Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 1 of 33

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

Luisa M. White

Lafayette, Indiana

Lesley A. Meade

Lafayette, Indiana

ATTORNEY FOR APPELLEE

Richard D. Martin

Frankfort, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Michael Bousum,

Appellant-Petitioner,

v.

Amber Bousum,

Appellee-Respondent.

July 15, 2019

Court of Appeals Case No.

18A-DR-2786

Appeal from the

Clinton Superior Court

The Honorable Justin H. Hunter, 

Judge

Trial Court Cause No.

12D01-1109-DR-372

Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 2 of 33

Case Summary

[1] As part of their dissolution of marriage in 2012, Michael Bousum (Father) and 

Amber Bousum (Mother) agreed to joint legal and physical custody of their 

minor son, X.B. After Father learned of inappropriate sexual conduct 

occurring in 2017 between X.B. and Mother’s then-boyfriend’s two minor 

children, Father sought sole physical custody of X.B. Father now appeals the 

trial court’s order that denied his request to modify custody, ordered him to pay 

weekly child support, and ordered him to pay a portion of Mother’s attorney

fees. Mother requests that this court assess appellate fees against Father for 

substantive and procedural bad faith.

[2] We affirm.

Facts & Procedural History

[3] Mother and Father were married in 2007 and are the parents of one child, X.B., 

born in April 2008. Mother also has three older daughters, K.K. and twins, 

K.B. and F.B. In September 2011, Father filed a petition for dissolution of 

marriage. Due to contested custody, a guardian ad litem (GAL) was 

appointed, Judy Afflerbach, and she filed a report (Prior GAL Report) with the 

trial court. Thereafter, the parties entered into a Settlement Agreement that

provided that the parties would share joint physical and legal custody of X.B. 

Because parenting time was equal and Father was paying certain expenses 

associated with X.B., the parties agreed that a deviation from the Indiana Child 

Support Guidelines was appropriate and “neither party shall pay any direct 
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 3 of 33

support obligation to the other at this time.” Appellee’s Appendix Vol. II at 5. 

The Settlement Agreement provided that when X.B. reached school age, he 

would be enrolled in the Clinton Prairie school district. The trial court 

incorporated the parties’ Settlement Agreement into the Decree of Dissolution 

and dissolved their marriage on October 29, 2012.

[4] At the time of the dissolution, Father was dating and living with Nicole, whom

he later married.1

 Father and Nicole moved from Colfax, Indiana, which is in 

Clinton County, to a home in Clarks Hill, Indiana, in Tippecanoe County. At 

the time of the dissolution, Mother was dating and living with a man, who had 

a criminal history and was, according to Mother, an alcoholic. Mother ended 

that relationship in 2012, and at some point thereafter began dating Justin. 

Justin lived with Mother, and he exercised his alternating weekends of 

parenting time with his two minor children, son T.H. and daughter K.H., at the 

home he shared with Mother. 

[5] On a Saturday in May 2017, nine-year-old X.B. shared with Mother that he and 

T.H, who was twelve, had engaged in sexually inappropriate behavior. T.H.’s 

eleven-year-old sister K.H. was also sometimes involved. Although X.B. asked 

Mother not to tell Father, she contacted Father that day, and they agreed to 

meet at the Frankfort office of the Indiana Department of Child Services (DCS) 

on the upcoming Monday. Mother went to the DCS office to make a report 

 

1 Nicole is Father’s fourth wife.
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and was instructed she had to call the 1-800 phone number to do so, which she 

did. Father was not at the DCS office, and when Mother contacted him, he 

told Mother that he had called the police reporting a suspected rape of X.B. 

[6] Clinton County Sheriff’s Department Detective Daniel Roudebush investigated. 

At DCS’s recommendation, X.B. was forensically interviewed on May 22, 

2017, at Quintin’s House Advocacy Center. Detective Roudebush observed the 

interview. During his investigation, Detective Roudebush interviewed T.H. 

and K.H. and learned that there had been some incidents that occurred at 

Mother’s residence and another incident involving two other children at a 

neighbor’s home. Detective Roudebush learned that there appeared to have 

been ten to fifteen incidents between X.B. and T.H. and one or two more that 

also involved K.H. As to the incidents occurring at Mother’s home, police 

believed they occurred mostly at night after Mother and Justin had gone to bed, 

but a couple of instances occurred during daytime hours. 

[7] Meanwhile, believing that T.H, who was older and physically larger than X.B., 

had been bullying X.B. and that the sexual acts, which may have included anal 

penetration, had been forced upon X.B., Father took X.B. to the emergency 

room on May 22 for examination. The emergency room physical examination 

did not reveal any issues, but at the direction of emergency room personnel, 

Father took X.P. to the family pediatrician. At that doctor’s recommendation,

Father contacted a sexual trauma counselor, Jill Zimmer, for X.B. to begin 

counseling sessions. Father did not consult with Mother before taking X.B. to 

the emergency room, the pediatrician, or the initial meeting with Zimmer. 
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Mother learned of the counseling when she was informed that she needed to 

sign a release for X.B. to receive the counseling treatment.

[8] On June 2, 2017, Father filed a Verified Petition to Modify Custody, Parenting 

Time and Child Support and Request for Expedited Hearing (Petition to 

Modify). He also filed, in a separate court and on X.B.’s behalf, a request for 

protective order against T.H. In his Petition to Modify, Father asserted, in part, 

that he took X.B. to the emergency room on May 22 after X.B. had told him 

that he was sexually assaulted by Mother’s boyfriend’s twelve-year-old son and 

that it had been ongoing for a month, that DCS had been contacted, and that 

the Clinton County Sheriff’s Department was currently investigating. Father 

further alleged:

5. The Mother is not meeting the medical, physical and 

psychological needs of the minor child while in her care and the 

child is not thriving under the current custodial arrangement.

6. There has been a substantial and continuing change of 

circumstances and it is now in the best interests of the minor 

child that the Father, Michael Bousum, be granted sole physical 

custody of his son.

7. That the court change parenting time at its discretion and what 

is in the best interest of the child.

8. That a modification in child support is warranted to reflect the 

new custodial arrangement.
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Appellant’s Appendix Vol. II at 29. In August 2017, the trial court re-appointed 

GAL Afflerbach, subject to her acceptance, and directed the GAL to prepare a 

supplemental report. GAL Afflerbach, however, declined the appointment. On 

September 26, 2017, Cynthia Harmon was appointed as GAL in the case. 

[9] After conducting an investigation, Deputy Roudebush spoke to the county’s 

chief deputy prosecutor, and it was determined that no criminal charges would 

be filed in the case, as “the activity appeared to be mutual in that it appeared to 

be exploration” and “while inappropriate,” law enforcement did not believe it 

was criminal in nature, nor did they believe that there had been a lack of 

parental supervision or neglect. Transcript Vol. 1 at 46. Detective Roudebush 

noted that, in his opinion, both parents displayed “appropriate responses,

appropriate concerns for what was going on” and were “taking action and 

trying to correct it and mak[e] sure the right thing was done.” Id. at 48. 

[10] Similarly, DCS family case manager Morgan Smith determined that allegations 

of child abuse or neglect were unsubstantiated and that X.B. did not need 

services. FCM Smith did not find any lack of supervision by either parent, but 

prepared a Safety Plan, to keep the children involved separated and, if together, 

supervised. The Safety Plan also recommended that Justin’s alternating 

weekends with T.H. and K.H. not correspond to X.B.’s time at Mother’s home. 

The Safety Plan recommended seeking counseling for the children involved. 

On June 19, 2017, Mother, Justin, and the mother of T.H. and K.H. signed the 

Safety Plan. Father did not, as he disagreed with the finding that the report was 

unsubstantiated. 
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[11] Sometime between the events of May 2017 and the fall of 2017, Mother and 

Justin ended their relationship, and he moved out of the residence. In October 

2017, Mother moved from Colfax to Frankfort, Indiana. In November 2017, 

Mother’s boyfriend, Richie, moved into her residence.

[12] X.B. continued to attend weekly counseling with Zimmer from June 2017 to 

December 2017, when he was released from treatment. The sessions usually 

were between Zimmer and X.B. only, but Father and Nicole participated in a 

couple of sessions. Mother took X.B. to a few sessions, but did not participate, 

as she believed she was not permitted to do so. Zimmer’s diagnostic impression 

of X.B. was adjustment disorder unspecified. 

[13] The trial court initially scheduled a hearing on Father’s Petition to Modify for 

July 17, 2017, but it was continued a number of times and reset for April 11, 

2018. On April 1, 2018, GAL Harmon emailed her report to counsel for both 

parties, and on April 2, 2018, she filed it with the court. Mother filed an 

Objection to Introduction of Guardian ad Litem Report and Request for 

Continuance of Hearing, asserting that the report was not timely filed prior to

the scheduled hearing and that the report contained matters that occurred 

before the dissolution. On April 24, the trial court reset the hearing for May 24. 

On May 23, Mother filed an Objection and Motion to Strike References to 

Former Guardian ad Litem’s Report and Recommendations in Report of 

Guardian ad Litem, arguing that the report included matters that occurred 

before the decree of dissolution and referred to the Prior GAL Report that “was 

never introduced in evidence, is not part of the record herein[.]” Appellant’s 
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Appendix Vol. II at 69-70. Mother’s Motion to Strike asked the trial court to 

strike or disregard references to the Prior GAL Report “and/or 

recommendation contained in the current Guardian Ad Litem Report.” Id. at 

70. 

[14] The hearing on Father’s Petition to Modify commenced on May 24, 2018, and

continued on June 21 and August 28. Before the presentation of evidence, and 

after receiving argument from the parties on Mother’s Motion to Strike, the trial 

court denied Mother’s Motion to Strike. In doing so, the court observed that 

because the parties reached a Settlement Agreement during dissolution, “There 

wasn’t [] a hearing to adjudicate the issue of custody. And so I [] think it is 

necessary that I understand a context.” Transcript Vol. 1 at 12. 

[15] During the three days of hearings, Father called, among other witnesses, GAL 

Harmon. Her report was admitted over Mother’s objection. In preparing her 

report and making her recommendation, GAL Harmon considered DCS’s 

report, the parties’ answers to interrogatories that she had sent them, medical 

records, X.B.’s forensic interview, and the Prior GAL report. She also spoke 

directly to Zimmer. She did not speak to Detective Roudebush or to DCS 

FCM Smith.

[16] GAL Harmon recommended that it was in X.B.’s best interest that the parties 

continue to share joint legal custody but that Father have primary physical 

custody of X.B. with Mother having, at a minimum, parenting time provided by 
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the Guidelines and at other times as the parties agree. When asked to explain 

what concerns led her to make that recommendation, she explained, in part:

[T]here was extensive inappropriate behaviors going on between 

these children that should not have happened. I mean I know I 

heard the testimony that by both DCS and by the police that 

there was [] no neglect involved. Um and I would probably agree 

with that. But for something to . . . be able to go on that long 

and nobody catch it nobody notice it, that’s disturbing to me. I

was disturbed that DCS didn’t substantiate at least do an 

informal adjustment and make sure all children involved received 

the counseling that they needed. . . . Um for a nine year old that 

the actions that I um saw in the report and from the forensic 

interview it was not just a little bit of exploration. To me it went 

well beyond that. And I think it was damaging to these children. 

Id. at 67. GAL Harmon said there was nothing inappropriate about Mother’s 

actual home, but felt that “situations” in her house may have made the 

misconduct between the children “easier to happen,” observing that Mother 

“had gone through at least two relationships during the time of [her] 

investigation,” which caused Harmon some concern. Id. at 68. GAL Harmon 

viewed it as a “pattern of behavior” that “can tend to cause more difficulties in 

a home and things can happen as they did” here. Id. at 71. GAL Harmon 

opined that being primarily with Father was in X.P.’s best interests for 

“stability, for watching for future problems,” and if they do occur, “[Father]’s 

going to seek out the assistance and help” for X.B.’s needs. Id. at 76.

[17] Zimmer also testified for Father. She was a therapist with the Indiana Center 

for Children and Families, and she saw X.B. usually once a week. According 
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to Zimmer, X.B. shared with her that he sometimes felt bullied by T.H. and that 

T.H. and Justin had laughed at X.B. because he did not know what 

pornography or pole dancing was. Zimmer recalled that X.B. became 

physically ill and had to leave the room when describing an incident when he 

performed oral sex on T.H. at Mother’s home. When asked why Father 

participated in some of X.B.’s sessions and Mother did not, Zimmer explained 

that Mother did not ask to participate and that she did not ask Mother back to 

join them based on X.B.’s wishes. Zimmer characterized X.B. as “a very 

emotionally intelligent” child, and she felt both parents were supportive of X.B. 

Id. at 137. In Zimmer’s opinion, Father had the more stable home, which she 

based in part on the fact that X.B. had told her that Mother “had a lot of 

boyfriends at different times,” and Zimmer felt that “if you have a lot of people 

moving in and out of the house” it can cause friction, tension, or a worse 

situation, as happened in the current case. Id. at 148.

[18] Father testified that he and Nicole currently lived in a three-bedroom house in 

Clarks Hill, in Tippecanoe County, X.B. is his only child, X.B. has his own 

bedroom at the house, and Nicole has no children. Father testified to having 

concerns about the living arrangement at Mother’s home, specifically her dating 

and bringing different men to live in the home. He at first did not have 

concerns with Justin living with Mother, but then began to believe that X.B. 

was being bullied by T.H. When he would raise his concerns to Mother, she 

would “play[] it off” and say “boys are boys.” Transcript Vol. 2 at 9, 11. Father 

acknowledged that without notifying Mother, he took X.B. to the emergency 
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room, the pediatrician, and then for an initial consultation with Zimmer, but he 

explained that Mother was out of town on vacation and that his focus at that 

point “was completely on X.B.” Id. at 20. 

[19] Father’s main concern with Mother and her parenting was that “at times she is 

more self oriented than family oriented,” moving from one boyfriend to 

another, such that his concern is “who’s gonna live there next,” and that this 

had been “an ongoing concern.” Id. at 25. On cross-examination, Father 

acknowledged that he was “perturbed” with FCM Smith and DCS about their 

conclusion that the matter was “unsubstantiated” and that he was told by FCM 

Smith to speak to her supervisor in any future communication. Id. at 33. 

Father agreed that X.B. was released by Zimmer but that he believed X.B. 

suffered trauma as a result of what occurred between X.B. and Justin’s children

and that he had concerns for X.B.’s mental state in terms of issues that may

“show up in the future.” Id. at 40.

[20] Father testified that he works for Frito Lay as a maintenance mechanic from

7:00 a.m. to 3:30 p.m., making $31.88 per hour, and that he usually works 

forty-eight hours per week. He stated that, year to date, he had earned $62,000, 

and in 2017, he made around $90,000. He stated that neither he nor Mother 

were currently living in the Clinton Prairie school district, although X.B. had 

been continuing to attend school there, with Mother’s older daughters driving 

him to school. Father stated that, if he were to gain primary custody, X.B. 

would get picked up by a bus and go to the Tippecanoe County school district.
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[21] Mother testified that in October 2017 she moved from Colfax to Frankfort, 

where she rents a five-bedroom home, in which her three daughters and one 

grandchild also live, along with her boyfriend Richie, who has no children. 

X.B. has his own bedroom at her home. Mother described that X.B. has a very 

good relationship with her older daughters.

[22] Mother stated that when X.B. told her about the inappropriate contact, she 

separated the kids, and she and Justin tried to talk with them about it, but they 

were not forthcoming with information. She stated that she promptly told 

Father, although X.B. had asked her not to. She and Father agreed to meet at 

DCS but Father instead took X.B. to the emergency room without telling her. 

She also was not told about the pediatrician or the counselor, until she was

contacted to sign release papers. Mother testified that Father had told her she 

would not be allowed to participate in counseling, which Father denied having 

said. Around the same time as all of this was happening, Mother had a preplanned trip to North Carolina to see her grandmother, and DCS told her to go 

and take X.B., to keep his life normal, but that Father would not let her take 

X.B. on the trip. She signed DCS’s Safety Plan, although she “thought it was a 

little much,” given that the children were not “ever gonna be around each other 

again.” Transcript Vol. 1 at 210.

[23] With regard to the conduct between X.B. and Justin’s children, Mother stated 

that she did not believe X.B. was the victim of bullying or sexual assault, as 

Father asserted. Rather, in her view, 
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[T]hree children participated in acts that they were not suppose 

[sic] to participate in. [X.B.] fully participated with the other two 

children as well. He did things to a little girl.2

Id. at 246. Mother testified that she had no further concerns about what 

occurred because she was no longer dating Justin and X.B. was no longer 

around T.H., and X.B. had been cleared from a therapist. Mother presented 

evidence that X.B.’s grades had not suffered as a result of the situation, that he 

was doing well, attending school, and participating in football. She believed 

that it was in X.B.’s best interests for the joint physical custody arrangement to 

continue.

[24] Mother asked the trial court to order Father to pay child support. She testified 

that she also works at Frito Lay, where she has worked for the last six years 

and, previously, for another seven years. Mother testified that she works in the 

sanitation department and earns $18.36 per hour. Mother offered a proposed 

child support worksheet, which was admitted over Father’s objection at the 

hearing. 

[25] The trial court took the matter under advisement, and the parties each 

submitted proposed findings of fact and conclusions. The trial court issued its 

Findings of Fact, Conclusions of Law and Order on September 24, 2018, 

denying Father’s request to modify custody. It found that Father had failed to 

 

2 Mother later clarified that she was referring to K.H.
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establish a change in the Ind. Code § 31-17-2-8 factors and failed to establish 

that a modification of the existing custody arrangement was in X.B.’s best 

interests. The trial court granted Mother’s request to establish child support, 

ordering Father to pay $106 per week. The court found that Father was in 

arrears in the amount of $6572 due to retroactive modification and ordered 

Father to pay an additional $25 per week toward the arrearage. It also ordered 

Father to pay $4500 in attorney fees to Mother’s counsel. Father filed a motion 

to correct error, which the trial court summarily denied. Father now appeals. 

Discussion & Decision

[26] At Mother’s request, the trial court in this case entered special findings of fact 

and conclusions thereon pursuant to Trial Rule 52(A). Our review of such 

findings and conclusions is two-tiered. Coulibaly v. Stevance, 85 N.E.3d 911, 915 

(Ind. Ct. App. 2017). First, we consider whether the evidence supports the 

findings, and second, whether the findings support the judgment. Id. The trial 

court’s findings and conclusions will be set aside only if they are clearly 

erroneous—that is, where a review of the record leaves us with a firm 

conviction that a mistake has been made. Id. at 915-16. In conducting our 

review, we will neither reweigh the evidence nor judge the credibility of 

witnesses. Id. at 916. Instead, we consider only the evidence favorable to the 

trial court’s judgment. Id. 
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I. Child Custody

[27] Father contends the trial court should have granted his request to modify 

custody. We review the trial court’s decision to modify custody for an abuse of 

discretion, giving wide latitude and deference to the trial court. Collyear-Bell v. 

Bell, 105 N.E.3d 176, 183 (Ind. Ct. App. 2018) (citing Kirk v. Kirk, 770 N.E.2d 

304, 307 (Ind. 2002)). We do not reweigh the evidence or judge the credibility 

of the witnesses. Kirk, 770 N.E.2d at 307. It is not enough that the evidence

might support some other conclusion, but it must positively require the 

conclusion contended for by appellant before there is a basis for reversal. Id. 

[28] Pursuant to Ind. Code § 31-17-2-21, a trial court may not modify an existing 

custody order unless the modification is in the best interests of the child and 

there has been a substantial change in one or more of the statutory factors set 

forth in I.C. § 31-17-2-8. Collyear-Bell, 105 N.E.3d at 184. Those factors 

include:

(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;
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(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[.]

Thus, to support custody modification under I.C. § 31-17-2-21, the following is 

required: (1) a finding by the trial court that change would be in the child’s best 

interests, (2) a consideration of the factors listed above, and (3) a finding that 

there has been a substantial change in one of those factors. Collyear-Bell, 105 

N.E.3d at 184.
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a. Prior GAL Report

[29] Father raises a number of challenges to the trial court’s decision to deny his 

Petition to Modify, one of which is that the trial court erred when it gave 

limited consideration to matters in GAL Harmon’s report concerning the Prior 

GAL Report. In particular, Father challenges the trial court’s Findings of Fact 

6 and 7 and Conclusion 8 which state:

6. The former Guardian Ad Litem’s report was not admitted 

into evidence and the parties did not have an opportunity to 

cross-examine Ms. Afflerbach regarding her report and 

recommendations. 

7. The Court previously denied Mother’s Motion to Strike related 

to the former Guardian Ad Litem’s report and recommendations, 

but gives limited weight to any testimony or references to the 

former Guardian Ad Litem’s report and recommendations.

* * * *

8. The prior Guardian Ad Litem’s (Judy Afflerbach) report was 

not received in evidence at a hearing at which the parents had a 

right to cross-examine said Guardian Ad Litem with respect to 

her recommendation; Keen v. Keen, 629 N.E.2d 938, 940 (Ind. Ct.

App. 1994)

Appellant’s Appendix Vol. II at 18, 24.

[30] We find no reversible error with regard to these findings and conclusion or with 

the trial court’s manner of handling the Prior GAL Report. The findings and 

conclusion correctly observe that the Prior GAL Report was never admitted 
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into evidence (having only been filed with the court prior to the decree) and, 

because it was never presented at a hearing, its author was never subject to 

cross-examination. Furthermore, as Finding 7 recognizes, when Mother sought 

to strike Harmon’s GAL Report or portions of it that referred to the Prior GAL 

Report, the trial court denied Mother’s request, thus allowing those references to 

remain in Harmon’s report, which the trial court admitted. 

[31] At the hearing, when Mother “renew[ed] [her] objection as to references to the

[Prior GAL Report]” the trial court sustained the objection, because it had 

never been admitted in evidence, but stated:

[C]ertainly [Harmon] can consider it. It helps her understand the 

context. . . . but . . . I don’t know that I have to hear the 

specifics of that [Prior] GAL Report . . . that were . . . not 

admitted to evidence. It may have been filed with the Court but 

not admitted to evidence in any prior hearing. So you may 

continue with questions just not uh specifically like [“]hey What 

did that say[”] . . . kind of thing[.] 

Transcript Vol. 1 at 69. Thus, the trial court found that it was permissible for 

GAL Harmon to consider the Prior GAL Report when making her 

recommendation,3 but found it neither necessary nor appropriate for Harmon to 

testify as to the specific contents thereof. Father has not established that the 

 

3 We note that I.C. § 31-17-2-12(b), regarding a court-ordered investigation and report in child custody 

matters, provides, in part: “In preparing a report concerning a child, the investigator may consult any person 

who may have information about the child and the child’s potential custodial arrangements. . . . [T]he 

investigator may consult with and obtain information from medical, psychiatric, or other expert persons who 

have served the child in the past without obtaining the consent of the parent or the child’s custodian.”
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trial court’s decision was clearly erroneous. Father additionally challenges that 

– as stated in Finding 7 – the trial court gave Harmon’s references to the Prior 

GAL Report “limited weight.” Appellant’s Appendix Vol. II at 18. However, it 

was well within the trial court’s discretion to determine what weight to give 

such evidence. 

[32] Father also claims that the trial court should have taken judicial notice of the 

Prior GAL Report. While Ind. Evidence Rule 201(a)(2)(C) permits trial courts 

to take judicial notice of court filings and contents of pleadings in the case 

before it, we find no authority that a trial court is required to do so, nor does 

Father provide any. In this case, the trial court permitted GAL Harmon to rely 

on and refer to the Prior GAL Report when preparing her own report, which it 

admitted into evidence. Father has not established any error with the trial 

court’s decision to not take judicial notice of the Prior GAL Report. 

b. Sustaining Objections / Mother’s Prior Conduct

[33] In a related vein, Father contends that the trial court erred “in sustaining 

[Mother’s] objections to testimony and evidence [regarding matters] that 

occurred [] before the last court order.” Appellant’s Brief at 20. Father does not 

identify what specific evidence was offered and excluded, or the basis of any 

objections, only citing generally to Transcript Vol. I pages “69149-150[,]” id. at 

22, presumably referring to pages 69 and 149-50. This is an insufficient basis to 

challenge the trial court’s evidentiary rulings, and the issue is waived. Ind. 

Appellate Rule 46(A)(8); Ind. Evidence Rule 103(a)(2). 
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[34] Waiver notwithstanding, we recognize that the gist of Father’s claim is that the 

trial court should have allowed more testimony about matters that occurred 

prior to the dissolution decree, in particular with regard to what he claims was

Mother’s “pattern of behavior [and] lifestyle choices” that “began before [the 

Decree] and continued after” and “caused a substantial change” in the I.C. §

31-17-2-8 factors. Appellant’s Brief at 11-12. He challenges the trial court’s 

Conclusions 3, 5, and 6, which state, in part:

3. In considering these factors, the trial court’s inquiry is strictly 

limited to consideration of changes in circumstances which have 

occurred since the last custody decree. 

* * *

5. It is a well settled rule of law that the modification hearing 

cannot be used to retry the issues settled by the divorce decree.... 

6. Evidence of conduct of the parties prior to the entry of a 

Decree of Dissolution is properly excluded. 

Appellant’s Appendix Vol. II at 23 (quotations and citations omitted). Father

asserts that these conclusions “fail to consider” I.C. § 31-17-2-21(c) (Subsection 

21(c)), which provides that a trial court “shall not hear evidence on a matter 

occurring before the last custody proceeding . . . unless the matter relates to a 

change in the factors relating to the best interests of the child as described in 

[I.C. § 31-17-2-8.]” Appellant’s Brief at 21. The trial court did not ignore 
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 21 of 33

Subsection 21(c), as Father claims, as it expressly included that language

elsewhere in its conclusions, namely in Conclusion 4.4

[35] Father also argues that Conclusions 3, 5, and 6, and the trial court’s manner of 

limiting evidence of matters occurring prior to the dissolution, were in conflict 

with Dwyer v. Wynkoop, 684 N.E.2d 245 (Ind. Ct. App. 1997), trans. denied. In 

that case, this court stated:

[W]hen parents stipulate as to who will have custody of the child 

and the trial court grants a summary dissolution on the basis of 

such agreement without hearing evidence on the issue of custody, 

there is no “custody proceeding” that would activate [Subsection 

21(c)] . . . Thus, this section does not apply to situations where 

custody was originally determined solely by stipulation of the 

parties.

Id. at 249. Father maintains that, pursuant to Dwyer, evidence of conduct prior 

to the dissolution would be new and material information and should have been 

allowed to be presented to the court and that, here, the court acted in 

contravention of Dwyer. We disagree.

[36] First, as stated above, Father has not specifically identified what evidence, other 

than the Prior GAL Report, which we have already addressed, should have 

been admitted or more fully allowed to be discussed. Second, and as Mother 

 

4 Conclusion 4 states: “Pursuant to Indiana Code § 31-17-2-8(c) [sic], ‘[T]he 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 a child as described in [I.C. 31-17-2-8] and, if applicable [I.C. 31-

17-2-8.5].” Appellant’s Appendix Vol. II at 23-24.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 22 of 33

observes, some testimony on the subject of Mother’s past boyfriends or prior 

conduct was, in fact, admitted. See e.g., Transcript Vol. 1 at 68 (Mother’s past

relationships), 239-41 (men living in her home and any criminal histories). 

Third, even if as Father claims it was error for the trial court to not more fully 

receive evidence on matters prior to the agreed dissolution, Father has not

shown that, if admitted, such evidence would “positively require” a change in 

custody. Kirk, 770 N.E.2d at 307. Thus, we find any error was harmless.

c. Standard for Modification

[37] Father also asserts on appeal that, in deciding whether to modify custody, the 

trial court applied “the wrong legal standard” and, more specifically, applied 

one that was more stringent than what I.C. § 31-17-2-21 requires. In support of 

his argument, he points to Conclusion 10, which states:

“Moreover, the non-custodial parent must show something more 

than isolated acts of misconduct by the custodial parent to 

warrant a modification of child custody; the non-custodial parent 

must show that changed circumstances regarding the custodial 

parent’s stability and the child’s well-being are substantial.”

Wallin, 668 N.E.2d [259,] @261 [(Ind. Ct. App. 1996)] citing 

Simons v. Simons 566 N.E.2d 551, 555 (Ind.Ct.App.1991)[.]

Appellant’s Appendix Vol. II at 25. He argues that requiring a parent to show 

“that changed circumstances regarding the custodial parent’s stability and the 

child’s well-being are substantial” is not an accurate statement. We agree with 

Father to the extent that this portion of Conclusion 10 somewhat muddles the 

correct standard, but we find that the remainder of the court’s findings and 
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conclusions state that, pursuant to I.C. § 31-17-2-21, a modification requires a 

showing of a substantial change in at least one of the statutory factors of I.C. § 

31-17-2-8, which section the court then fully sets out, as well as a showing that 

modification is in the child’s best interests. We find that, considering the order 

in its entirety, any misstatement in Conclusion 10 is not fatal to the court’s 

decision.

d. Findings as Unsupported by Evidence

[38] Father also challenges the denial of his request for modification by asserting 

that Findings 22, 28, 33, and 35 are not supported by the evidence. Finding 22 

states: “The DCS prepared a safety plan which specified that [X.B.] would not 

be in the presence of [Justin’s] children.” Appellant’s Appendix Vol. II at 20. His 

quarrel is that the Safety Plan does not actually state that they not be in each 

other’s presence; rather, it directs that the children be supervised when they are 

together. We are unpersuaded that Finding 22 is a clearly erroneous finding, as 

Father claims, and conclude that this technical distinction does not render 

Finding 22 as unsupported by the evidence. 

[39] Finding 28 states: “Both the Father and Guardian Ad Litem Harmon 

speculate, without any evidence in support thereof, that the [Mother] failed to 

adequately supervise [X.B.].” Id. Father maintains that GAL Harmon was not 

speculating because her concerns were based on, among other things, the 

forensic interview, DCS records, and medical records. GAL Harmon testified 

that she was disturbed that extensive and inappropriate touching went 

unnoticed. More specifically, she said “I just find it very hard to believe that 
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 24 of 33

activities of this nature could go on . . . for the period of time and the amount 

without anyone’s knowledge or suspicion.” Transcript Vol. 1 at 83. On crossexamination, she acknowledged that she was speculating as to the belief that 

someone should have known. Thus, the trial court’s Finding 28 was supported 

by the evidence.

[40] Father also argues that the evidence did not support Findings 33 and 35, which 

concerned where X.B. did or would attend school, and stated:

33. Father’s proposed modification would result in [X.B.]

changing schools.

* * *

35. It is not in [X.B.]’s best interest to modify the existing custody 

arrangement or to change his schooling from Clinton Prairie.

Appellant’s Appendix Vol. II at 21. Father maintains these are “erroneous on 

their face” because it is undisputed that neither parent lives in Clinton Prairie 

school system and, thus, “it does not follow that Father’s proposed 

modification would result in X.B. changing schools.” Appellant’s Brief at 28. 

The evidence, however, was that X.B. had been attending Clinton Prairie 

school even though neither parent was still living in that district and that 

Mother’s older daughters took him to school. Father testified that, if he were 

awarded primary custody, then X.B. would begin attending school in the 

district where Father lived in Tippecanoe County and would ride the bus. 

Father has not shown that the findings were unsupported by the evidence.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 25 of 33

e. I.C. § 31-17-2-8 Factors

[41] Father also argues that the denial of his petition to modify was erroneous 

because the trial court failed to consider all relevant factors under I.C. § 31-17-2-

8. In particular, Father notes that the trial court’s findings and conclusions “are

wholly void of relevant testimony of” Zimmer and GAL Harmon. Appellant’s 

Brief at 24. Father’s argument in this regard is essentially a request to reweigh

the evidence, which we cannot do. We recognize that Zimmer and GAL 

Harmon presented testimony and evidence that supported Father’s position in 

favor of modification, namely that he had the more stable home and that each 

recommended that he have primary physical custody. The trial court heard that 

evidence, along with all the other evidence, and denied Father’s Petition to 

Modify. This is not a case where the trial court failed to consider the necessary 

statutory factors; indeed, its order stated that it did consider the factors. It 

simply determined that Father “failed to establish the requisite change in any of 

the factors outlined in Indiana Code 31-17-2-8.” Appellant’s Appendix Vol. II at 

20. Father has not established that this determination was clearly erroneous.

[42] Indeed, Mother presented evidence that, upon learning of the inappropriate 

conduct, she promptly contacted Father and arranged to make a report to DCS, 

which she did. Father unilaterally took X.B. to the emergency room, the 

pediatrician, and a counselor. Mother agreed to the counseling, once she 

learned of it, but did not participate because, according to Mother, Father told 

her she was not allowed to. Mother did not believe that this was a situation in 

which X.B. had been bullied and was the victim of sexual assault. She agreed 
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 26 of 33

with Detective Roudebush and DCS that it was a situation that was definitely 

inappropriate and needed to stop, and that precautions should be taken to keep 

the children supervised at all times if together, but that it did not warrant 

criminal charges or DCS involvement. Mother ended her relationship with 

Justin, and she moved to a new town. She said X.B. was doing well in school 

and participating in football. While Father’s proposed modification would 

require X.B. to change schools, she stated that she would try to keep X.B. 

attending Clinton Prairie schools, with her daughters continuing to transport 

him, until they graduated at semester, at which time she would secure other 

arrangements. 

[43] Father’s Petition to Modify had asserted that X.B. was “not thriving under the 

current custodial arrangement.” Appellant’s Appendix Vol. II at 29. The trial 

court decided otherwise, and based on the record before us, we cannot say that 

its decision was clearly erroneous. Accordingly, we affirm the trial court’s 

decision to deny Father’s Petition to Modify.

II. Child Support

[44] Father challenges the trial court’s order of child support. “Decisions regarding 

child support rest within the sound discretion of the trial court.” Taylor v. 

Taylor, 42 N.E.3d 981, 986 (Ind. Ct. App. 2015), trans. denied. We reverse child 

support determinations only if the trial court abused its discretion or made a 

determination that is contrary to law. Id.
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[45] Here, the court ordered Father to pay child support in the amount of $106 per 

week. Initially, Father claims that the trial court should not have entered a 

support order in favor of Mother because “Mother never filed a cross motion to 

modify support[.]” Appellant’s Brief at 32. We reject Father’s argument. 

Father’s Petition to Modify asked the trial court to modify custody and order 

child support, asserting that “a modification in child support is warranted to 

reflect the new custodial arrangement.” Appellant’s Appendix Vol. II at 29. At the 

hearing, Mother requested that the court not modify the joint custody 

arrangement, but establish an order of support (as none has been provided in 

the parties’ Settlement Agreement), and she submitted a proposed child support 

worksheet that was admitted over Father’s objection. Both parties testified to 

their respective incomes, and Father later submitted a child support order with 

the court.5

 Given this record, the matter of child support was squarely before 

the court, and it was not error for the trial court to order child support.

[46] Father also asserts that the trial court erred in its calculation of child support.6 

Child support calculations are made utilizing the income shares model set forth 

in the Indiana Child Support Guidelines. In re Marriage of Duckworth, 989 

 

5 The record indicates that Father emailed his proposed findings of fact and conclusions of law, along with a 

proposed child support worksheet, to the court on September 19, 2018.

6 Father suggests that the trial court’s “wholesale adoption” of Mother’s proposed findings of fact and 

conclusions caused or at least contributed to the allegedly-erroneous calculation of child support. Appellant’s 

Brief at 29. As Father acknowledges, trial courts are permitted to adopt proposed findings. As Father further 

recognizes, the trial court here, made a number of minor technical changes or additions to Mother’s proposed 

findings and conclusions. We find that the trial court’s actions – to revise even small matters with which it 

did not agree – reflect the court’s careful review of the proposed findings. Father has failed to establish any 

error with the trial court’s use of Mother’s proposed findings and conclusions. 
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 28 of 33

N.E.2d 352, 354 (Ind. Ct. App. 2013). These Guidelines apportion the cost of 

supporting children between the parents according to their means. Id. A 

calculation of child support under the Guidelines is presumed valid. Id.

Indiana Child Support Guideline 3A(1) provides in part that “weekly gross 

income” is defined “as actual weekly gross income of the parent if employed to 

full capacity, potential income if unemployed or underemployed, and imputed 

income based upon ‘in-kind’ benefits” and that “[w]eekly gross income of each 

parent includes income from any source, except as excluded below, and 

includes, but is not limited to, income from salaries, wages, commissions, 

bonuses, overtime, partnership distributions, [and] dividends ....” Marshall v. 

Marshall, 92 N.E.3d 1112, 1117 (Ind. Ct. App. 2018).

[47] Father specifically challenges Findings 38, 39, 43, 44, which state:

38. The Father works at Frito Lay in the maintenance 

department, earning in excess of ninety-thousand dollars 

($90,000) in 2017.

39. For child support purposes, the Court finds Father’s income 

to be $1,693.73 per week.

43. Effective July 16, 2017, Father shall pay to Mother, by means 

of an Income Withholding Order, child support in the sum of 

$106.00 per week.

44. As of September 21, 2018, Father is in arrears in his child 

support obligations due to the retroactive modification in the sum 

of $6,572, which arrears shall be paid at the rate of $25.00 per 

week until paid in full.
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 29 of 33

Appellant’s Appendix Vol. II at 21-22. 

[48] In particular, Father claims that the court’s computation of his weekly gross 

income erroneously included overtime. Upon review, however, we find no 

error in the court’s determination of support, which was in accordance with 

Mother’s proposed child support worksheet. Her worksheet calculated Father’s 

weekly gross income at $1693.73 per week, which extrapolates to $88,036 per 

year.7

 Father testified that his income was approximately $90,000 in 2017, 

which would calculate to $1730.77 per week. He also testified that, as of the 

August 28, 2018 hearing, he had earned approximately $62,000 year to date, 

which – based on having been paid for 35 weeks of the year – calculates to 

$1771 per week. Furthermore, while Father testified that he earns $31.88 per 

hour and generally works 48 hours per week, he agreed that he sometimes 

works up to 56 hours per week. Given the record before us, Mother’s proposed 

weekly gross income amount for Father of $1693.73 was within the scope of the 

evidence presented. 

[49] Father also contends that the trial court erroneously ordered retroactive support 

“to a date that the Chronological Case Summary shows nothing being filed to 

base a retro[]active date on[.]” Appellant’s Brief at 33. Under Indiana law, “‘A 

trial court has the discretionary power to make a modification for child support 

relate back to the date the petition to modify is filed, or any date thereafter.’”

 

7 Father’s proposed child support worksheet assigned him weekly gross income of $1530 ($31.88 per hour at 

48 hours per week), or $79,560 per year.
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Taylor v. Taylor, 42 N.E.3d 981, 986 (Ind. Ct. App. 2015) (quoting Haley v. 

Haley, 771 N.E.2d 743, 752 (Ind. Ct. App. 2002), trans. denied. A “retroactive 

modification of support is erroneous only if the modification purports to relate 

back to a date earlier than that of the petition to modify.” Id. 

[50] Here, the trial court found that, as of September 21, 2018, Father “is in arrears 

in his child support obligation” in the amount of $6572 “due to retroactive 

modification[,]” but the court’s order does not identify a specific date when the 

retroactive child support obligation commenced. Appellant’s Appendix Vol. II at 

22. Father maintains that the retroactive date was July 16, 2019, Appellant’s 

Reply Brief at 15, whereas Mother asserts that it was June 2, 2017, Appellee’s Brief

at 44. We make no determination as to the date, but find that the trial court 

was within its discretion to order a support obligation to begin as early as June 

2, 2017, when Father filed his Petition to Modify. In sum, Father has not 

shown any abuse of discretion in the trial court’s child support determination.

III. Attorney Fees

[51] Father challenges the trial court’s award of attorney fees in favor of Mother. 

The trial court may periodically order a party to pay a reasonable amount for 

the cost to the other party of maintaining or defending a proceeding, including 

attorney fees. See I.C. § 31-17-7-1 (regarding custody issues); I.C. § 31-16-11-1 

(regarding child support issues). A determination regarding attorney fees in 

family law matters is within the sound discretion of the trial court and will be 

reversed only upon a showing of a clear abuse of that discretion. Bean v. Bean, 
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902 N.E.2d 256, 266 (Ind. Ct. App. 2009). In determining whether to award 

attorney fees, the trial court must consider the parties’ resources, their economic 

condition, their ability to engage in gainful employment, and other factors that 

bear on the award’s reasonableness. Id. The court may also consider any 

misconduct on the part of either of the parties. Martinez v. Deeter, 968 N.E.2d 

799, 810 (Ind. Ct. App. 2012). The trial court need not cite the reasons for its 

determination. Bean, 902 N.E.2d at 266.

[52] Here, the trial court ordered Father to contribute $4500 towards Mother’s 

request for attorney fees in the sum of $8500 (Exhibit F). Father argues that the 

trial court abused its discretion when it ordered him to pay a portion of 

Mother’s attorney fees because Mother has a steady income and, further, “there 

lacked testimony that [] Mother endured a hardship in paying her attorney.” 

Appellant’s Brief at 28. We find no abuse of discretion, however, with the trial 

court’s decision. The court heard evidence of the parties’ respective incomes, 

with Father earning $31.88 per hour and Mother earning $18.36 per hour. 

Father earned in excess of $90,000 in 2017. Mother had three prior-born

daughters living in her home (two were still minors), along with a grandchild. 

Mother testified that she had incurred attorney fees in connection with Father’s 

Petition to Modify and that she did not have the financial means to pay those 

fees. 

[53] The trial court determined that, “[b]ased upon the substantial disparity in the 

parties’ incomes and financial conditions and the nature of the litigation, the 

Father should contribute to Mother’s reasonable attorney fees.” Appellant’s 
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Appendix Vol. II at 22. We conclude that the trial court did not abuse its 

discretion in this determination.

IV. Cross Appeal: Appellate Fees

[54] Mother asks us to assess appellate attorney fees against Father pursuant to Ind. 

Appellate Rule 66(E) for substantive and procedural bad faith. The discretion 

to award fees under this rule is limited to instances when an appeal is 

“permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, 

or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 

2003). “To prevail on a substantive bad faith claim, the party must show that 

the appellant’s contentions and arguments are utterly devoid of all plausibility.” 

Id. Procedural bad faith “occurs when a party flagrantly disregards the form 

and content requirements of the Rules of Appellate Procedure, omits and 

misstates relevant facts appearing in the record and files briefs written in a 

manner calculated to require the maximum expenditure of time both by the 

opposing party and the reviewing court.” Id. 

[55] Mother argues that Father’s statement of facts was deficient, failed to include 

facts favorable to the judgment, and was argumentative, requiring Mother to 

spend time and expense to provide an appropriate statement of facts. Mother 

also argues, among other things, that Father “failed to support many of his 

contentions with cogent argument or citations to caselaw or the record.” 

Appellee’s Brief at 47. As Father observes, while App. R. 66(E) provides this 

court with the discretionary authority to award fees on appeal, we must use 
Court of Appeals of Indiana | Memorandum Decision 18A-DR-2786 | July 15, 2019 Page 33 of 33

“extreme caution” when exercising this power because of a potential chilling 

effect upon the exercise of the right to appeal. Gilbert v. Gilbert, 7 N.E.3d 316, 

324 (Ind. Ct. App. 2014). We conclude that, even if Father’s brief contained 

flaws, as Mother claims, any shortcomings were not so flagrant or significant as 

to constitute bad faith or vexatiousness. We thus decline to award Mother 

appellate attorney fees.

[56] Judgment affirmed.

Kirsch, J. and Vaidik C.J., concur.