 

consideration of this case.

II. Modification of Custody

[20] We now address the substance of the trial court’s decision to modify legal and 

physical custody of T.A. in favor of Mother.4 The trial court here issued some 

limited, sua sponte factual findings and legal conclusions as part of its order 

modifying custody. “In such a case, the specific findings control only with 

respect to issues they cover, and a general judgment standard applies to issues 

outside the findings.” Montgomery v. Montgomery, 59 N.E.3d 343, 349 (Ind. Ct. 

App. 2016), trans. denied. We will set aside the trial court’s findings or judgment 

only if they are clearly erroneous. Id. “A finding is clearly erroneous only if 

there are no facts or inferences drawn therefrom to support it.” Id. 

Additionally, “[w]e may affirm a general judgment with sua sponte findings 

upon any legal theory supported by the evidence introduced at trial.” Stone v. 

Stone, 991 N.E.2d 992, 998 (Ind. Ct. App. 2013). Sua sponte findings control as 

to the issues upon which the court has found, but they do not otherwise affect 

 

4

Father suggests the trial court’s order is ambiguous. We believe it clearly awarded Mother sole legal 

custody and primary physical custody of T.A.
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our general judgment standard of review, “and we may look both to other 

findings and beyond the findings to the evidence of record to determine if the 

result is against the facts and circumstances before the court.” Id.

[21] We grant “‘latitude and deference to our trial judges in family law matters.’” 

Steele–Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (quoting In re Marriage of 

Richardson, 622 N.E.2d 178 (Ind. 1993)). “Appellate courts ‘are in a poor 

position to look at a cold transcript of the record, and conclude that the trial 

judge, who saw the witnesses, observed their demeanor, and scrutinized their 

testimony as it came from the witness stand, did not properly understand the 

significance of the evidence.’” Id. (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 

(Ind. 2002)). “In order to reverse a trial court’s ruling, it is not enough that the 

evidence might have supported a different conclusion.” Montgomery, 59 N.E.3d 

at 350. Rather, the evidence must positively require the conclusion contended 

for by appellant before we may reverse. Id. We may not reweigh the evidence 

or reassess witness credibility, and must view the evidence in a light most 

favorable to the judgment. Id. Although we must be highly deferential to trial 

courts in custody cases, that deference is not absolute and reversal is possible. 

Id.

[22] Pursuant to Indiana Code Section 31-14-3-6, a trial court in a paternity 

proceeding may not modify a physical child custody order unless a 

noncustodial parent shows both that modification is in the best interests of the 

child, and there has been a substantial change in one or more of the factors 

listed under Indiana Code Section 31-14-13-2. Those factors are:
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(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 sibling; and

(C) any other person who may significantly affect the 

child’s best interests.

(5) The child’s adjustment to the child’s 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.

[23] “A parent seeking modification of custody bears the burden of proving that the 

existing custody order should be altered.” Montgomery, 59 N.E.3d at 350. 

“Indeed, this ‘more stringent standard’ is required to support a change in 
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custody, as opposed to an initial custody determination where there is no 

presumption for either parent because ‘permanence and stability are considered 

best for the welfare and happiness of the child.’” Steele-Giri, 51 N.E.3d at 124 

(quoting Lamb v. Wenning, 600 N.E.2d 96, 98 (Ind. 1992)). 

[24] With respect to modification of legal custody, a trial court should specifically 

consider whether there has also been a change in one of the statutory factors 

governing awards of joint legal custody. Julie C. v. Andrew C., 924 N.E.2d 1249, 

1259-60 (Ind. Ct. App. 2010). In a paternity case, those factors are:

(1) the fitness and suitability of each of the persons awarded joint 

legal custody;

(2) whether the persons awarded joint legal custody are willing 

and able to communicate and cooperate in advancing the child’s 

welfare;

(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) whether the child has established a close and beneficial 

relationship with both of the persons awarded joint legal custody;

(5) whether the persons awarded joint legal custody:

(A) live in close proximity to each other; and

(B) plan to continue to do so;
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(6) the nature of the physical and emotional environment in the 

home of each of the persons awarded joint legal custody; and

(7) whether there is a pattern of domestic or family violence.

I.C. § 31-14-13-2.3(c).

[25] Father argues in part that we must reverse and remand because the trial court 

failed to enter specific findings indicating that it had considered the statutory 

factors for a modification of custody or that its order lacked sufficient indication 

that it had adequately considered those factors, citing primarily Green v. Green, 

843 N.E.2d 23 (Ind. Ct. App. 2006). In that case, this court reversed and 

remanded a modification of custody because the trial court did not enter any 

findings demonstrating it had considered the relevant statutory factors for a 

modification of custody. However, we believe our supreme court subsequently 

has indicated such findings are not necessary if no findings are requested. In 

Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008), the trial court failed to enter 

any findings when modifying custody, and none were requested. Our supreme 

court noted the general standard of review that a judgment will be affirmed “‘if 

sustainable upon any theory consistent with the evidence.’” Baxendale, 878 

N.E.2d at 1257 (quoting Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 240 (Ind. 

1997)). The court proceeded to affirm the custody modification based on the 

evidence in the record supporting it and made no mention of the trial court’s 

lack of findings as being problematic. Id. at 1257-58.
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[26] Here, the trial court’s sua sponte partial explanation of its order modifying 

custody did not obligate it to enter complete findings on all of the statutory 

modification factors. Rather, our standard of review is that we may affirm the 

trial court based on any evidence in the record. See id.; Stone, 991 N.E.2d at

998. The trial court’s failure to make more detailed findings, in the absence of a 

request for such findings, is not an indication that it did not carefully consider 

the evidence and correctly apply it to the law.

[27] Similarly, Father contends the trial court’s reference in its order to this court’s 

decision in Aylward v. Aylward, 592 N.E.2d 1247 (Ind. Ct. App. 1992), is fatal. 

In that case, we reversed an award of joint legal custody because it imposed “an 

intolerable situation upon two persons who have made child rearing a 

battleground.” Aylward, 592 N.E.2d at 1252. Father asserts the trial court erred 

in relying on Aylward in a case that presented issues of both legal and physical 

custody. He notes that, in Van Wieren v. Van Wieren, 858 N.E.2d 216 (Ind. Ct. 

App. 2006), this court rejected a parent’s attempt to rely upon Aylward in 

addressing a joint physical custody issue. We said that, although modification 

of joint legal custody may be a “sensible step” to take if parents have made 

child-rearing a battleground, “[i]t does not necessarily follow . . . that the same 

result must be reached with respect to a split physical custody arrangement.” 

Van Wieren, 858 N.E.2d at 222. However, as with the trial court’s findings (or 

lack thereof) regarding custody, the trial court’s legal conclusions regarding 

custody did not have to be thorough and complete. Although it did not 

distinguish between legal and physical custody when citing Aylward, there was 
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nothing wrong with it having mentioned the case, and we will proceed to 

review whether there was sufficient evidence to support a modification of both 

physical and legal custody when applying the correct legal standard.

[28] The next issue we address is whether there is sufficient evidence of a substantial 

change in circumstances of one of the statutory custody factors. Father 

contends that, by modifying custody, the trial court essentially punished him for 

his and Mother’s lack of cooperation in caring for T.A., or conversely that it 

rewarded Mother for her poor behavior. He cites Van Wieren, in which this 

court affirmed a trial court’s denial of the father’s motion to modify custody. 

The parties had an acrimonious relationship and a split physical custody 

arrangement, and this court stated, “[i]f the trial court had awarded sole 

physical custody to either party, the ‘winner’ would have been well rewarded 

for obstreperous, disrespectful, and distasteful behavior.” Van Wieren, 858 

N.E.2d at 222. 

[29] However, this statement in a case affirming a denial of modification does not 

require a trial court to deny a physical custody modification request in all cases 

where the parents have joint legal and physical custody and an acrimonious 

relationship. The facts and circumstances of each case are unique. In fact, one 

of the statutory physical custody factors that may change over time is “[t]he 

wishes of the child’s parents.” I.C. § 31-14-13-2(2). One of the legal custody 

factors is “whether the persons awarded joint legal custody are willing and able 

to communicate and cooperate in advancing the child’s welfare.” I.C. § 31-14-

13-2.3(c)(2). Here, neither parents believed the joint legal and physical custody 
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situation to which they had previously agreed was sustainable as it was causing 

too much stress to both of them and T.A. Father himself was the one who 

originally moved to modify custody, and he testified that having joint custody 

was “overwhelming challenging.” Tr. p. 180. “[J]oint custody is difficult when 

the parents are able to communicate effectively and almost always detrimental 

to the wellbeing of the child when they cannot. . . . There are times when a 

breakdown of communication between parents renders joint custody no longer 

in the best interests of the child.” In re Paternity of A.S., 948 N.E.2d 380, 387 

(Ind. Ct. App. 2011) (affirming modification of physical custody where both 

parents requested modification). 

[30] Furthermore, Father arguably is judicially estopped from now asserting that a 

modification of custody was unwarranted. “Under the doctrine of judicial 

estoppel, a party may not assert a position in a legal proceeding inconsistent 

with one previously asserted.” Hay v. Baumgartner, 903 N.E.2d 1044, 1049 (Ind. 

Ct. App. 2009), trans. denied. This doctrine prohibits a party from repudiating 

assertions in the party’s own pleadings. Plaza Group Properties, LLC v. Spencer 

County Plan Comm’n, 911 N.E.2d 1264, 1269 (Ind. Ct. App. 2009), trans. denied. 

Father clearly pled, presented evidence on, and argued that joint legal and 

physical custody between the parties was no longer feasible. It is inconsistent 

for him to now claim differently. Rather, Father’s real, viable complaint now is 

not so much that the trial court modified custody, but that it modified it in favor

of Mother. We now proceed to analyze the evidence on that point.
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[31] Father and Mother present vastly different characterizations of the evidence. 

Suffice it to say, there was ample evidence that Father and Mother do not get 

along, that each has had some mental health troubles, and that they are 

incapable of co-parenting effectively but are loving and caring parents to T.A. 

individually and have extended family who care for her too. As for which 

parent would be “better” for T.A. to have primary physical and sole legal 

custody of her, the trial court heard two days of testimony from eleven 

witnesses, nearly evenly divided between those supporting Father and those 

supporting Mother. The trial court had the unenviable Solomonic task, as is 

often this case in these situations, of making a decision about T.A.’s custody in 

light of conflicting evidence. It heard the witnesses firsthand, observed their 

demeanors, and decided the better fit for T.A. was with Mother. Under the 

facts and circumstances of this case, we cannot second-guess that decision.

[32] We note the following evidence that could have tipped the scales in favor of 

Mother having primary physical and legal custody as being in T.A.’s best 

interests. First, there was evidence that Father’s approach to educating T.A. 

was vastly different and more lackadaisical from Mother’s and that Mother’s 

desire for more schooling for T.A. would be in her best interests. Second, T.A. 

has a closely-bonded relationship with her half-brother P.T., and she would 

benefit from spending more, not less, time with him by Mother having primary 

physical custody of T.A. Third, with respect to P.T., his father testified strongly 

in support of Mother and her parenting skills and explained that they get along 

well with respect to co-parenting. This would tend to support Mother and her 
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 22 of 26

other witnesses’ testimony that co-parenting issues with respect to T.A. derive 

more from Father than Mother. Father attempts to direct us to evidence 

painting him as the better custodian for T.A., but that evidence largely was 

contradicted, such as of T.A. being frightened of Mother or of Mother 

knowingly having a romantic relationship with an habitual criminal. To 

consider Father’s evidence would require us to reweigh the evidence, which we 

cannot do. 

[33] We acknowledge the GAL recommended that Father be granted primary 

custody of T.A. Trial courts are not required to accept the opinions of experts 

regarding custody, however. Clark v. Madden, 725 N.E.2d 100, 109 (Ind. Ct. 

App. 2000). The trial court heard from more persons than the GAL did 

regarding custody, with the added benefit of those persons being subjected to 

adversarial testing. It was entitled to draw its own conclusions regarding what 

would be in T.A.’s best interests, contrary to the GAL’s conclusion.

[34] As noted, it is not impossible to reverse a trial court’s decision regarding child 

custody on appeal. Given our deferential standard of review, however, it is 

relatively rare. By way of comparison, we recently reversed a custody 

modification order in Montgomery. The trial court modified primary custody 

from the father to mother, who was living out of state, based largely on father’s 

alleged interference with mother’s parenting time. We reversed because there 

was uncontradicted evidence of the child’s positive living situation with father, 

a lack of evidence of mother’s current out-of-state living situation, and a lack of 

evidence that the father’s limited interference with the mother’s parenting time 
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 23 of 26

had substantially or continually impacted the child’s relationship with the 

mother or affected the child’s mental or physical health. Montgomery, 59 

N.E.3d at 353. Here, by contrast, the parties agreed that a change from joint 

custody was needed, there was ample evidence of Mother’s stable and positive 

living situation and ability to lovingly care for T.A., and the change of custody 

would not necessitate a change in T.A.’s locale or interaction with extended 

family and friends. The facts of this case do not present us with sufficient 

reason to second-guess the trial court’s decision to modify physical and legal 

custody in favor of Mother.

III. Child Support

A. Parenting Time Overnights

[35] Father’s first argument regarding the trial court’s child support order is really an 

attack on its parenting time order. Specifically, Father contends the trial court 

should have given him a midweek overnight visit with T.A., which would 

increase the child support credit for overnights to which he would be entitled. 

Indiana Child Support Guideline 6 provides, “A credit should be awarded for 

the number of overnights each year that the child(ren) spend with the 

noncustodial parent.” The commentary to this Guideline states in part, “If the 

parents are using the Parenting Time Guidelines without extending the 

weeknight period into an overnight, the noncustodial parent will be exercising 

approximately 96-100 overnights.” The trial court here awarded Father 

parenting time in accordance with the standard Indiana Parenting Time 

Guidelines for a child three years and older: alternating weekends, one evening 
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 24 of 26

per week (not an overnight), and all scheduled holidays. Ind. Parenting Time 

Guideline (II)(D)(1). It also awarded Father a child support credit for 96-100 

overnights.

[36] We review a trial court’s parenting time decision for an abuse of discretion. 

Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). “We will not substitute 

our own judgment if any evidence or legitimate inferences support the trial 

court’s judgment.” Baxendale, 878 N.E.2d at 1257–58. Additionally, “[t]here is 

a presumption that the Indiana Parenting Time Guidelines are applicable in all 

cases.” Parenting Time G. Scope of Application (C)(3).5

[37] Father never requested during the modification hearing that he be allowed 

midweek overnight parenting time with T.A., which would be a deviation from 

the standard and presumptively-adequate parenting time he was entitled to 

under the Parenting Time Guidelines. A party generally cannot present an 

argument or issue on appeal that was not presented to the trial court. Thomson 

Inc. v. Insurance Co. of North America, 11 N.E.3d 982, 1015-16 (Ind. Ct. App. 

2014). The first time Father mentioned the possibility of midweek overnight 

parenting time was in his post-trial motion to “enforce” it, which reflected a

mistaken belief that he was entitled to such visitation without ever requesting it. 

Appellee’s App. Vol. II p. 2. The trial court correctly refrained from 

reconsidering its parenting time order, in light of this court having already 

 

5 A trial court also must provide a written explanation if it decides to deviate downward from the Parenting 

Time Guidelines, but not if it awards more than the minimum recommended parenting time.
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acquired jurisdiction under Indiana Appellate Rule 8 after the notice of 

completion of clerk’s record was noted in the chronological case summary. See 

Crider v. Crider, 15 N.E.3d 1042, 1064-65 (Ind. Ct. App. 2014). In sum, Father 

cannot establish that the trial court abused its discretion in not awarding him 

midweek overnight parenting time where he did not request it during the 

modification hearing.6

B. Social Security Payments

[38] The final issue Father raises is that the trial court erred in ordering the parties to 

“take such action necessary to change the representative payee for [T.A.’s 

derivative Social Security disability] benefits from Father to Mother.” 

Appellant’s App. Vol. II p. 38. He directs us to 42 U.S.C. § 407(a), which 

states:

The right of any person to any future payment under this 

subchapter [regarding Social Security payments] shall not be 

transferable or assignable, at law or in equity, and none of the 

moneys paid or payable or rights existing under this subchapter 

shall be subject to execution, levy, attachment, garnishment, or 

other legal process, or to the operation of any bankruptcy or 

insolvency law.

He also notes that the Social Security Administration (“SSA”) has been tasked 

with designating representative payees for benefit payments under 42 U.S.C. §

 

6

Father, of course, was hoping to be awarded primary custody of T.A. himself, but a request for additional 

parenting time in the alternative, should the trial court award primary custody to Mother, could have been 

made at the modification hearing.
Court of Appeals of Indiana | Memorandum Decision 27A02-1610-JP-2311 | May 30, 2017 Page 26 of 26

405(j) and 20 C.F.R. §§ 404.2001-404.2065. See also Brevard v. Brevard, 328 

S.E.2d 789, 792 (N.C. Ct. App. 1985) (holding that state courts lack the power 

to direct the SSA to pay a child’s benefits to anyone other than the designated 

representative payee).

[39] Be that as it may, the trial court did not purport to order the SSA to do anything 

or to order any sort of legal process against T.A.’s derivative benefits. Rather, 

its order was directed solely to the parties and required them to take the 

necessary steps with the SSA t`o change the representative payee designation, 

with the ultimate decision of whether to make the change being left to the 

SSA’s discretion. So long as Father cooperated with Mother in seeking the

change, they would have fulfilled the trial court order’s mandate. We see no 

impropriety in the trial court’s order regarding T.A.’s derivative Social Security 

benefits. 

Conclusion

[40] The trial judge did not err in failing to sua sponte recuse himself from 

consideration of this case. There is sufficient evidence to support the 

modification of custody in favor of Mother, and there is no error in the child 

support or parenting time orders. We affirm.

[41] Affirmed.

Baker, J., and Crone, J., concur.